partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
train
|
001-68582
|
ENG
|
POL
|
CHAMBER
| 2,005
|
CASE OF SZENK v. POLAND
| 4
|
Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
8. The applicant was born in 1929 and lives in Warsaw. 9. The applicant’s parents owned a two-storey building in Warsaw. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree provided for a possibility to obtain the perpetual lease of a plot of land on request. On 23 November 1948 the applicant’s parents filed such a request. At the beginning of the 1950s they were deprived of the right to manage the property and forced to renounce the rent collected from their tenants. 10. On 5 July 1967 the Board of the Warsaw National Council examined their request lodged in 1948. It refused to grant the applicant’s parents the perpetual use (former perpetual lease) of the land and declared that the building located on that land had become the property of the State. 11. On 4 December 1967 the Ministry of Municipal Administration dismissed the applicant’s appeal against that decision. It found that the building in question was not a small one-family house, which would qualify it for exclusion from the so-called “communal administration” of properties, provided for by a law adopted in 1957. As the building was covered by that administration, the Ministry considered that granting the perpetual use of the land would have no justification. 12. On 17 June 1991 the applicant filed with the Ministry of Construction a request for the annulment of the decision of 4 December 1967. On 1 April 1992 the Minister refused the request, considering that the challenged decision had been issued in accordance with the law. The applicant appealed. On 23 July 1993 the Supreme Administrative Court dismissed his appeal. 13. Subsequently, the First President of the Supreme Court filed with that court an extraordinary appeal against that judgment. 14. On 7 February 1995 the Supreme Court quashed the 1993 judgment of the Supreme Administrative Court and the decision of the Minister of Construction. It considered that they had relied on the conformity of the 1967 decisions with the “communal administration” of properties, whereas the law providing for such administration had been adopted after the date of lodging the request for perpetual lease and therefore could not apply. The court observed that the 1945 decree obliged the municipality to grant requests for perpetual use of land unless the use of that land by its former owner would be incompatible with its function set forth in the development plan. The Supreme Court pointed out that the organs dealing with the applicant’s request had not examined the issue of such compatibility. It made reference to the constitutionally guaranteed protection of property, pointing out that the applicant’s property had been expropriated on unspecified legal grounds and no compensation had been awarded therefor. 15. On 24 August 1995 the Minister of Construction, having regard to the Supreme Court’s judgment, declared that the part of the decision of 4 December 1967 concerning those flats in the disputed building which had been already sold by the municipality to their tenants had been issued in breach of the law. However, it was impossible to declare the decision null and void since, under applicable law, if more than ten years had elapsed from the date on which such an unlawful decision had been given, the Minister could only declare that it had been issued in breach of the law. The Minister annulled the remainder of that decision. In consequence, the appellate proceedings in respect of that part of the July 1967 decision were re-opened. 16. On 23 November 1995 the Warsaw Self-Governmental Board of Appeal quashed the decision of 5 July 1967 and remitted the case for re-examination. 17. In 1996 the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw, who was competent to deal with the case. 18. On 16 September 1996 the Warsaw-Centre Municipal Office requested the applicant to provide it with a copy of judicial decisions identifying his parents’ heirs. On 3 and on 23 October 1996 the applicant submitted the requested information. On 23 October 1996 three heirs of the former co-owner Ms J.K. declared their wish to join the proceedings. On 30 October 1996 the former co-owner D.K., who had later changed her name to D.Sz., also declared her wish to do so. 19. On 21 November 1996 the Warsaw-Centre Municipal Office requested the Department of Town Planning and Architecture of the District Office Praga Południe to submit an extract from the town planning scheme concerning the plot under dispute. 20. Also on 21 November 1996 the Warsaw-Centre Municipal Office informed the applicant about the problems hindering it from taking the requested decision. The first problem consisted in the fact that the applicant’s mother had lodged her request to be granted the right to perpetual use before the State Treasury became officially the owner of the plot. Another difficulty arose from the fact that the heirs of Ms J.K. – the former co-owner of the plot – had not submitted to the Office their legal titles to the ownership. Finally, it was necessary for the Office to obtain the extract from the town planning scheme concerning the plot. In order to clarify the legal consequences arising from the first problem the Office had posed a legal question to the Supreme Administrative Court, asking if the requirements of the 1945 Decree were fulfilled when the request had been lodged before the plot in question came officially into the ownership of the State Treasury. The applicant was informed that as soon as the answer was provided the Office would proceed further with his request. 21. On 29 November 1996 one of the heirs of the former co-owner presented to the Office a decision stating that the part of the plot belonging to the late Ms J.K. had been inherited by six persons (Ms Z.W., Mr H.K., Mr M.K., Ms T.P., Ms K.F and Ms R.K.). She additionally informed the Office that certain other inheritance proceedings concerning the estate of Ms J.K.’s late heirs were pending. 22. On 9 December 1996 the Warsaw-Centre Municipal Office received the extract from the town planning scheme concerning the plot. 23. The examination of the case not having commenced for over a year, the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw. On 21 February 1997 the Board of Appeal found the applicant’s complaint well-founded and ordered the Mayor to finish the examination of the case by 31 March 1997. 24. On 22 February 1997 one of the heirs of the former co-owner Ms J.K. informed the Office that the inheritance proceedings concerning the estate were still pending. 25. On 30 April 1997 the applicant requested the Office to issue in his case not one but two decisions granting him the right to perpetual use of the plot concerned. He argued that before the plot came into the ownership of the State Treasury, it constituted two separate plots. In consequence, the Office should restore the original legal situation of the property and should issue two separate decisions granting the applicant the right to perpetual use of the separate plots of land. 26. On 30 April 1997, at the request of the Office, an expert submitted an evaluation report concerning the value of the plot. 27. On 28 July 1997 one of the heirs of the former co-owner informed the Office that the inheritance proceedings had been terminated. She submitted a copy of the court’s decision of 18 June 1997. The decision awarded the estate to Mr M.K., Mr H.K. and Mr R.A.K. 28. On 15 September 1997 the applicant submitted to the Municipal Office a copy of a request lodged with the court by a certain Ms H.K. She requested the court to quash the court’s decision of 18 June 1997 in the part concerning the estate of Mr M.K. She argued that already by 2 March 1978 she had been declared his heir. 29. On 30 September 1997 the applicant requested the Office to grant him the perpetual use but only in regard to a part of the presently existing plot. This part of the plot had earlier constituted a separate plot. 30. On 16 December 1997 the Warsaw-Centre Municipal Office requested the Deputy Director of the Board of the District Praga Południe to prepare a socalled “map of legal status” of the plot. 31. On 29 January 1998 the Supreme Court quashed the decision of 18 June 1997 concerning the estate of Mr M.K. As a result, Ms H.K. inherited the entire estate of the late Mr M.K. On 14 May 1998 the District Office Praga Południe informed the Warsaw-Centre Municipal Office that the lawful division of the building was impossible because it did not possess a mandatory anti-fire wall. In the light of this information the Office decided that an expert opinion should be prepared. On 22 June 1998 the expert submitted the opinion. He stated that the lawful division of the building was possible. 32. On 16 July 1999 the Municipal Office requested the District Office Praga Południe to issue a decision confirming the division of the plot was possible and an approval of the division of the plot. 33. On 15 July 1999 the Office requested Ms H.K. to provide it with a copy of the court’s decision which had awarded her the estate of the late Mr M.K. She did so on 30 July 1999. 34. On 29 July 1999 the Warsaw-Centre Municipal Office informed the applicant and other heirs of the former co-owners that it had instituted ex officio administrative proceedings concerning the division of the plot. It was explained that the decision approving the division of the plot would make it possible to determine the parties’ shares in the co-property and that, in turn, this would make it possible to give a decision conferring the right to perpetual use of the plot. By a letter of 30 July 1999 the parties to the proceedings were requested to appear within a fourteen days time-limit in order to express their opinion concerning the planned division of the plot. 35. On 18 August 1999 Ms H.K. and on 23 August 1999 Ms Z.W expressed their consent to the division. 36. Due to the fact that not all persons summoned to do so, including the applicant, had expressed their consent to the planned division of the plot, on 2 September 1999 the Office discontinued the proceedings in its part concerning the division. On 15 September 1999 the applicant appealed against that decision to the Board of Appeal. 37. On 27 September 1999 the applicant lodged with the Supreme Administrative Court a complaint about the further inactivity on the part of the Mayor and the Office. 38. On 2 March 2000 that court ordered the Mayor to deal with the case within three months. The court considered that the manner in which the proceedings had been conducted disclosed improper functioning of the administrative authority concerned and a flagrant breach of the provisions of the Code of Administrative Procedure relating to the time-frame within which administrative cases should be dealt with. 39. On 10 July 2000 the Board of Appeal dismissed the applicant’s appeal against the decision of 2 September 1999 to discontinue the proceedings concerning the division of the plot. On 8 August 2000 the applicant lodged a further appeal against that decision. On 7 January 2002 the Supreme Administrative Court dismissed his appeal. 40. On 25 July 2000 the Mayor of Warsaw stayed the proceedings concerning the applicant’s request to grant him the perpetual use of the plot of land relying on the fact that the perpetual users of the land had not expressed their consent to division of the property and obliged thereby all heirs to institute civil proceedings in which a court would give a decision on such division. The applicant appealed. On 22 August 2001 the Board of Appeal allowed his appeal and discontinued the proceedings IN SO FAR as they related to the decision of 25 July 2000 to stay the proceedings. The Board of Appeal observed that the decision of the civil court on the division of the estate of the late former owners was wholly unnecessary for the continuation of the administrative proceedings at hand, a decision determining the shares of the heirs in the estate having already been given in the inheritance proceedings. 41. The applicant appealed against this decision. On 30 September 2003 the Supreme Administrative Court dismissed his appeal, observing that the second-instance decision of 22 August 2001 was in fact favourable to him. 42. The proceedings concerning the applicant’s request for award of the right to perpetual use of the plots concerned are pending. 43. According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Article 37 of that Code provides: “§ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level. § 2. [That] organ, having found the complaint well-founded, shall fix an additional time-limit for the completion of the case ...” 44. Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such inactivity. 45. Section 26 of the Law provides that the Court, having found such a complaint well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity. 46. Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, the complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure. 47. In accordance with the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant: “Article 5. Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise. Article 7. (1) The owner of a plot of land ... can within 6 months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land. (5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9. Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated. Article 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...” 48. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 49. Pursuant to Article 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. 50. The Local Self-Government Act of 10 May 1990 re-established local self-government. Pursuant to Article 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. 51. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it.
| 1
|
train
|
001-68880
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,005
|
HUDSON v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4
|
Inadmissible
| null |
The applicant, Mr Richard Owen Hudson, is a British national, born in 1955 and living in Derby, United Kingdom. He is represented before the Court by Mr S. Jacobi, a lawyer practising in the United Kingdom. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a driver of one of the lorries that transported oil for NATO from Greece to the former Yugoslav Republic of Macedonia. He was involved in a car accident that happened on 26 July 1999, around 9.30 p.m., in which two persons lost their lives and three others were injured. At 10.50 p.m., the investigating judge on duty was informed about the accident. At 11.15 p.m. the investigating judge and the public prosecutor went to the scene. A record of the scene was made and personal data taken from all participants in the incident as well as data concerning the vehicles. The inspection report of the investigating judge stated, inter alia, the following: “... GENERAL CONDITIONS The inspection was carried out at night, with no visibility and under dry and windy weather conditions. The traffic accident had happened about 10.00 p.m. under the same weather conditions ... There are road markers on both sides of the road. The road has a horizontal sign - a full white line ... ...” The report described the traces made on the road by the car, the position where broken glass and different parts of the car were found, and the damage suffered by other vehicles in the incident. The investigating judge ordered that an expert report on civil engineering be prepared, photos be taken of the location of the accident and the applicant's blood be tested for possible presence of alcohol. She also took away the tachograph tape of the applicant's vehicle. At 10.00 a.m., there was a hearing before the investigating judge. The applicant appointed a local lawyer on the recommendation of the British Consul. The applicant and his lawyer were present at the hearing. The minutes of the hearing, signed by the applicant, the judge and the interpreter, stated as follows: “Due to the fact that the defendant is a foreign citizen and does not speak Macedonian, an authorised court interpreter, Petkova Projka from Gevgelija, was present at the questioning. He was informed of the [Public Prosecutor's] Request to Open Investigation Proceedings with proposal that the applicant be put in detention ... dated 27.7.1999 on reasonable suspicion that he had committed a criminal offence of having endangered traffic safety within the meaning of Article 300 § 4 in connection with Article 297 § 3 of the Penal Code. The court interpreter was replaced before the applicant had been informed of the [prosecutor's] request. Kristina Prenda [the second interpreter] from Gevgelija was engaged as a sworn court interpreter of the Gevgelija Trial Court. After the applicant had been informed of the Request submitted by the prosecution [and] translated by Kristina Prenda - the interpreter ... the defendant stated that he had understood the Request to Open Investigation Proceedings with the proposal that the applicant be put in detention pending trial. In accordance with Articles 3, 63 and 210 of the Code of Criminal Procedure [the applicant was informed] that he was entitled to remain silent, that he had the right to defend himself in any way he perceived best, or not to present his defence and not to answer questions, that he could call evidence and could appoint a legal representative, and, indeed, he appointed Saso Dukovski from Skopje as his legal representative ... The defendant stated that he would remain silent, but that he would give his defence later in view of the fact that he felt depressed due to the accident. ... The applicant's legal representative proposed that the applicant should not be detained pending trial, as there were no circumstances indicating that the defendant should be put in pre-trial detention, or that he would tamper with witnesses, or re-offend, and bearing in mind that the British Embassy would not allow the defendant to leave the territory of the [former Yugoslav] Republic of Macedonia and would not issue him a new passport. The defendant stated that he had stopped of his free will and had not tried to abscond [from the place of accident] ...” The investigating judge decided to detain the applicant pending trial. The same day the investigating judge interrogated the other three drivers who drove lorries in the convoy with the applicant. They were from Croatia and Bosnia and Herzegovina. From the minutes of the questioning of two of them it appears that the applicant's lawyer was present at the questioning. According to their separate accounts they had been driving at a speed of 70 km/hour in the direction Gevgelija-Skopje. The applicant, who was the last in the motorcade, overtook the third lorry on the section of the road that was marked with full white line on their side. When the applicant had started overtaking the second lorry and had been positioned on the lane reserved for the vehicles coming from the opposite direction, the driver of the first lorry had noticed that a car appeared from the curve and gave a signal to the applicant. The applicant had been trying to return to the lane, while the car had started to brake in order to avoid the collision with the applicant's vehicle. It had not bumped into the applicant's vehicle, but went to the right and off the asphalt road. As a result a huge amount of dust arose, so the witnesses had been unable to see what happened afterwards. One of the witnesses stated that he had noticed that the applicant had managed to return to the right lane. Afterwards he noticed that the front left side of the last lorry in the motorcade had been damaged and behind it the car had tumbled over on its right side. On 29 July 1999 the three passengers in the car gave evidence to the investigating judge. The applicant's lawyer, albeit summoned, failed to appear at the hearing. According to their statements, on 27 July 1999 they had been travelling from Valandovo to Gevgelija in their cousin's car. After they had passed a curve, they suddenly noticed that their lane had been blocked by a freight vehicle coming from the opposite direction. The driver of the car had started to brake. In order to avoid direct collision the driver had turned sharply to the right and went off the asphalt road to the earth path. Their car had hit the grass embankment, and then the driver turned the steering wheel to the left. The car had started turning around and couple of times it hit one of the freight vehicles. It had continued to slide and stopped overturned on its right side. The witnesses had pulled themselves out of the vehicle and were taken to hospital in a taxi. On 29 and 30 July 1999 the brother and the father of the deceased gave evidence to the investigating judge. By decisions of 25 August, 24 September, 22 October and 19 November 1999 the investigating judge extended the applicant's pre-trial detention. The applicant's lawyer objected to the expert report, communicated to him on 1 October 1999, as regarded its estimation of the speed at which the applicant and the car were travelling, and requested the expert to prepare an additional report. A translation of the report was transmitted to the applicant on 5 October 1999. At a later date further information was provided by the expert. On 6 October 1999, the applicant was brought before the investigating judge to give his view of the evidence presented so far. His counsel and the interpreter were present. The applicant maintained his right to silence. He and the interpreter signed the minutes. The applicant claimed that only those questions which dealt with his basic personal details were interpreted to him and that he was unaware of the purpose of the hearing. On 20 October 1999, the applicant, who remained in pre-trial detention, was indicted for causing death and injuries by negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code. The indictment contained a schedule of the evidence which the Public Prosecutor adduced before the court. On 22 October 1999, the court interpreter who had immediately translated the contents of the indictment, gave a copy to the applicant. A copy was also given to the applicant's counsel. On 4 November 1999, a translated copy of the indictment was given to the applicant. On 17 November 1999 a hearing took place before the Gevgelija Trial Court. The public prosecutor read out the indictment which contained a schedule of the evidence on which the prosecution relied. The interpreter orally translated the indictment. In the minutes it was recorded that the applicant stated that he had understood the indictment. The applicant, in the presence of his lawyer, gave the following account: “On 27 July 1999 around 9.15 p.m. I was travelling from Greece to [the former Yugoslav Republic of] Macedonia and I had already completed all procedures at the border. I was driving at a speed of 70 km/hour [in a motorcade] with three freight vehicles. First I started overtaking the third vehicle and I passed it, then I started overtaking the second vehicle in order to come behind the first freight vehicle. While I was positioning myself behind the first vehicle I noticed that from the opposite direction a vehicle was approaching, that is, I first saw the light of the vehicle and then the vehicle. I actually heard the sound of the vehicle that was braking out of control. Then I shifted behind the first vehicle and in order [for me to enter the right lane] the second vehicle decelerated its speed and I started to move behind the first vehicle. I had no reason to stop because I did not bump into anything, my vehicle and the vehicle from the opposite direction passed one by another. I started to decelerate. ... The first vehicle started to decelerate and I slowed down without braking ... Then the police came and they approached my lorry - all of that in about twenty minutes. My passport was taken away, then I waited for half an hour and during that time I walked towards the vehicle, I mean the passenger vehicle, however, I could not get to it because there were so many people. ... Then I went as, I said above, in the police vehicle. Then I was taken to hospital and to the site where the accident happened ... I do not agree with everything that is stated in the indictment. I was not driving at a speed of 90 km/hour, I was driving at a speed of 70 km/hour. I did not see where the passenger vehicle was hit, I only saw that we passed one by another and then I lost it from sight. I think that the passenger vehicle was going at speed superior to 117 km/h. I think that the driver of the passenger vehicle had time to pass by safely and I think that the driver of the passenger vehicle, in a moment of panic, lost control of the vehicle. Maybe my lights blinded the driver of the passenger vehicle because in Britain the lights are directed oppositely, since we drive on the left side. ... The fact that I was driving at a speed of 70 km/h I noticed from my tachograph. I had a tachograph in the vehicle when I entered [the former Yugoslav Republic of] Macedonia. I used the tachograph for twenty-four hours in my vehicle. On 26 July in the vehicle I put two tachographs, one in Greece which is a member of the European Union and one in [the former Yugoslav Republic of] Macedonia ... I am hundred percent sure that I changed the tachograph at approximately 8.30 p.m. on the territory of [the former Yugoslav Republic of] Macedonia ... I changed the tachograph because of a different law of the European Union - a different regime. ... The police requested my tachograph, I gave them the tachograph, and I want to make this clear: I gave three tachographs to the police, the tachographs that I previously pulled out and put into a folder, one of which I took out of the lorry and the other two that had already been pulled out. ... [The speed] of my vehicle is limited to 85-86 km/hour according to the mechanic in the tachograph centre in Britain. The speed can vary 88, 86 km/h the most. ... The lights of my vehicle such as they are positioned helped me to see the passenger vehicle and maybe they blinded the passenger vehicle. The first time that I saw the light from the opposite side I thought that they were from another road, because of the curve and the angle of movement of light. And then the lights suddenly turned towards me. ...” At that hearing the passengers from the car were also interrogated. They confirmed their statements given to the investigating judge. From the minutes it appears that the parties stated that they had not had any questions to put to the passengers. The drivers of the articulated lorries, albeit summoned, failed to appear before the court. The expert on civil engineering gave, inter alia, the following account: “On the ground of the evidence submitted ... I prepared a written report ... I calculated and established the speed of the defendant before the overtaking and at the time of the overtaking according to the tachograph log sheet submitted from [the applicant's] vehicle and from the other tachograph log sheets taken from the three other freight vehicles. From the tachograph log sheet of the defendant in Greece after 12 noon [it appears that] he drove at a speed of 60 to 90 km/h and in some places he even moved with [speed] superior to 100 km/h, those were only occasional movements. ... The tachograph log sheet was taken out at 8.30 p.m. That means that the tachograph log sheet shows the movement of the vehicle only until 8.00 p.m. and not after that. The log sheet until that time was in the tachograph. This is a one day log-sheet. [The log sheet] is unified and he could have entered [the former Yugoslav Republic of] Macedonia with it. ... The speed of the other freight vehicles was established completely from the tachograph log sheets. It was approximately 70 to 72 km/h .... All three [other freight] vehicles moved at the constant speed of about 72 km/h. For the defendant to overtake and the fact is that he overtook [them], the speed has to increase, at least for 20 km/h, since we know that the [other] vehicles were moving at 70 km/h. ... The tachograph log sheet ... it cannot be established from which vehicle it originates nor the date can be established since it has to be noted down. If the time on the watch of the tachograph is set accurately than the time when the accident happened cannot be registered on the tachograph of the defendant. The [number] of km that appear on the tachograph of the defendant of 230km matches the number of km between Pathras and Evzoni ... The distance between the third and the second vehicle was approximately 200m to 250m and was enough if [the applicant] was moving at speed of 90 km to overtake the third vehicle ... and to start overtaking the second vehicle ... Estimated from the tachographs, the car accident happened between 9.32 p.m. and 9.44 p.m. depending on the time set on the watch of the tachograph. The line of diagram of the defendant shows 90 km/h. ... I took a general position that the maximum allowed speed was 100 km/h. If the driver or assistant driver, I am talking in general, is fastened with a safety belt, the probability that he would be thrown out from the vehicle in the case of the accident is very small. In this particular case, I do not know if the driver and assistant driver were fastened ...” As the applicant's counsel put questions to the expert which he could not answer immediately, it was proposed to put the questions in writing for the expert to give his view later during the proceedings. Although an interpreter was present at the hearing, the applicant alleges that only the questions put to him were interpreted. The hearing resumed on 1 December 1999 when again, according to the applicant, only questions directed at the applicant were translated by the interpreter. The expert replied to the defence counsel's previous questions. Defence counsel applied to obtain fresh expert evidence. The prosecution objected. The court rejected the application. At the hearing of 13 December 1999 the medical expert gave evidence. The other drivers in the convoy still did not appear. With the agreement of the public prosecutor and defence counsel, their statements before the investigating judge were read out. The court again rejected the defence's proposal to obtain further expert evidence, finding that the explanations by the expert had established the facts to a sufficient extent. The final remarks of the parties were delivered. On 16 December 1999 the applicant was found guilty of having committed a criminal offence with negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code by the Gevgelija Trial Court. In particular, he had not observed the traffic rules and as a result of his negligent behaviour two people died and three other were injured. He was sentenced to two years and six months' imprisonment by the Gevgelija Trial Court. The court had examined additionally the statement of the father of one of the victims, the report of the Republic Institute of Jurisprudence Expertise, the report of the investigation on the spot with the sketch-map, the police report, the photos, the blood and urine test and the hospital discharge of the three passengers. Relying on the above evidence the court, inter alia, found that: “... on the motorway Gevgelija-Skopje the defendant, travelling constantly at 90 km/h, which is 20km/h faster than the allowed speed for that category of vehicles, overtook the third freight vehicle and lined in the motorcade behind the second freight vehicle, shortly after at the same speed, he started outflanking and overtaking the second freight vehicle, although it was dark and the visibility was low, nearby the difficult curve to the right, where ... a white full line indicates that overtaking and driving in the first lane is prohibited, just as the defendant was about to complete his action, a car appeared ... ... from the curve on the opposite side of the motorway, because of the imminent danger of direct collision the driver now deceased started intensively to brake and after some time of intensive braking on his right lane, he stopped braking and turned the steering wheel to the right, avoided the collision with the defendant's vehicle and [the car] skidding went to the right and it completely went off the motorway into the right [grass] embankment, hit it, returned to the motorway where it turned over several times and overturned [the car] had slid for about 60 to 65 meters it went on the left lane where it first hit the left front of the third vehicle in the motorcade, driven by Lukica Menalo, and then it hit the left side [of the same vehicle] where the tool and spare tires are usually kept. According to the tachograph sheets taken from the freight vehicles of Lukica Menalo, Marijo Grmoja and Mile Maslac [the drivers], it is established that their vehicles [had been travelling] at constant speed of about 70 to 72 km/hour. The tachographs were in the mentioned vehicles [of Lukica Menalo, Marijo Grmoja and Mile Maslac] at the time of the accident. The tachograph taken from the defendant's vehicle shows that it had been put on 9.07 a.m. on 26 July 1999 and had been removed at 8.30 p.m. i.e. before the accident happened ... .and was sufficient that the defendant moved at speed of 90 km/h which was 20km/h more than the speed of the third and the second freight vehicle and it was approximately 20km/h higher than the allowed speed for that category of vehicles ... [to overtake the lorries].” On 24 January 2000 the applicant's lawyer lodged an appeal with the Skopje Appellate Court. He complained, inter alia, that the lower court: a) had failed to give reasons for its finding that the defendant's vehicle had been travelling at 90 km/hour; b) had considered the incorrect tachograph evidence; c) had failed to ensure that the car was subject to a technical examination; d) did not note that the expert report on civil engineering was imprecise, that some elements were incorrect and that this shortcoming was not corrected in the additional report; e) had failed to afford the defence the facilities to arrange for the blood of the deceased driver to be examined for its alcohol or drug content; f) had based its judgment on the witnesses' statements which were imprecise and inconsistent; and g) had paid little if any intention to the individual responsibility of the driver, as he drove at a higher speed than that allowed at that section of the motorway, that the car had not been technically examined and that the passengers had not fastened their seat belts. At the public hearing of 14 March 2000, in the presence of another court interpreter, the Skopje Appellate Court dismissed the appeal and endorsed the reasons in the lower court's decision. The Skopje Appellate Court reduced the applicant's sentence to two years' term of imprisonment holding that the fact that the driver of the car had been driving at a higher speed than the one allowed was a mitigating circumstance in respect of the applicant's guilt. The applicant alleged that nothing was translated to him apart from the figure “two years”. On 29 April 2000, the applicant submitted an extraordinary petition for review to the Supreme Court, claiming inter alia that the facts of the case had not been properly established and the evidence wrongly assessed. On 1 June 2000 the Supreme Court refused to examine the extraordinary petition for review (Барање за вонредно преиспитување на правосилна пресуда). The court, inter alia, found that the applicant was served with the Appellate Court's judgment through the court interpreter on 27 March 2000. The applicant's lawyer lodged the above petition with the Supreme Court on 29 April 2000, therefore after the one-month time-limit prescribed by Article 411 § 2 of the Code of Criminal Procedure. On 12 July 2000 Gevgelija Trial Court ordered the applicant to pay damages to the victims of 4,310,000 denars. In December 2000 the applicant was released from prison and returned to the United Kingdom. After his arrest on 27 July 1999, the applicant claimed that he was forced to sleep in a chair in the police station and that he was given limited food. During his time in Gevgelija prison, he claimed that he shared a cramped, squalid cell without running water and with poor sanitary facilities. Although his cell had two beds and he mostly shared with another prisoner, there were occasions when there were five in the cell, with three sleeping on the floor. He spent 31 days in solitary confinement in a cell with a hole in the ground as a toilet. The Government stated that on arrival at the police station on 27 July 1999 the applicant was accommodated in the office of the police administrator until 8.00 a.m. and that he was given food and watermelon. He contacted his wife several times by phone. After 8.00 a.m., he was placed in the detention room, which had sanitary facilities and running water. On the way to court for the hearing at 10.00 a.m. he was given a sandwich. After he was remanded in custody, at 8.20 p.m. on 27 July 1999 the applicant was taken to Gevgelija prison where he was accommodated initially alone in a double cell. On 28 July 1999, the vice consul of the British Embassy accompanied by the applicant's lawyer visited the applicant there. After some time, another inmate joined him in the cell and for a certain period he was detained in a three-bed cell. The detention facilities in the prison had been renovated in 1998 and each cell had a sanitary facility and running water. There were showers and shaving facilities available separately. The applicant was checked by the prison doctor regularly and on his request on five further occasions while on four occasions he was able to see a specialist outside the prison. On 29 March 2002 the applicant was sent to Idrizovo Prison in Skopje to serve his sentence. Article 22 § 6 provides, inter alia, that a bench of three judges of the first instance court shall decide on appeals lodged against the decisions of the investigating judge. Article 382 § 1 provides, inter alia, that a person shall have the right to appeal against the decisions of the investigating judge. Article 3 §§ 1, 2 and 3 provides, inter alia, that a person who has been summoned or apprehended shall be informed promptly, in a language that he understands, of the reasons for his summoning, apprehension or any charge against him, of his legal rights, and shall have the right not to make any statements. He shall be informed of his right to remain silent, to consult with a lawyer, to have a lawyer of his choice present during questioning, as well as, to inform a third party of the fact of his detention. Everyone arrested or detained shall be brought within 24 hours before a judge who shall promptly decide on the lawfulness of the detention. Article 4 §§ 1 and 2 provides, inter alia, that everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail of the accusations and circumstances against him, shall have adequate time and facilities for the preparation of his defence and the right to communicate with the legal representative of his own choosing, to be present at the trial and to defend himself in person or through legal assistance of his own choosing, to be given free legal assistance, when the interests of justice so require and to examine or have examined witnesses. Article 63 §§ 1 and 2 provides, inter alia, that every person has a right to be legally represented in pre-criminal and court procedure. Before the first interrogation, the suspect in pre-criminal procedure and an accused person must be informed of the right to have a legal representative of their own choosing who may be present at the interrogation. Article 70 provides, inter alia, that everybody detained shall have the right to consult his legal representative without any restriction or supervision. Article 71 provides, inter alia, that the legal representative may undertake all the actions that the applicant has the right to undertake on the applicant's behalf. Article 186 provides, inter alia, that the investigating judge shall promptly inform an arrested person of the right to appoint a legal representative who may be present at his questioning and shall assist the arrested person in finding a legal representative if the need may be. Article 7 §§ 2 and 3 provides that everybody in the criminal proceedings shall be informed of his right to the free assistance of an interpreter provided that he cannot understand or speak the language used in court. Article 8 § 4 provides that a foreign citizen who is apprehended shall have the right to submit his documents to the court in his language. Article 210 §§ 1, 2, 4 and 8 provides, inter alia, that the accused who is being questioned shall first be asked about his personal data. Then he shall be informed of charges against him, the reasons why he is a suspect and he shall be asked to put forward his defence. He shall be informed of the right to remain silent. He may make statements without any restrictions in respect of facts against him and may state all facts in his defence. The accused may be questioned only after he finishes his statement. A person may be questioned in the absence of his legal representative only if he waives this right, save in cases when the law provides that the presence of a legal representative is obligatory. Article 193 § 4 provides, inter alia, that everybody detained pending trial may ask to be put alone in a pre-trial detention facility. Article 194 §§ 1, 2 and 3 provides that the persons detained pending trial shall have the right of an uninterrupted daily rest of eight hours. They may obtain food, clothes, bed sheets, books, newspapers at their own expense if approved by the investigating body. The detained persons may use means necessary to maintain the hygiene in the pre-trial detention facility. Article 195 provides, inter alia, that the officials working for the diplomatic representative offices may, on the approval of the investigating judge, visit and speak without any supervision with a person detained pending trial who is a citizen of their country. After the person is indicted such an approval shall be given by the president of the bench. Article 197 §§ 1, 2 and 4 provides, inter alia, that the president of the competent trial court shall supervise the conditions of detention of the persons detained pending trial. He shall visit the detained persons at least once a week and, without the prison warders being present, inquire with the detained persons about the food they are given, other necessities and the treatment that they have received. The responsible judge shall undertake all the necessary measures to correct all the shortcomings in this respect. The president of the competent court and the investigating judge shall have the right to visit the detained persons at any time, speak to them and hear their complaints. Under Articles 69 and 124 a lawyer has the right to consult all the documents in the case-file from the day the prosecution authorities request the investigating judge to open preliminary investigation. A defendant enjoys that right from the day he has been questioned by the investigating judge. Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation. Article 161 §§ 4 and 7 reads as follows: “4. The prosecution, the defendant and the defendant's lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ... ... 7. Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ...” Article 319 § 1 provides, inter alia, that at the trial after the presiding judge has finished the interrogation of a witness or an expert, the accused and his lawyer have the right directly to put questions to him on the approval of the presiding judge. Article 325 § 1 reads as follows: “When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine him shall not be lost because the transcript of his statement is read out, or because he has already given a written statement.” Article 307 §§ 1 and 2 provides that the indictment against the defendant shall be read out at the beginning of the hearing by the prosecutor. Article 308 §§ 1, 3, 4 and 5 and Article 309 § 4 provide that after the indictment is read out or orally explained the presiding judge shall interrogate the defendant. He shall ask the defendant whether he understands the indictment and if not the presiding judge shall elaborate it. Then he will ask the defendant to give his opinion on each of the items of the indictment and to present his defence. The defendant shall have the right not to give his defence. After the interrogation of the defendant the presiding judge shall ask him if he wishes to add something in connection with his defence. Article 310 § 1 provides, inter alia, that the prosecutor and the legal counsel may interrogate the defendant. Article 274 §§ 1 and 2 reads as follows: “1. The parties shall have the right to call ... evidence at the hearing even after the case is listed for a hearing. 2. If the presiding judge dismisses the request to call fresh evidence, the parties shall have the right to call evidence at the public hearing.” Under Article 314 § 2 the courts may obtain, even at their own motion, evidence which they consider will assist in establishing the truth. Article 354 read together with Articles 355 § 3 and 275 provides that an appeal may be lodged with the Appellate Court when a hearing took place in the absence of the court interpreter. Article 411 §§ 1 and 2 reads as follows: “(1) A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an extraordinary petition for review in the cases set forth in this Code. (2) [The extraordinary petition for review] may be lodged within one month from the day the accused was served with a binding judgment” Article 412 reads as follows: “The Supreme Court shall have jurisdiction to deal with such an extraordinary petition for review.” Article 413 § 1 in conjunction with Article 356 §§ 1, 2, 3, 4 and 6 lays down that the above petition may be lodged on the grounds that the act or omission of the convict does not constitute a criminal offence under the Penal Code, there is a justification excluding criminal responsibility, there is a justification excluding the prosecution of the convict (for example: he is granted amnesty), the lower courts applied law wrongly and a heavier penalty is imposed than the one prescribed by the Penal Code for such an offence. Article 413 § 2 in conjunction with Article 355 §§ 1, 5, 8, 9 and 10 lays down that such a petition may be lodged on the grounds that the bench was improperly composed or the judgment was rendered by a judge who was not present at the hearing, the convict was not prosecuted by a competent prosecutor, the final judgment is based on inadmissible decisive evidence, the courts decided on issues other than the ones set out in the indictment and there is a breach of the principle of reformatio in pejus. Article 413 § 3 specifies that such a legal remedy may be lodged if the convict's right to defence was breached during the course of the trial, or because the provisions of the Code of Criminal Procedure in respect of the appellate proceedings were breached provided that that was decisive for the outcome of the proceedings. Article 414 §§ 2, 3, and 5 provides, inter alia, that the petition for review shall be lodged through the trial court, that the president of the trial court or of the competent court shall refuse to examine the extraordinary petition for review which was lodged out of the time limit, and that the competent court may decide to suspend an execution of a binding judgment until the petition for review is dealt with. Article 415 in conjunction with Article 408 provides that when the Supreme Court grants the above petition it may substitute the binding judgment with its own verdict or quash the decisions of the lower courts and remit the case to them, or declare that the lower courts erred in law.
| 0
|
train
|
001-113411
|
ENG
|
AUT
|
CHAMBER
| 2,012
|
CASE OF JEHOVAS ZEUGEN IN ÖSTERREICH v. AUSTRIA
| 3
|
Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion);Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 2 of Protocol No. 1 - Secure the payment of taxes);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
|
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
5. The applicant community was at the time of the events complained of a registered religious community established in Austria under the Religious Communities Act 1998. Since 7 May 2009 it has had the status of a religious society, a status conferred by statute. 6. In 2002 the applicant community wished to employ a couple, G.V. and V.T., who were both ministers belonging to the Religious Order of Jehovah’s Witnesses (Orden der Sondervollzeitdiener der Zeugen Jehovas) and who were Tagalog speaking citizens of the Philippines, for the benefit of its Tagalog speaking members in Austria. 7. In order to obtain a residence permit (Aufenthaltsgenehmigung) or a settlement permit (Niederlassungsbewilligung), the couple had to have a work permit or be able to show that they were not subject to the provisions of the Employment of Aliens Act (“the EA Act”). On 16 April 2002 the applicant community therefore applied to the Währinger Gürtel Labour Market Service (Arbeitsmarktservice) in Vienna for a declaratory decision that the pastoral work the couple would exercise was exempt from the provisions of the EA Act. It submitted that, since the entry into force of the Religious Communities Act 1998, section 1(2) of the EA Act had to be understood as referring to all persons doing pastoral work for religious communities and not only as referring to ministers of recognised churches and religious societies. In any event, it submitted that the tasks which would be assigned to G.V. and V.T. would not constitute employment within the terms of the EA Act. 8. On 1 July 2002 the Labour Market Service dismissed the application and, on 21 October 2002, an appeal panel of the Labour Market Service confirmed the decision. Both authorities found that only ministers performing pastoral duties belonging to a recognised religious society were exempt from the provisions of the EA Act, but not members of a registered religious community, which was the status of the applicant community. In addition, the boards held that pastoral work had the typical features of employment within the meaning of the EA Act, as it was exercised within a hierarchical structure, subject to the instructions of a superior and involved economic dependence. 9. On 3 December 2002 the applicant community filed a complaint with the Constitutional Court, in which it argued that the decisions of the administrative authorities had violated its rights under Article 9 read alone and in conjunction with Article 14 of the Convention. 10. On 10 October 2003 the Constitutional Court dismissed the complaint. It found that any employment contracts the applicant community concluded with aliens concerning pastoral work as ministers would be subject to the provisions of the EA Act, because the exemption in section 1(2) of the EA Act only applied to churches or religious societies recognised by law. 11. The Constitutional Court held that even though the pastoral work of ministers clearly fell within the scope of protection of Article 9, which also comprised the conclusion of employment contracts by a religious group with persons engaging in such activities, and even though labour-market regulations, in particular the employment of aliens, might constitute an interference with the rights protected by Article 9, such interference was justified under paragraph 2 of Article 9. The difference between the employment of foreigners as ministers performing pastoral work by a religious society and employment by a registered religious community made by the EA Act was in conformity with the Federal Constitution. Through recognition as a religious society, that religious group acquired a legal status, more closely defined in the relevant Act, which would allow it to participate in the shaping of public life in the State (an der Gestaltung des staatlichen öffentlichen Lebens teilzunehmen). As this status could, and indeed had to, be granted to all churches and religious societies provided the conditions established by law were met, the distinction between recognised religious societies and other communities did not give rise to doubts as to its constitutionality. 12. On 15 December 2004 the Administrative Court dismissed the complaint, which had been transferred to it. The applicant community argued that section 1(1) of the EA Act was discriminatory. However, the Administrative Court found that this matter had been exhaustively examined by the Constitutional Court in its above decision. This decision was served on the applicant community’s lawyer on 20 January 2005. 13. In October 1999 the applicant community received a donation. On 2 May 2001 the Vienna Tax Office for Fees and Transaction Taxes (Finanzamt für Gebühren und Verkehrssteuern) ordered the applicant community to pay inheritance and gift tax in the amount of 14% on the sum received. It found that the applicant community could not rely on section 15(1)(14) of the Inheritance and Gift Tax Act 1955 (“the 1955 Act”), which provided an exemption from tax liability for certain donations to religious institutions, because this tax privilege was reserved to churches and religious societies recognised by law. 14. On 7 May 2001 the applicant community appealed. It argued that, as a result of the entry into force of the Religious Communities Act on 10 January 1998, the exemption from tax liability under section 15(1)(14) of the 1955 Act also extended to registered religious communities such as itself. 15. On 25 January 2005 the Independent Finance Panel (Unabhängiger Finanzsenat) dismissed the appeal. It noted that section 15(1)(14) of the 1955 Act clearly referred to religious societies and there was no doubt that this did not mean a registered religious community. Referring to the caselaw of the Constitutional Court, in particular its decision of 10 October 2003 (see above), it found that the difference in treatment between religious societies and religious communities was in accordance with the Federal Constitution. Further, none of the other exemption clauses under this provision applied to the applicant community. 16. On 3 March 2005 the applicant community filed a complaint with the Constitutional Court, arguing that the impugned decision had violated its right to equal treatment, right to the peaceful enjoyment of its property and right not to be discriminated against on the basis of religion. 17. On 26 September 2005 the Constitutional Court declined to deal with the complaint for a lack of prospects of success, considering that insofar as the applicant community’s complaints concerned matters of constitutional law they had been sufficiently dealt with in its previous caselaw. 18. On 5 December 2005, following a request by the applicant community, it remitted the case to the Administrative Court. On 13 January 2006 the applicant community supplemented its complaint before the Administrative Court. 19. On 27 April 2006 the Administrative Court dismissed the complaint as unfounded. It found that the applicant community was not a religious society and could not, therefore, rely on a privilege reserved to such an institution. Moreover, it was also not a charitable institution (gemeinnützige Körperschaft) within the meaning of the 1955 Act, as charitable goals were only those which consisted of promoting the interests of the general public (nur solche Zwecke sind durch deren Erfüllung die Allgemeinheit gefördert wird). As the applicant community, according to its constitutional documents, essentially addressed its activities to its members alone, it addressed itself to a more restricted group than the general public. 20. Section 1(2) of the Employment of Aliens Act provides, insofar as relevant, as follows: “The provisions of this federal act do not apply to: ... (d) aliens in respect of pastoral work they exercise as part of a church or religious society recognised by law; ...” 21. Section 15(1) of the Inheritance and Gift Tax Act 1955, which was still in force at the relevant time, reads, insofar as relevant, as follows: “[The following] are also exempt from taxation: ... (14) donations between living persons of movable objects or sums of money to - domestic legal persons which pursue exclusively charitable, benevolent or ecclesiastical purposes; - domestic churches or religious societies recognised by law; - political parties.” 22. For a detailed description of the legal situation concerning religious societies and religious communities in Austria, see the case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, §§ 37-55, 31 July 2008.
| 1
|
train
|
001-83975
|
ENG
|
SVN
|
CHAMBER
| 2,007
|
CASE OF ŠRAMEL v. SLOVENIA
| 4
|
Violation of Art. 6-1;Violation of Art. 13
|
Corneliu Bîrsan;David Thór Björgvinsson
|
5. The applicant was born in 1967 and lives in Šmarje pri Jelšah. 6. On 8 January 1996 the applicant was injured in a car accident which occurred when the applicant was at work. The applicant's employer had taken out insurance with the insurance company ZT. 7. On 13 May 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,608,038 Slovenian tolars (approximately 10,870 euros – EUR) for the injuries sustained. Between 1 September 1997 and 27 September 1999 the applicant made six requests that a date be set for a hearing. On 5 January 2000 he lodged preliminary written submissions. During the proceedings the court appointed a medical expert. At the first hearing, held on 29 February 2000, the court decided to deliver a written judgment. The judgment, upholding the applicant's claim in part, was served on the applicant on 13 April 2000. 8. On 21 April 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed. On 22 November 2001, the Celje District Court issued a supplement to the judgment (dopolnilna sodba). On 20 December 2001 the applicant also appealed against the supplement to the judgment. On 8 August 2002 the Celje Higher Court allowed the applicant's and ZT's appeals in part. The court reduced the damages awarded in the first-instance proceedings and remitted the case to the first-instance court for re-examination as regards the costs of the proceedings. The judgment was served on the applicant on 1 October 2002. 9. On 7 October 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). He also requested that a judge should withdraw from the proceedings. On 5 July 2004 the President of the Supreme Court rejected the request. On 1 September 2005 the court dismissed the applicant's appeal on points of law. The judgment was served on the applicant on 17 October 2005. 10. Meanwhile, on 16 September 2002, the first-instance court had issued a decision concerning the costs of the proceedings. The applicant's appeal against that decision was dismissed by the Celje Higher Court on 7 January 2004. 11. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings. 12. Section 25 lays down the following transitional rules in relation to applications already pending before the Court: “(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ... (2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
| 1
|
train
|
001-79036
|
ENG
|
POL
|
CHAMBER
| 2,007
|
CASE OF WARSICKA v. POLAND
| 3
|
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal)
|
Nicolas Bratza
|
4. The applicant, the owner of real property which she had been renting, filed a civil action for damages against the tenant. On 4 September 2000 her action was dismissed by a judgment of the Zielona Góra Regional Court. The applicant appealed against the judgment. On 19 June 2001 her appeal was dismissed by a judgment of the Poznań Court of Appeal. Judge S. G. was the judge rapporteur in the case. 5. The applicant lodged a cassation appeal against the judgment through a panel of the Poznań Court of Appeal. On 22 October 2001 her cassation appeal was rejected by a decision of that panel. In its written grounds for the decision, the panel stated that the cassation appeal did not comply with a procedural requirement set out in Article 393 3 § 1 (3) of the Code of Civil Procedure in that it did not include “arguments showing that its examination [by the Supreme Court] would be justified” within the meaning of this provision (see paragraphs 14-16 below). The mere fact that the cassation appeal contained arguments to show the grounds on which it had been lodged was insufficient for the appeal to be declared admissible. The panel further stated that this shortcoming was serious and as such could not be remedied. Judge S.G. presided over the panel which gave this decision and also acted as the judge rapporteur on the admissibility issue. 6. The applicant lodged an appeal with the Supreme Court against the decision of 22 October 2001, challenging inter alia the composition of the court. She submitted that the fact that the same judge had sat on a panel giving a second-instance judgment on the merits and subsequently on a panel rejecting a cassation appeal against that judgment rendered the proceedings unfair. 7. On 7 March 2002 her appeal was dismissed by a decision of the Supreme Court. The court first noted the case-law of the Supreme Court on the interpretation of Article 393 3 § 1 (3) of the Code. It referred to its numerous judgments to the effect that a shortcoming in a cassation appeal which took the form of a failure to enumerate the circumstances justifying its examination was of a serious and irreparable character, which could not be remedied by requesting the appellant to rectify it. It further noted that this requirement was closely linked to the examination of the grounds on which the Supreme Court could refuse to entertain a cassation appeal, as listed in Article 393 of the Code (see paragraph 18 below), namely if it considered that no significant legal issue arose in the case or where there were no legal issues involved which would give rise to serious doubts or to discrepancies in the case-law. 8. It referred to the applicant’s objection in one sentence only: “The fact that the judge, who took part in the judgment against which the cassation appeal was subsequently lodged, participated in a decision by which this appeal was found inadmissible is of no significance”. 9. Article 45 of the Constitution, insofar as relevant, reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...” 10. Article 48 reads in its relevant part: “§ 1. A judge is ex lege excluded from dealing with the case: (...) 5) in cases where he participated in a contested decision of a lower instance.” 11. The Supreme Court decision of 22 August 1974 (II CZ 160/74) reads in its relevant part: “A judge who participated in a judgment is not excluded from giving subsequent decisions in the course of so-called “inter-instance proceedings”. 12. The Supreme Court decision of 3 October 2001 (V CZ 162/01) states, inter alia, that Article 3933 of the Code of Civil Procedure sets out formal requirements which a cassation appeal has to satisfy. It is for the second-instance court to examine whether these requirements have been met. The provisions of the Code determine when a judge is ex lege excluded from dealing with the case. It does not follow from these provisions that a judge who has given a second-instance judgment is to be excluded from participation in a subsequent examination of whether a cassation appeal complies with the formal requirements provided for by the Code. 13. The Supreme Court reached the same conclusion in its decision of 22 April 2002 (IPZ 21/01). It considered that the examination of the admissibility of the cassation appeal could not be said to have anything in common with the examination of the merits of the case, because the former has a purely formal character. 14. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings. 15. Article 393 1 of the Code as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 16. Article 393 3, as applicable at the material time, specified the requirements of a cassation appeal. It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 17. Article 393 4, as applicable at the material time, read as follows: “A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).” 18. The reasons justifying the examination of a cassation appeal by the Supreme Court can be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part: “1. The Supreme Court may refuse to entertain the cassation appeal, if: i) there is no appearance of any significant legal issue in the case; ii) there is no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts’ case-law; iii) the appeal is manifestly ill-founded. 2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.” 19. Pursuant to Article 39318 of the Code, an appeal to the Supreme Court was available against a decision of the appellate court rejecting a cassation appeal. 20. Under the provisions of the Act on Procedure before Administrative Courts 2002 a cassation appeal is available against judgments of Regional Administrative Courts to the Supreme Administrative Court. As an appeal on points of law, it has the same character as a cassation appeal in civil proceedings. 21. On 23 May 2005 the Supreme Administrative Court, in reply to a legal question put to it by its .President, adopted an explanatory resolution. It observed that serious difficulties had arisen in the judicial practice of the administrative courts as to whether a judge who had given a second-instance judgment had to be excluded from participation in a subsequent examination of the compliance of a cassation appeal with the formal requirements provided for by the Act of 2002. The court referred to the fair hearing standard established by Article 6 of the Convention. It noted that the case-law of the European Court of Human Rights emphasised the importance of judicial impartiality. However, the examination of whether a given court satisfied this requirement should always be carried out with reference to the facts of an individual case and the modalities of a given type of judicial procedure. The court observed that under the applicable laws an appeal on points of law to the Supreme Administrative Court was available against a judgment of a regional administrative court. Hence, it was obvious that the parties had a right to have their administrative case heard by two impartial judicial instances. The need to secure such impartiality served as a ratio legis for the exclusion of a judge from the examination of the same case in two judicial instances. However, the court stressed that the requirement of impartiality was complied with if the same judge was prevented from examining twice the merits of the same case. The court further observed that the examination of the admissibility of a cassation appeal in administrative proceedings could be identified neither with the examination of the merits of such an appeal, nor with the examination of whether the impugned first-instance judgment was well-founded. A distinction had to be made between the examination of the admissibility and the latter two types of examination which essentially related to the substance of the first-instance judgment. It held that there were no grounds on which to consider that a judge involved in the examination of the merits of the case should not be allowed to sit on a panel examining the admissibility of the cassation appeal.
| 0
|
train
|
001-58368
|
ENG
|
FRA
|
CHAMBER
| 1,999
|
CASE OF BAGHLI v. FRANCE
| 1
|
Preliminary objection rejected (six month period);No violation of Art. 8
|
Nicolas Bratza
|
8. The applicant, an Algerian national, was born in 1964 in Algeria and lives at Tlemcen (Algeria). 9. He entered France in 1967 at the age of two. He has lived there ever since, as have all the members of his family. He has seven brothers and sisters, all French nationals. He did the whole of his schooling in France where he obtained a professional diploma (certificat d’aptitude professionnelle) as a fitter in 1982. Between 1982 and 1992 he did various jobs and attended a number of professional training courses. In 1987 he met a French national, Miss L., with whom he had a steady relationship. 10. Between January 1984 and December 1985 the applicant performed his military service in Algeria. 11. In July 1990 gendarmes from the Belley investigation squad were informed of the plight of an 11-year-old girl whose father had just died of Aids and whose mother, Mrs C., was also suffering from the same disease, taking drugs and keeping company with several addicts. After an investigation had been opened on a complaint against a person or persons unknown for drug-related offences, the gendarmerie discovered in the course of their inquiries in the autumn of 1990 a drug-trafficking syndicate in which more than twenty people were implicated to differing degrees. The applicant was arrested and charged in the course of that investigation. He was accused by a number of co-defendants of being a dealer in drugs. It was established in the inquiry that he had been cohabiting with Mrs C. since July. He had been supplying her with hashish and heroin and together they had engaged in illegal trade in heroin. 12. On 10 September 1991 the Belley Criminal Court convicted the applicant of drug trafficking, sentenced him to fifteen months’ imprisonment, twelve of which were suspended, and made an order excluding him from French territory for a period of ten years. 13. The applicant appealed. On 23 January 1992 the Lyons Court of Appeal increased the term of imprisonment to three years, two suspended, and upheld the exclusion order. 14. In its judgment, the Court the Appeal stated, inter alia: “Mohamed Baghli, who became R.C.’s companion in the summer of 1990, acknowledges that he has taken hashish for many years and began taking heroin in June 1990. He admits that between the end of June and the end of July he made two trips a week to Lyons to obtain drugs from one A., ... who supplied him with the drugs, in particular, one gram or half a gram doses of heroin for 1,600 French Francs (FRF) or FRF 800. He shared the drugs with his companion ... but also sold a part ... Ultimately the heroin-trafficking offence of which Baghli stands accused, which the investigating judge’s investigations fully establish, concerned about ten grams of heroin, some being for his own and his companion’s use and some being sold on to finance further purchases after being adulterated in a way that made it particularly hazardous for the buyers’ health ...” 15. The applicant lodged an appeal on points of law, which was dismissed by the Court of Cassation on 6 September 1993. 16. Mrs C. died in October 1992. 17. In December 1992 the applicant began a relationship with Miss I., a French national, whom he had known for several years. 18. After serving his sentence, the applicant was deported to Algeria on 14 May 1994, where he would appear still to be at the date of this judgment. 19. On 11 January 1994, while still in Villefranche-sur-Saône Prison, the applicant applied to the Lyons Court of Appeal for rescission of the exclusion order. He relied on Article 8 of the Convention. 20. In a judgment delivered on 30 June 1994, the Court of Appeal dismissed his application. The applicant lodged an appeal on points of law through his counsel against that decision relying, inter alia, on Article 8 of the Convention. 21. On 19 December 1995 the Court of Cassation dismissed the appeal, holding: “... after noting that Mohamed Baghli had been convicted for his part in a heroin-trafficking syndicate, the Court of Appeal said that while it was true that his family lived in France and most of its members were French nationals, he had not lost all contact with Algeria, having often spent his holidays there and done military service there in 1984 and 1985. The mere fact that he was planning to set up home with a French woman was not decisive as, at the material time, he was living with another woman whom he had involved in his drug trafficking. The Court of Appeal concluded from that that the exclusion order had not disproportionately interfered with the right to family life guaranteed by Article 8 of the Convention ... It added that although Article 14 of that Convention prohibited any discrimination on grounds of national origin, paragraph 3 of Article 2 of Protocol No. 4, an additional protocol, allowed aliens to be denied access to the territory if the measure was necessary in the interests of national security or public safety, for the maintenance of ordre public, and for the prevention of crime; that paragraph applied in the instant case, which concerned trafficking in narcotics, particularly heroin ...” 22. That judgment was not served on the applicant. His representative says that he (the representative) received a copy of the judgment in September 1996. 23. Article L. 630-1, sub-paragraph 1, of the Public Health Code, as worded at the material time, provided: “Without prejudice to the application of Articles 23 et seq. of Ordinance no. 452658 of 2 November 1945, the courts may make an order excluding an alien convicted of an offence under Articles L. 626, L. 627-2, L. 628, L. 628-4 or L. 630 from French territory for between two and five years. They may make an order permanently excluding an alien convicted of an offence under Article L. 627. An exclusion order shall automatically entail deportation of the convicted person at the end of his sentence ...” 24. Former Article L. 627 of the Public Health Code provided: “Anyone who shall have contravened the provisions of the public-administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to between two and ten years’ imprisonment and a fine of between FRF 5,000 and FRF 50,000,000, or one only of those penalties. The sentence for offences of importing, producing, manufacturing or unlawfully exporting the said substances or plants shall be between ten and twenty years’ imprisonment ... Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the substantive offence. A like rule shall apply to criminal association or conspiracy to commit such offences ... The following persons also shall be liable to imprisonment of between two and ten years and a fine of between FRF 5,000 and FRF 50,000,000, or to one only of those penalties: (1) Anyone who shall have facilitated the use by another of the said substances or plants by procuring premises or by any other means, and whether or not for consideration ... Where the person whose use of the said substances has been facilitated is a minor under 21 ... the term of imprisonment shall be between five and ten years ...” 25. Article 55-1 of the Criminal Code provides: “... anyone who shall have incurred a disability ... as an automatic consequence of a criminal conviction or on whom such disability ... has been imposed by the convicting court in its judgment ... may request the court which convicted him ... to rescind the disability ..., in whole or in part, or to vary its duration.” 26. Mr Baghli applied to the Commission on 26 December 1996. He alleged that the exclusion order imposed on him violated his right to respect for his private and family life guaranteed by Article 8 of the Convention. 27. On 4 March 1998 the Commission declared the application (no. 34374/97) admissible. In its report of 9 September 1998 (former Article 31 of the Convention), it expressed the opinion (by eleven votes to three) that there had been a violation of Article 8.
| 0
|
train
|
001-79612
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,007
|
KILIC v. DENMARK
| 4
|
Inadmissible
|
Snejana Botoucharova
|
The applicant, Mr Ferhat Kilic, is a Turkish national who lives in Copenhagen. He is represented before the Court by Mr Ulrik Rasmussen, a lawyer practising in Copenhagen. The applicant was born on 2 May 1987 in Turkey. In order to join his father, who had lived in Denmark since 1986, on 22 September 1990 the applicant entered Denmark together with his mother. At the relevant time the applicant was three years old. He spent most of his childhood and youth in Denmark. It appears that twice during the years from 1999 to 2001 he spent eight months in Turkey. He left school after seven years’ schooling and has never had any affiliation to the labour market. His parents, two siblings, his paternal grandmother and two uncles also all live in Denmark. Every second year, the applicant has been on holiday for a longer period in Turkey, where his mother’s family and two paternal aunts live. The applicant’s family in Denmark owns a house in Turkey with several apartments, which are used by the family upon their visits to their country of origin. He speaks Turkish and Danish. By a City Court judgment of 25 March 2003 the applicant was convicted of two independent assaults. As to the first assault, jointly with another perpetrator, the applicant had overturned a cyclist, beaten and kicked him, including on the head, resulting in the victim being badly injured, i.e., among other things, he broke his knee cap. As to the second assault, the applicant had been caught in the act of burglary by the house owner in question, upon which the applicant beat and kicked the latter, including on the head. The applicant was sentenced to forty days’ imprisonment suspended on probation. The judgment was appealed against to the High Court of Eastern Denmark (Østre Landsret). By a City Court judgment of 6 May 2003 the applicant was again convicted, inter alia, of two independent assaults of respectively a headmaster and a police officer. He was sentenced to spend four months at a detention centre for children and young persons and thereafter twelve months at an institution for youth persons. The applicant appealed against the judgment to the High Court of Eastern Denmark. On 6 August 2003 the High Court confirmed both City Court judgments. It decided, however, to fix a joint sentence, thus maintaining the sentence set out in the City Court’s judgment of 6 May 2003. On 14 August 2003 the applicant and his cousin were arrested and charged, inter alia, with attempted robbery, aggravated assault and manslaughter. They were detained on remand the following day. On 9 November 2004 they were convicted by the High Court of Eastern Denmark sitting with a jury. It found it established that on 9 August 2003, when the applicant was sixteen years old and his cousin seventeen, jointly they had threatened a young man, an Italian tourist, with a knife in order to steal his money. Although the young man was stabbed by the applicant’s cousin, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant’s cousin stabbed him several times, the injuries inflicted resulting in the victim’s death. By the same judgment, the applicant was also convicted of: burglary committed on 22 January 2003 with regard to goods equal to an amount of approximately 6,400 euros (EUR); and four counts of escape from detention centres for children and young persons, namely in the periods from 8 July 2003 until 10 July 2003, when he was arrested by the police; from 28 July 2003 until 6 August 2003, when he was again arrested by the police; from 6 August 2003 until 10 August 2003, when he was arrested by the police; and from the afternoon on 13 August 2003 until later on the same day, when he was arrested by the police. According to a psychiatric report of 8 December 2004, the applicant was not found to be mentally sick but he did have character flaws such as abdication of responsibility. Since his childhood he had behavioural problems and since puberty he had abused hashish. In its judgment, the High Court of Eastern Denmark sentenced the applicant to eight years’ imprisonment. In addition, he was expelled from Denmark for an indefinite time to be implemented after the sentence had been served. The applicant’s cousin, who was also convicted of additional offences to attempted robbery, aggravated assault and manslaughter, was sentenced to ten years’ imprisonment and expulsion from Denmark for an indefinite time. Upon appeal, the Supreme Court (Højesteret) confirmed the sentences on 15 March 2005. With regard to the order to expel the applicant and his cousin, the majority of six judges held as follows: [The applicant’s cousin] was born in Denmark, whereas [the applicant] arrived as a threeyearold. They have spent their youth and had their schooling in this country where also their parents and siblings live. Thus, they have a strong connection with the Danish society and to people living here. At the same time, however, they have a [significant] connection with Turkey and Turkish culture. They speak Turkish and approximately every second year they have visited Turkey where they have a big family. Both have been previously convicted, and have now been sentenced to longer prison terms, inter alia, for manslaughter, attempted robbery and aggravated assault. Having taken all considerations into account, in our view neither the elements mentioned in section 26, subsection 1 of the Aliens Act (Udlændingeloven) nor Article 8 of the Convention speak decisively against [their] expulsion. Accordingly, we vote [for their expulsion]. The minority of one judge held as follows: In my view, when taking all the elements mentioned in section 26, subsection 1 of the Aliens Act into account, the connection which the applicant and [his cousin] have with Turkey and Turkish culture, is not of such an extent and character that it has decisive weight when compared to their strong connection to the Danish society and people living here. In my opinion, the latter speaks significantly against expelling the applicant and his cousin from Denmark. Accordingly, notwithstanding the serious crimes committed, I vote [against their expulsion]. The relevant provision of the Aliens Act (Udlændingeloven) applicable at the time read as follows: “An alien who has lawfully stayed in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if: (i) the alien is sentenced to minimum 4 years imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration. ... (vi) the alien is sentenced, pursuant to ... Articles ...[manslaughter, aggravated assault , robbery, etc] of the Penal Code to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.” 1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: (i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years; (ii) the duration of the alien’s stay in Denmark; (iii) the alien’s age, health, and other personal circumstances; (iv) the alien’s ties with persons living in Denmark; (v) the consequences of the expulsion for the alien’s close relatives living in Denmark; (vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. 2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.
| 0
|
train
|
001-101213
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,010
|
ZLATEV v. BULGARIA
| 4
|
Inadmissible
|
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
|
The applicant, Mr Zlati Svetoslavov Zlatev, is a Bulgarian national who was born in 1946 and lives in Aksakovo. He was represented before the Court by Mr B. Tsvetkov, a lawyer practising in Varna. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date a preliminary investigation for robbery was opened against the applicant. He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on 23 and 24 October 1991. On an unspecified date the preliminary investigation was suspended. The preliminary investigation was resumed on 28 March 1996 and then again suspended on 30 April 1996. The preliminary investigation against the applicant was again resumed on 23 February 1999. On an unspecified date in 1999 it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator. The applicant was never formally charged with an offence. In the course of the search of the applicant's apartment on 23 and 24 October 1991 the investigating authorities seized various items, such as a helm, an electric sander, a car radio, a stereo, thirty-two turbot fishing nets, three goby fishing nets, five bluefish and shad fishing nets, two fishing hooks, a car battery, six life jackets, a leather bag, nine signal rockets and a reversible boat coupling. According to the applicant the items were either new or of high quality. The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant. On the instructions of the Varna district public prosecutor's office of an unspecified date part of the seized items were returned to four individuals who had reported them stolen and from whom they had apparently been stolen. The items were returned to their owners only after the authorities had verified the owners' claims on the basis of ownership documents and identification checks. The said transfers were effected on 27 November 1991, 8 and 16 January 1992 and 12 April 1996. On 17 March 1999 the Varna regional public prosecutor's office invited the applicant to receive the remainder of the items in their possession. He refused to accept them as he claimed that most of the items were either missing, had been replaced with similar such of lower quality or had become unusable for their intended purpose. On 4 June 1999 the Varna Regional Investigation Service invited the applicant to receive the helm. It is unclear whether he did so. On an unspecified date in 1999 the applicant initiated an action for damages under section 2 (2) of the State Responsibility for Damage Caused to Citizens Act of 1988 (renamed on 12 July 2006 to the State and Municipalities Responsibility for Damage Act: “the SRDA”). The applicant sought compensation in the amount of 22,453 Bulgarian levs (approximately 11,514 euros) for the missing, lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated. The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment, the preliminary investigation against him should also be considered to have been unlawful and subject to compensation, including, in particular, the damage resulting from the conducted search and seizure of his possessions. In a judgment of 17 August 2001 the Varna Regional Court found that the applicant had no right of action under the SRDA against the authorities because he had never been indicted for an offence and, therefore, no liability arose for the investigation and the prosecution authorities under section 2 of the Act. The applicant appealed against this judgment on 21 September 2001 arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him, such as the search and seizure of his possessions. In a judgment of 19 February 2002 the Varna Court of Appeal found against the applicant and upheld the lower court's findings that he had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. On 19 March 2002 the applicant filed a cassation appeal against the judgment of the Varna Court of Appeal. He argued that the State's liability under the Act arose from the fact that there had been a preliminary investigation against him for robbery, subsequently discontinued, which amounted to having been subjected to unlawful criminal proceedings. In a final judgment of 30 July 2003 the Supreme Court of Cassation found against the applicant and upheld the lower courts' judgments. It also found that the applicant had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. In so far as the applicant had never been charged, but had only been questioned as a suspect and then as a witness, the court found that no liability arose for the authorities in question. Moreover, the Supreme Court of Cassation noted that the investigation and the prosecution authorities could also not be held liable under the Act for any of their actions or inactions related to the safekeeping of the seized items. The relevant domestic law and practice have been summarised in the judgments in the cases of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-45, 10 January 2008) and Atanasov and Ovcharov v. Bulgaria (no. 61596/00, §§ 30-42, 17 January 2008).
| 0
|
train
|
001-138479
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,013
|
KOCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4
|
Inadmissible
|
Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
|
1. The applicants, Ms Olga Koceska (“the first applicant”), Mr Dimko Koceski (“the second applicant”) and Mr Blagojče Koceski (“the third applicant”), are Macedonian nationals, who were born in 1957, 1954 and 1995 respectively and live in Prilep. The first and second applicants are the parents of the third applicant. 2s, may be summarised as follows. 3. As established in the course of the proceedings described below, companies M.T. and T.M.K. (“the companies”) started to construct a local telephone network. Heavy concrete pillars were unloaded on a children’s playground, which was near the construction site. At 5 p.m. on 23 October 2000 B.K., the fourteen-year old daughter of the first and second applicants, slipped and fell to the ground while climbing on the pillars. One pillar became dislodged and fell on top of her. As a result, she suffered serious head injuries and died on the spot. The third applicant, who was then four years old , was present at the time and witnessed the accident. 4. On 27 September 2002 the Prilep Public Prosecutor’s office lodged an indictment of its own motion against Mr M.T. and Mr Z.K., employees in the companies responsible for the construction, accusing them of criminal offences directed against public safety. The first and second applicants took part in the proceedings as victims (оштетени). 5. On 27 April 2005 the Prilep Court of First Instance found the accused guilty and sentenced them each to two years’ imprisonment. The court held that, contrary to the applicable rules, they had failed to secure the construction site and the concrete pillars in order to avoid any risk of fatal consequences. It further advised the applicants that they could claim compensation by means of a separate civil action before the civil courts. 6. On 15 March 2006 the Bitola Court of Appeal accepted appeals by the accused and remitted the case to the trial court for a fresh examination. It ordered the trial court to reconsider the available evidence in order to establish whether the accused had been responsible for placing and securing the concrete pillars. It further rejected as inadmissible an appeal by the first and second applicants in which they complained about the penalty imposed. 7. On 8 November 2006 the trial court acquitted Mr M.T., finding that he had not been responsible for the storage and unloading of the pillars. On the other hand, it convicted Mr Z.K. and sentenced him to one year’s imprisonment since he had authorised for the pillars to be unloaded and left unsecured in the vicinity of the children’s playground, despite the fact that he ought to have known that they were dangerous objects. The first and second applicants were again instructed that they could seek compensation before the civil courts. On 16 February 2007 the trial court rejected an appeal by the first and second applicants, finding that they had participated in the proceedings as victims and that they had been entitled, under the law, to challenge the judgment only in respect of the trial costs. Their appeal, by which they had challenged the merits of the judgment, had accordingly been inadmissible. 8. On 28 March 2007 the Bitola Court of Appeal dismissed appeals by the public prosecutor and the first and second applicants (against the trial court’s decision of 16 February 2007) and allowed an appeal by Mr Z.K. As to the latter, the court dropped the charges on the ground that the prosecution of the offence had become timebarred. 9. In June 2009 the Ministry of Justice informed the first and second applicants that on 20 March 2009 the State Judicial Council (Судски Совет на Република Македонија) had dismissed the trial judge from office. 10. In 2003 the applicants lodged civil action for damages with the Prilep Court of First Instance claiming compensation from the two companies concerned; company B. that was also involved in the construction; the municipality of Prilep and the State (on behalf of the Prilep Public Prosecutor’s office and the first-instance court) for the pecuniary and non-pecuniary loss sustained as a result of the death of B.K. According to the applicants, no action had been taken in respect of their claim until December 2007, when their case was transferred to the Bitola Court of First Instance for consideration. 11. On 12 September 2008 the Bitola Court of First Instance partly ruled in the applicants’ favour. Referring to the findings of the criminal courts, the court ruled that the companies were at fault for having stored the concrete pillars unsecured on the children’s playground. It thus awarded the applicants 61,000 Macedonian denars (MKD) in respect of pecuniary damage for funeral costs and MKD 1,900,000 in respect of non-pecuniary damage on account of the mental distress caused. The court fixed the interest at the statutory rate to be calculated from the date of B.K.’s funeral (in respect of the pecuniary damage) and from the date of the judgment (concerning the non-pecuniary damage). It dismissed the applicants’ claim against the municipality of Prilep and the State, finding no evidence that any responsibility could be attributed to them for the damage sustained. Lastly, it awarded the applicants MKD 157,400 for the trial costs incurred in the compensation proceedings. It dismissed their claim for reimbursement of the trial costs incurred in the criminal proceedings against Mr M.T. and Mr Z.K., arguing that they could only have been claimed in the course of those proceedings. On appeal by the applicants, in 2009 the Bitola Court of Appeal quashed that judgment and ordered a retrial. 12. On 23 April 2010 the first-instance court again partly allowed the applicants’ claim and awarded them the same amount in respect of pecuniary damage. It also increased the award in respect of non-pecuniary damage to MKD 2,500,000 and it awarded them MKD 376,630 for the trial costs incurred in those proceedings. It dismissed the claim against the municipality for lack of evidence and it noted that the applicants had withdrawn the claim against the State. 13. On 24 January 2011 the Bitola Court of Appeal overturned that judgment and increased the amount of compensation awarded in respect of non-pecuniary damage by an additional MKD 200,000 It also amended the decision regarding the calculation of the interest. The rest of the first-instance court’s judgment remained the same. Consequently, the final award was set at MKD 61,000 (approximately EUR 1,000) in respect of pecuniary damage; MKD 2,700,000 (approximately EUR 44,000) in respect of non-pecuniary damage and MKD 376,630 (approximately EUR 6,120) in respect of trial costs and expenses. 14. Section 11(3) of the Civil Proceedings Act provides that civil courts are bound by decisions given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal responsibility. 15. Section 200 enumerates grounds under which civil proceedings are suspended ipso jure. Under section 201(2), the civil court may suspend proceedings if the decision depends on whether a criminal offence prosecutable ab initio was committed, who the perpetrator was and if he or she was guilty. 16. Pursuant to Article 107 § 1 (5) of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed. 17. Under Article 108 § 6 of the Criminal Code, a prosecution will in any event be barred by prescription after a period equal to double the length of the statutory limitation period for prosecution of the offence has elapsed.
| 0
|
train
|
001-85621
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
MC GILL v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
|
The applicant, Mr Peter McGill, is a British national who was born in 1947 and lives in Corby. 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 26 November 1995. On 28 February 2002 the applicant applied for widows’ benefits. On 19 April 2002 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 13 May 2002 the applicant appealed but the appeal was eventually stayed. 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 benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0
|
train
|
001-101803
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF AMUYEVA AND OTHERS v. RUSSIA
| 4
|
Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 13
|
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
4. The applicants are: (1) Mrs Imani Amuyeva, born in 1972; (2) Mr Eti Dzhabrailov, born in 1932; (3) Mr Uvays Israilov, born in 1918; and (4) Mrs Liza Makhmutmirzayeva, born in 1977. 5. On 6 July 2008 the third applicant died. His son Mr Abdul-Rakhim Israilov, born in 1959, provided a letter of authority expressing his intention to continue the application in his name. For the sake of convenience, he will hereinafter be referred to as “the fifth applicant”. 6. The applicants live in Gekhi-Chu, Urus-Martan district, Chechnya. 7. The first, third, fourth and fifth applicants belong to the same extended family. The third applicant was the father of Adam (also spelled Adlan) Israilov, born in 1965; Turpal Israilov, born in 1972; and Aslambek Israilov, born in 1971. His son, the fifth applicant, is the brother of Adam, Turpal and Aslambek Israilov. The first applicant is Adam Israilov’s wife. The fourth applicant is Aslambek Israilov’s wife. 8. The second applicant is the father of Aslanbek (also spelled Alik) Dzhabrailov, born in 1968. 9. In the autumn of 1999 military operations by the Russian military and security forces started in Chechnya. According to the applicants, the village of Gekhi-Chu in the Urus-Martan district came under full control of the Russian military forces in December 1999. A military unit was stationed at the outskirts of the village, the state authorities were functioning and there were no clashes in the area. For these reasons the residents had considered that their lives were no longer endangered by the hostilities. 10. In the evening of 6 February 2000 the village came under fire by automatic weapons from the position of the Russian forces about fifty metres away from the edge of the village. The residents were aware that a large group of Chechen fighters had entered the village from the direction of Katyr-Yurt and many had taken shelter in the basements of their houses. 11. In the morning on 7 February 2000 two military helicopters fired missiles upon the village. The village then came under shelling by artillery and from planes. 12. The first, third and fourth applicants live at 72 Shkolnaya Street in Gekhi-Chu in a large residential compound comprised of several houses. One house belonged to the third applicant and another one belonged to his elder son, the fifth applicant. A large number of neighbours and relatives took shelter in their compound. According to them, there were about twenty-five people in the basement of only one of the houses. 13. The second applicant lives at 76 Shkolnaya Street. On 6 and 7 February 2000 he, together with his son Aslanbek Dzhabrailov, was also taking shelter in the basement of the first applicant’s house. 14. At about 2 p.m. on 7 February 2000 the shelling stopped. One of the men looked into the courtyard and saw a group of military servicemen. The soldiers ordered everyone to come out and lined up the men, women and children in the courtyard. 15. After the residents came out, one serviceman threw a hand-grenade into the basement of the third applicant’s house. The explosion damaged the house. 16. The servicemen, who behaved in an aggressive manner, took aside four young men: the third applicant’s three sons Aslambek, Adam and Turpal Israilov, and Aslanbek Dzhabrailov, the second applicant’s son. The third applicant approached the group because he feared for his sons. The military servicemen told him that they would check whether the young men had participated in illegal armed groups. 17. The servicemen then ordered some of the residents to descend into the basement of a house situated further down in the Shkolnaya Street. Others remained in the courtyard. 18. The fifth applicant also remained in the courtyard. He and other witnesses saw that the servicemen had checked the passports of the four young men, examined their torsos in order to see if they had signs of wearing weapons and then allowed them to get dressed. 19. At that time, there was an exchange of gunfire from the neighbouring house at 74 Shkolnaya Street. A tank and an armoured personnel carrier drove up to that house. The residents later learned that a fighter had taken shelter in the basement of that house and had shot at a Russian soldier and killed him. He was shot dead in response. 20. The military servicemen separated the men, including the fifth applicant, from the remaining group of residents and led them away towards Centralnaya Street. The four young men remained in the courtyard of the first applicant’s house, under the guard of military servicemen. Before leaving, the fifth applicant saw his three brothers and Aslanbek Dzhabrailov being escorted into the courtyard at 74 Shkolnaya Street where the exchange of gunfire had taken place. In the meantime, the second and third applicants joined the group of women and children who remained in the third applicant’s courtyard. The military assured them that their sons would be released after a check. 21. Ten or fifteen minutes later the people in the courtyard, including the first, third and fourth applicants, heard shots fired in the courtyard of the house at 74 Shkolnaya Street. Some five minutes later the military ordered the residents to go into the fifth applicant’s house and wait there. 22. In the meantime, the group of men who had been taken to Centralnaya Street had been examined, one by one, by the military servicemen. The servicemen had led away two brothers from the T. family and another young man, who were later found shot. 23. The fifth applicant was released after the check and returned to his house. The military ordered him to join the other residents inside the house. 24. Sometime later the soldiers left the village. The second applicant went home but did not find his son, Aslanbek Dzhabrailov, there. 25. The fifth applicant went into the courtyard at 74 Shkolnaya Street. There he saw the four bodies of the young men who had been led away by the soldiers. Under the fence-roof (a roof covering part of the courtyard) there were the bodies of Adam Israilov and Aslanbek Dzhabrailov, and further back in the courtyard, face down, Aslambek and Turpal Israilov. The bodies had gunshot wounds. The bodies of Aslanbek Dzhabrailov and Aslambek Israilov also had knife wounds to the back, in the heart area. 26. The fifth body found in the same courtyard was probably that of the fighter who had been killed there earlier. 27. The applicants submitted written statements about the events produced by the first, second, fourth and fifth applicants, as well as by two neighbours, I. A. and Ch. D. 28. The Government did not challenge the facts as presented by the applicants. 29. Despite a specific request by the Court, the Government did not disclose any documents from criminal case no. 24037 which had been opened in relation to the matter. 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, because the file contained personal data concerning the participants in the criminal proceedings. They outlined a number of investigative measures taken so far. The parties’ submissions in this respect could be summarised as follows. 30. The applicants stated that on 8 February 2000 a group of officials from the Urus-Martan district prosecutor’s office (“the district prosecutor’s office”) and district temporary Department of the Interior (VOVD) arrived in Gekhi-Chu. They questioned several witnesses, examined the site of the shooting and drew up a plan. It also appears that they photographed the bodies. 31. On the following day, 9 February 2000, the four bodies were buried in the local cemetery. 32. One week later an investigator from the district prosecutor’s office informed the applicants during a meeting in Gekhi-Chu that a criminal investigation had been opened by that office under Article 105 of the Penal Code (murder). Despite this information, it appears that the criminal investigation was opened only in July 2000 (see below). 33. On 26 February 2000 the Urus-Martan district civil registration office issued death certificates for the four men. The date of death was recorded as 7 February 2000 for all, but the cause of death was noted only for Aslanbek Dzhabrailov - numerous gunshot wounds to the head. 34. On 14 July 2000 an investigator of the Chechnya Prosecutor’s Office opened a criminal investigation under Article 105 of the Criminal Code into the deaths of the three Israilov brothers, Aslanbek Dzhabrailov and the unidentified member of the illegal armed group (“the IAG”). According to the Government, this action was prompted by a letter of the deputy Minister of Foreign Affairs, and prior to that date the applicants had not submitted any complaints to the authorities. 35. On 15 July 2000 the file was forwarded for investigation to the district prosecutor’s office and assigned number 24037. The decision contained the following passage: “On 7 February 2000 in Gekhi-Chu... servicemen of the federal forces carried out a special operation with the aim of identifying members of illegal armed groups. At that time [the following] residents of the village, brothers Adlan, Aslambek and Turpal Israilov, Alik Dzhabrailov, and an unidentified member of the IAG stayed in a dugout shelter in the Israilovs’ house. In the course of the special operation the member of the IAG committed the murder of a military serviceman, after which the above-mentioned member of the IAG, Adlan, Aslambek and Turpal Israilov and Alik Dzhabrailov were killed”. 36. The Government submitted that on an unidentified date the investigation had established the number of the military unit which had taken part in the operation in Gekhi-Chu and had obtained information about two servicemen of that unit who had been killed on 7 February 2000. 37. On 6 October 2000 the second applicant was granted victim status in the criminal investigation concerning the murder of his son. On the same day the fifth applicant was granted victim status. According to the Government, both men had been questioned on the same day. They had confirmed the circumstances of their relatives’ deaths, as summarised above. 38. The Government further submitted that on 10 October 2000 the investigator had examined the residential compound of the Israilov family and Z.D.’s neighbouring compound where the bodies had been found. Nothing of relevance to the investigation had been found. 39. The Government submitted that on 10 October 2000 another Israilov brother and Aslanbek Dzhabrailov’s mother had been questioned and had given similar testimonies. The investigator had also collected the clothes which the murdered men had been wearing on 7 February 2000 from the family. It appears from the submitted documents that the jackets were returned to the applicants about one month later but it is unclear if any reports or other steps were taken at that time. 40. On 4 December 2000 the investigation was adjourned due to its failure to identify the culprits. The applicants submit that they had only been informed of this decision in November 2005 when they applied to the district prosecutor’s office for information while collecting documents required in order to obtain compensation for the deaths of their relatives. 41. On 9 October 2001 the second applicant asked the district prosecutor’s office to inform him as to whether a criminal investigation into the murder of his son and the three Israilov brothers by the servicemen had been pending and, if so, who had been in charge of the investigation. 42. On 15 October 2001 the second applicant lodged a request with the district prosecutor’s office that he be granted the status of a civil claimant in the criminal proceedings related to the killing of his son by the military servicemen. It does not appear that any answer has been given to the two aforementioned letters. 43. On 18 November 2005, having learnt of the decision to suspend the investigation, the second applicant wrote to the district prosecutor’s office. He described in detail the events of 7 February 2000 and asked that the investigation be resumed. In particular, he requested that the serviceman who had been killed on that day be identified and the number of the military unit which had been involved in the operation be disclosed, in order to identify and question the servicemen who had killed the four men and to question the other witnesses of the crime. He also asked the district prosecutor’s office to transfer the investigation to the military prosecutor’s office. 44. Per the Government’s observations, the investigation had been resumed at some point after that. On 28 November 2005 the investigator had again questioned the fifth applicant. On the same day the investigator had collected a statement from the head of the village administration, who had confirmed that the four men had been killed on 7 February 2000 during a security operation. 45. According to the Government, between 30 November and 13 December 2005 the investigator had questioned five relatives of the dead men, including the second and fourth applicant. Their submissions had corroborated the statements previously obtained. 46. On 14 February 2006 the first and fourth applicants wrote to the district prosecutor’s office and asked to be granted victim status in the proceedings concerning the murder of their husbands. 47. On 20 February 2006 the first and fourth applicants were granted the status of victims. The Government also submitted that on the same day the first applicant had been questioned. It appears that on 16 March 2006 the investigation was adjourned. 48. Per the Government’s observations, the next round of investigation had started in September 2006. On 8 September 2006 the investigator had requested that the commander of the military unit submit a copy of the internal inquiry into the deaths of their two servicemen in Gekhi-Chu on 7 February 2000, as well as copies of forensic reports. According to the Government, this request had been complied with. However, they did not disclose the content or the conclusions of the relevant documents. 49. On 20 September 2006 the investigation questioned a further five witnesses among local residents, including the second and fifth applicants. 50. On 21 September 2006 the investigator again collected the jackets of the murdered men from the fifth applicant. On 22 September 2006 these items were inspected and attached as pieces of evidence to the criminal investigation file. On 24 September 2006 the investigation was again adjourned. 51. A new round of investigation was opened on 1 February 2007. Per the Government’s submissions, between 25 February and 10 June 2007 the investigation had collected statements from twelve relatives and neighbours of the dead men, including the applicants. The first applicant had given her consent to the exhumation of her husband’s body. 52. On 31 March 2007 the investigator refused to allow the second and fourth applicants to make copies of all the witness statements collected by the investigation. They were allowed to make copies of the decisions to adjourn proceedings. 53. On 20 June 2007 the first and fourth applicants again requested that the district prosecutor’s office identify and question the servicemen and commanders of the military units which had taken part in the special operation. 54. According to the Government, the graves of the Israilov brothers and of Aslanbek Dzhabrailov had been inspected on 6 July 2007. 55. The Government further submitted that the progress of the investigation had been supervised by the Investigative Committee of the General Prosecutor’s Office. According to the Government, the applicants had been duly informed of all decisions taken during the investigation. 56. On 17 May 2006 the first and the fourth applicants complained to the district prosecutor’s office of its failure to effectively investigate the murder of their husbands. They also asked to be granted access to the case file. 57. On 6 July 2006 the first and fourth applicants applied to the UrusMartan District Court (“the district court”), complaining that the district prosecutor’s office had failed to investigate the murder of Adam, Turpal and Aslambek Israilov and Aslanbek Dzhabrailov effectively and had failed to provide a response to their previous complaints. They again asked to be granted access to the case file. 58. On 26 July 2006 the district court partially allowed the complaint against the district prosecutor’s office based on the latter’s failure to take effective steps to investigate the applicants’ relatives’ murder. The district court ordered the district prosecutor’s office to resume the investigation. The district court noted that the investigators had failed to identify the military and security units responsible for the operation, had failed to question the commanders of and participants in the operation and to study the documents related to its execution and results, and had failed to question the commanders of the district military and security authorities about the operation. The court granted the applicants access to the case file, stating that the documents in the file were accessible unless they contained secret information and noted that access to the file was essential in order to realise the applicant’s right to appeal. As to copying of documents from the case file, the court noted that this right was accorded to victims only upon completion of the investigation, and not when the proceedings were adjourned. On 23 August 2006 the Chechnya Supreme Court upheld the district court’s decision. 59. On 19 December 2006 the first and fourth applicants seized the district court with a similar complaint. They noted that the investigation was again adjourned without the necessary steps having been taken. On 2 February 2007 the deputy district prosecutor announced in court that the investigation had been reopened by the district prosecutor’s office on 19 December 2006 in order that it be completed. In such circumstances, the district court found that the applicants’ complaint had been resolved and dismissed it. 60. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
| 1
|
train
|
001-78435
|
ENG
|
POL
|
CHAMBER
| 2,006
|
CASE OF DOMBEK v. POLAND
| 4
|
Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
4. The applicant was born in 1965 and lives in Gdańsk. 5. On 9 July 1996 the applicant was arrested and detained on remand. On 12 August 1996 the Kędzierzyn-Koźle District Court (Sąd Rejonowy) released the applicant. 6. On 20 October 1997 the applicant was again arrested by the police in connection with the same criminal investigation. On 21 October 1997 the Częstochowa District Court decided to detain him on remand in view of the reasonable suspicion that he had committed several offences acting in an organised group of criminals. 7. The applicant’s appeal against this decision was dismissed by the Częstochowa Regional Court (Sąd Wojewódzki) on 6 November 1997. The appeal lodged by his lawyer was dismissed on 20 November 1997. 8. On 8 December 1997 the Częstochowa Regional Court prolonged the applicant’s pretrial detention reiterating the grounds originally given for his detention and adding that the measure was necessary to secure the proper conduct of the investigation. 9. On 4 March 1998 the Katowice Court of Appeal (Sąd Apelacyjny) further prolonged his detention on remand. That decision was upheld by the Supreme Court (Sąd Najwyższy) on 24 April 1998. 10. Subsequently, the applicant’s detention was prolonged by the Katowice Court of Appeal on 8 July 1998. The court considered that the severity of the anticipated penalty and the risk of collusion justified keeping him in detention. 11. On 11 September 1998 the Supreme Court allowed an application made by the Prosecutor General under Article 263 of the 1997 Code of Criminal Procedure (“1997 Code”) and further prolonged the applicant’s detention on remand. The Supreme Court considered that the reasonable suspicion of his having committed the offences in question and the risk of collusion justified keeping the applicant in detention to secure the proper conduct of the proceedings. The court also considered that the investigation could not be terminated earlier due to circumstances for which the authorities could not be held responsible, such as the complexity of the case and the seriousness of the offences. 12. On 31 December 1998 the applicant and 14 coaccused were indicted before the Bydgoszcz Regional Court (Sąd Okręgowy). 13. On 11 January 1999 the Częstochowa Regional Court prolonged the applicant’s detention until 30 June 1999 reiterating the grounds previously given for the applicant’s detention. 14. On 23 June 1999 the Bygodszcz Regional Court decided to prolong until 30 September 1999 the applicant’s detention on remand. It considered, for the same reasons as previously given, that keeping the applicant in detention was the only means to secure the proper conduct of the proceedings. The applicant appealed. 15. The applicant’s trial started on 24 August 1999 and continued for three days. It appears that the hearing was subsequently adjourned. 16. On 27 August 1999 the Bygdoszcz Regional Court examined the applicant’s appeal against its decision of 23 June 1999 and partly allowed it. The court considered that the pre-trial detention of the applicant should be prolonged only until 17 September 1999. It established that in assessing the length of the applicant’s detention with respect to the present case, and for the purpose of the time-limits provided for by Article 263 of the 1997 Code, the period between 9 July and 12 August 1996 should have been added. Accordingly, the Regional Court applied to the Supreme Court asking for the applicant’s detention to be prolonged beyond the term of two years provided for in Article 263 § 3 of the 1997 Code. 17. On 16 September 1999 the Bydgoszcz Detention Centre asked the Supreme Court whether any decision had been given in the applicant’s case. On the same date the President of Chamber III of the Supreme Court informed the Detention Centre by fax that a session on prolongation of the applicant’s detention had been scheduled for 1 October 1999. The President further noted that on the basis of the transitional provisions in the 1997 Code, the applicant’s detention should be ipso jure prolonged until the date of the Supreme Court’s session. 18. On 22 September 1999 the applicant’s lawyer submitted pleadings to the Supreme Court in which he argued that the applicant had been illegally detained as the detention order given on 27 August 1999 had expired on 17 September 1999 and therefore he should have been released. In particular, he maintained that the transitional provisions were not applicable in the applicant’s case and that the 1997 Code did not contain a provision which would allow detention on the basis of a fax sent by the Supreme Court. 19. On 1 October 1999 the Supreme Court held its session and prolonged the applicant’s detention until 27 February 2000 relying on the strong suspicion against the applicant, the complexity of the case and the need to continue the process of gathering the evidence. 20. On 10 February and 24 May 2000 the Supreme Court further prolonged the applicant’s detention reiterating the grounds previously given. In the first of those decisions the Supreme Court added: “...There is no evidence that could prove [the applicant’s] assertion that his wife and children ‘would soon have nothing to eat’. Moreover, it should be noted that there is a particular reason why the pre-trial detention of [the applicant] should not be lifted. From the information obtained by the Presiding Judge it appears that [the applicant] might obstruct the proceedings.” 21. Subsequently, the Bydgoszcz Regional Court made several applications to the Court of Appeal asking that the applicant’s detention be prolonged as, following an amendment to the 1997 Code, the Supreme Court was no longer competent to prolong the detention beyond the statutory time-limit of 2 years, as laid down in Article 263 § 3 of the Code. 22. On 27 September 2000 the Gdansk Court of Appeal granted the application and prolonged the applicant’s detention on remand until 30 December 2000. The court relied in particular on the complexity of the case and the conduct of the accused who had contributed to the prolongation of the proceedings. The court found as follows: “Of course, the applicant’s detention for over three years in this case requires particular attention to be given to the process of gathering evidence, above all, to examine without further delay the defence motions concerning evidence. However, in the light of the proceedings as a whole, the conduct of the Regional Courts should be assessed positively”. 23. On 21 December 2000 as well as on 25 April and 20 June 2001 the Gdańsk Court of Appeal prolonged the applicant’s detention. In addition to the strong probability that he had committed the offences, the court found that the proceedings had been conducted diligently and concluded that only the applicant’s detention would guarantee the proper conduct of the final stage of the proceedings. 24. Between 15 February and 15 October 2001 the applicant served a prison sentence ordered by the Inowrocław District Court in another set of criminal proceedings brought against him. 25. During his pretrial detention the applicant lodged several hundred applications for release. However, these applications and his appeals against the decisions to prolong his detention on remand were to no avail. 26. On 27 September 2001 the Bydgoszcz Regional Court gave judgment. The trial court convicted the applicant and sentenced him to eight years’ imprisonment. The applicant and the prosecutor appealed. 27. Subsequently, the applicant’s detention with respect to this set of criminal proceedings was not prolonged. However, the applicant had not been released as he remained in pre-trial detention ordered in the second set of criminal proceedings (see below). 28. On 17 June 2003 the Gdansk Court of Appeal allowed the appeals and quashed the impugned judgment. The case was remitted to the Bydgoszcz Regional Court which, on 14 January 2004, stayed the proceedings because the other set of criminal proceedings before the Zielona Góra Regional Court were pending and the applicant could not be transported to the Bygdoszcz Detention Centre. 29. On 25 May 2005 the Bydgoszcz Regional Court resumed the proceedings. The proceedings are pending before that court. 30. On 11 September 1991 the applicant was arrested by the police in connection with criminal proceedings pending against him. On the same date the Zielona Góra Regional Prosecutor decided to detain him on remand. 31. On 12 July 1994 the Zielona Góra Regional Court acquitted the applicant. 32. On 14 December 1994 the applicant was released from detention. 33. On 24 January 1996 the Poznań Court of Appeal quashed the impugned judgment and remitted the case to the Regional Prosecutor. 34. Between December 1997 and November 1999 the prosecutor stayed the proceedings. 35. On 30 January 2001 the Poznań Court of Appeal decided to detain the applicant on remand in view of the reasonable suspicion that he had committed, with an accomplice, a robbery and three offences of homicide. 36. The applicant appealed, but on 13 January 2001 the Poznań Court of Appeal dismissed his appeal. 37. On 19 April, 24 July and 25 October 2001 and 24 April, 23 July and 24 October 2002 as well as on 22 January 2003 the Poznań Court of Appeal further prolonged his detention. The court held that the reasonable suspicion that the applicant had committed the offences with which he had been charged, the severity of the anticipated sentence and the need to secure the proper conduct of the investigation justified keeping the applicant in detention. 38. On 13 March 2003 the applicant was indicted before the Zielona Góra Regional Court. 39. On 26 March 2003 the Poznań Court of Appeal further prolonged the applicant’s detention. Subsequently, the applicant’s detention was prolonged on three occasions in 2003, and on 25 March, 24 June, 23 September and 21 December 2004. The court in all those decisions found that the grounds for keeping him in detention were still valid. 40. On 28 April 2005 the trial court gave judgment. The applicant was convicted as charged and sentenced to twenty-five years’ imprisonment. 41. The applicant requested that the written reasons for the judgment be prepared by the trial court so as to allow him to lodge an appeal. 42. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006. 43. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. The relevant part of Article 103 § 1 of the Code provides as follows: “Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.” For a more detailed rendition of the relevant domestic law provisions see the Court’s judgment in Michta v. Poland, no. 13425/02, § 33, 4 May 2006. 44. According to Article 10 (a) of the Law of 29 June 1995, as amended by the Law of 1 December 1995, different rules applied in respect of persons whose detention on remand started before 4 August 1996. This Article provided: “1. In cases where the total period of detention on remand which started before 1 August 1996 exceeds the time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure, the accused shall be kept in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Article 222 § 4 of the Code of Criminal Procedure. 2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be quashed not later than 1 January 1997.” Article 2 § 2 of the Law of 6 December 1996, which added certain new grounds for prolonging detention beyond the timelimits, provided: “In cases where a request for prolongation of detention imposed before 4 August 1996 is lodged on the basis of Article 222 § 4, as amended by Article 1 of this law, the detention shall continue until that request has been examined by the Supreme Court.”
| 1
|
train
|
001-22736
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,002
|
DAL AND ÖZEN v. TURKEY
| 4
|
Inadmissible
|
Ireneu Cabral Barreto;Mark Villiger
|
The applicants, Özkan Dal and Erkan Özen, are Turkish nationals, who were born in 1970 and 1963 respectively and live in Ankara and Çanakkale. They were represented before the Court by Mr Tevfik Demirel, a lawyer practising in Ankara. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicants from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicants: The first applicant, a non-commissioned officer, was a member of the Menzil group, which was attached to the Nakşibendi sect. He established contacts with officers O.A and M.Y who were involved in the activities of the sect. He had antisocial character and his wife carried an Islamic scarf. The second applicant, also a non-commissioned officer, was a member of the Işıkcı sect. He had an antisocial character and his wife carried an Islamic scarf. He avoided participating in social gatherings in military premises. His superiors considered the applicant as an insubordinate and undisciplined soldier. He was sentenced to six days’ confinement for being absent when called out and two days’ confinement for being absent in a social gathering. He received a warning for being undisciplined. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicants had breached military discipline and that they should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”
| 0
|
train
|
001-84365
|
ENG
|
SRB
|
CHAMBER
| 2,008
|
CASE OF R. KAČAPOR AND OTHERS v. SERBIA
| 4
|
Violation of Art.6-1;Violation of P1-1
|
András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
|
5. The applicants, Ms Remka Kačapor (“the first applicant”), Ms Huljka Kačapor (“the second applicant”), Ms Aziza Elezović (“the third applicant”), Ms Senada Dolovac (“the fourth applicant”), Ms Šaha Rizović (“the fifth applicant”) and Ms Muška Crnovršanin (“the sixth applicant”) are all citizens of Serbia who were born in 1972, 1956, 1967, 1969, 1951 and 1950, respectively, and currently live in the Municipality of Novi Pazar. 6. Between 1993 and 2002 the applicants, at that time employed with a “socially-owned company” (društveno preduzeće; see paragraphs 71-76 below), Vojin Popović-Domaća radinost, were all “placed” by their employer on a “compulsory” paid leave scheme “until such time” when this company’s business performance could be “improved sufficiently”. 7. Whilst on leave, in accordance with the relevant domestic legislation, the applicants were entitled to a significantly reduced monthly income, as well as the payment by their employer of their pension, disability and other social security contributions. 8. By 11 November 2002 all applicants had been dismissed. At the same time, however, their employer apparently agreed to pay them 10,000 Dinars (“RSD”) each, as well as to cover their respective social security contributions in exchange for their undertaking not to seek their monthly paid leave benefits. 9. It would appear that the applicants’ employer honoured its former commitment but failed to fulfil the latter. The applicants, therefore, brought six separate civil claims before the Municipal Court (Opštinski sud) in Novi Pazar. 10. On 16 April 2003 the Municipal Court in Novi Pazar (hereinafter “the Municipal Court”) ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits (naknadu za vreme plaćenog odsustva) due from 1 May 1993 to 16 June 1996 and 25 June 1998 to 31 May 2001, indexed in accordance with the relevant domestic regulations, plus statutory interest; and ii. RSD 8,650 (approximately 140 euros [EUR]) for her legal costs; as well as iii. coverage of her pension and disability insurance contributions (doprinosi za penzijsko i invalidsko osiguranje) due for that period. 11. This judgment became final on 23 June 2003. 12. On 5 February 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 13. On 28 April 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order. 14. On 7 February 2005 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits due from 1 April 2000 to 11 November 2002 (RSD 59,672 in all - approximately EUR 745), plus statutory interest; and ii. RSD 20,250 (approximately EUR 252) for her legal costs. 15. This judgment became final on 10 March 2005. 16. On 9 May 2005 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 17. On 6 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order. 18. On 27 January 2005 and 26 May 2005 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits due from 30 August 2001 to 1 November 2002 (RSD 49,714 in all - approximately EUR 600), plus statutory interest; and ii. RSD 9,750 (approximately EUR 117) for her legal costs; as well as iii. coverage of her pension and disability insurance contributions due from 1 January 1995 to 1 November 2002. 19. This judgment became final on 29 June 2005. 20. On 14 July 2005 applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 21. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order. 22. On 9 December 2004 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits due from 1 June 1994 to 19 August 2002 (RSD 64,711 in all - approximately EUR 837), plus statutory interest; and ii. RSD 7,800 (approximately EUR 100) for her legal costs; as well as iii coverage of her pension and disability insurance contributions due from 1 June 1994 to 11 November 2002. 23. This judgment became final on 28 March 2005. 24. On 19 April 2005 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 25. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order. 26. On 24 September 2003 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits due from 1 June 1994 to 31 May 2001, as well as those from 1 June 2001 to 11 November 2002 (RSD 101,887 in all - approximately EUR 1,625, as regards the latter period), plus statutory interest; and ii. RSD 7,800 (approximately EUR 125) for her legal costs; as well as iii. coverage of her pension and disability insurance contributions due for the above periods. 27. This judgment became final on 9 December 2003. 28. On 26 February 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 29. On 15 March 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order. 30. On 17 May 2004 the Municipal Court ruled in favour of the applicant and ordered her former employer to pay her: i. the monthly paid leave benefits due from 1 June 1994 to 11 November 2002 (RSD 74,850 in all - approximately EUR 1,050), plus statutory interest; and ii. RSD 16,200 (approximately EUR 227) for her legal costs; as well as iii. coverage of her pension and disability insurance contributions due for that period. 31. This judgment became final on 8 November 2004. 32. On 29 November 2004 the applicant filed a request for the enforcement of the above judgment, proposing that it be carried out by means of a bank transfer and the auctioning of the debtor’s specified movable and immovable assets. 33. On 6 December 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order. 34. On 30 November 2004 and 21 February 2005, respectively, the applicants sent two separate letters to the Ministry of Finance, stating, inter alia, that their former employer (hereinafter “the debtor”): i. had, for the past ten years, deliberately avoided doing business through its official bank accounts; ii. had instead, apparently, engaged in cash transactions or even used other “secret” bank accounts, unknown to the tax authorities; and iii. that, as a result, judicial enforcement by means of a bank transfer had been rendered impossible. Finally, the applicants requested that urgent action be taken to secure the enforcement of their final judgments. 35. On 23 December 2004 the Ministry of Finance (hereinafter “the Ministry”) found that the debtor had failed to pay the total amount of the taxes and social security contributions due. 36. On 12 January 2005 the Ministry ordered the debtor to pay the outstanding sum. 37. On 25 January 2005 the Ministry filed a request for the formal institution of misdemeanour proceedings, stating that the debtor had failed to comply with this order. 38. On 21 March 2005 the Ministry sent a letter to the applicants, noting that their submissions had been duly considered but that, in view of the confidential nature of the information obtained, no details could be disclosed. 39. On 6 June 2005 the applicants sent another complaint to the Ministry, stating that the situation concerning the bank accounts had remained unchanged. 40. On 28 October 2005 the Commercial Court (Trgovinski sud) in Kraljevo (hereinafter “the CCK”) opened insolvency proceedings in respect of the debtor. The effect of this was that the ongoing enforcement proceedings before the Municipal Court were stayed ex lege, in accordance with Article 73 of the Insolvency Procedure Act (see paragraph 70 below). 41. This decision was published in the Official Gazette of the Republic of Serbia on 28 November 2005. 42. In December 2005 the applicants duly submitted their respective claims. 43. On 22 December 2005 the insolvency proceedings conducted against the debtor were joined with the insolvency proceedings pending in respect of Vojin Popović-Holding AD, hereinafter “the VPH Company” (see paragraph 56 below). 44. On 23 March 2006 and 8 June 2006, the CCK confirmed the applicant’s paid leave claims, but held that a part of their social security claims were dubious, which is why they were informed that they could bring a separate civil lawsuit in this regard. 45. On 20 July 2006 the High Commercial Court (Viši trgovinski sud) ordered that the insolvency case in question be transferred to the Commercial Court in Užice (hereinafter “the CCU”), the reason apparently being that the CCK had been put under increasing pressure locally. 46. On 8 September 2006 the CCU quashed the decisions adopted by the CCK on 23 March 2006 and 8 June 2006, respectively. It also disjoined the proceedings in respect of the debtor from those pending against the VPH Company. 47. On 26 January 2007, by means of a faxed note, an official involved in the insolvency proceedings informed the applicants that their claims were dubious in view of their “prior undertakings” (see paragraph 8 above). 48. On the same date the applicants informed this official that the final judgments adopted in their favour had already taken these issues into account, but had dismissed them on their merits (see paragraph 9 above). 49. Several days later, the applicants filed a request with the CCU, seeking the confirmation of their claims. 50. On 14 January 2007 the State apparently adopted a formal decision accepting to cover the applicants’ social security contributions. This decision, however, has apparently yet to be served on the applicants. 51. On 20 March 2007 the CCU ordered the valuation of the debtor’s assets as well as their subsequent sale. 52. On 20 April 2007, however, the CCU rejected the applicants’ claims in their entirety. 53. On 14 May 2007 the applicants filed a separate civil suit with the same court, seeking confirmation of their claims as recognised in the final judgments rendered in their favour. 54. On 18 May 2007 the CCU accepted to reconsider the applicants’ claims within the insolvency proceedings. 55. On 28 June 2007 the same court suspended the separate civil suit, pending the imminent re-examination of the applicants’ claims within the insolvency proceedings. 56. As of September 2007, the debtor was incorporated as a limited liability company (društvo sa ograničenom odgovornošću). It was, however, owned solely by the VPH Company, approximately 87% of which was itself socially-owned (u društvenoj svojini; see also paragraph 75 below). 57. Article 4 § 1 provided that all enforcement proceedings were to be conducted urgently. 58. Article 30 § 2, inter alia, provided that it was up to the enforcement court, ex officio, to choose the appropriate means of enforcement, whenever a creditor proposed more than one avenue, whilst taking into account the funds needed in order to cover the claims in question. 59. Articles 63-84, 134-176 and 180-188 contained details as regards enforcement by means of a bank transfer, as well as through the auctioning of the debtor’s movable and immovable assets. Under Article 184 § 4, in particular, the Central Bank (Narodna banka) was obliged to respond to a creditor’s request and inform him about the priority of his bank transfer compared to any others. 60. The Enforcement Procedure Act of 2004 (“the 2004 Act”) entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act of 2000 (“the 2000 Act”). 61. Article 5 § 1 of the 2004 Act provides that all enforcement proceedings are to be conducted urgently. 62. Article 8 § 2, in the relevant part, corresponds to the provisions of Article 30 § 2 of the 2000 Act. In addition, it provides that the court may choose the appropriate means of enforcement ex officio or at the request of the parties. 63. Articles 69-153 and 196-204 set out the relevant details as regards enforcement by means of a bank transfer as well as enforcement through the auctioning of the debtor’s movable and immovable assets. Article 199, in particular, provides that the enforcement order shall be forwarded to the Central Bank which shall then instruct the debtor’s bank to proceed with a wire transfer or a cash payment, as appropriate. 64. In accordance with Article 304 of the 2004 Act, all enforcement proceedings instituted prior to 23 February 2005 are to be carried out pursuant to the previous 2000 Act. 65. These internal decisions provide that the Central Bank shall be obliged to respond to a creditor’s request for an update as regards the current status of a court-ordered bank transfer. 66. Articles 47-49 and 57, inter alia, regulate technical details as regards the process of enforcement by means of a bank transfer. They do not, however, specifically provide for an obligation on the part of the Central Bank to inform the enforcement court about the current status of the transfer in question. 67. Under Article 54 § 1, inter alia, the Central Bank shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “blocked” due to outstanding debts for a period of 60 days consecutively, or for 60 days intermittently, within the last 75 days. 68. Article 6 provides that insolvency proceedings cannot be instituted in respect of State bodies, foundations and agencies and the Central Bank, as well as legal entities established and exclusively or predominantly funded by the State. 69. Article 19 states the conditions under which an insolvency administrator (stečajni upravnik) can be sued for damages in a separate civil suit. 70. Article 73 §§ 1 and 2 provides that “as of the day of institution of the insolvency proceedings” the debtor cannot simultaneously be subjected to a separate enforcement procedure. Any ongoing enforcement proceedings shall thus be stayed, while new enforcement proceedings cannot be instituted as long as the insolvency proceedings are still pending. 71. Socially-owned companies, hereinafter “SOC”, as well as “social capital”, are a relict of the former Yugoslav brand of communism and “self-management”. 72. Their current legal status in Serbia is primarily defined by: (i) Articles 392-400v and Article 421a of the Corporations Act 1996 (Zakon o preduzećima; published in OG FRY nos. 29/96, 33/96, 29/97, 59/98, 74/99, 9/01 and 36/02); (ii) Articles 1, 3, 14 and 41b of the Privatisation Act (Zakon o privatizaciji; published in OG RS nos. 38/01, 18/03 and 45/05); and (iii) Article 456 of the Corporations Act 2004 (Zakon o privrednim društvima; published in OG RS no. 125/04). 73. Based on this legislation, SOC are only those companies which are entirely comprised of social capital (preduzeća koja u celini posluju društvenim kapitalom). They are also independent legal entities which are both owned and run by their own employees and can be subjected to regular insolvency proceedings (see paragraph 68 above). Social capital, however, was to be privatised by March 2007 and the funds thus obtained paid into the State’s budget. 74. Once privatisation formally commences in respect of a given SOC, any and all of its decisions amounting to an obstruction of the privatisation process shall be deemed null and void. The Government shall also have the right to appoint their own representatives to sit in the governing bodies of the SOC in question, whenever the Privatisation Agency finds that such obstruction has indeed taken place (see, in particular, Article 400a of the Corporations Act 1996). 75. Further, as of 2002, companies whose capital is predominantly socially-owned (preduzeća koja posluju većinskim društvenim kapitalom), but which are not formally being privatised, cannot, without prior approval by the Privatisation Agency (Agencija za privatizaciju), itself a State body, adopt their own decisions concerning their: capital, reorganisation, restructuring and investment, the partial sale or mortgage of their assets, the settlement of their outstanding claims and the taking or giving of loans and guarantees outside the scope of their “regular business operations” (van toka redovnog poslovanja). Any decisions adopted in the absence of such approval shall be declared null and void by the Privatisation Agency (see, in particular, Article 398a of the Corporations Act 1996). Finally, no decisions concerning the status and organisation of such companies (odluke o statusnim promenama i promenama oblika preduzeća) can be adopted without the Government’s prior approval (see, in particular, Article 421a of the Corporations Act 1996). 76. The above-described regime was in force until March 2007 (see Article 456 of the Corporations Act 2004 and Article 14 of the Privatisation Act), the competent ministries having announced that its extension was imminent. 77. Under Articles 2 and 3 the State accepted to cover the minimum pension and disability insurance contributions due from 1 January 1991 to 31 December 2003 in respect of certain categories of registered workers whose employers had themselves failed to do so. 78. In accordance with Articles 4-6 the employers, as well as the workers in question, could have filed a request to this effect with the State Pension and Disability Fund (Republički fond za penzijsko i invalidsko osiguranje zaposlenih), the deadline for so doing having expired in January 2006. 79. Pursuant to Articles 7-9 the timing of the actual settlement of an applicant’s recognised claim would depend on the “liquidity of the State’s budget” 80. Under Article 12 all workers whose claims had been accepted could not seek any additional payments on the same grounds from their employers, including by means of litigation. 81. The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 68, 71 and 72, 13 March 2007). 82. The relevant provisions concerning the status of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 22-25, 19 September 2006).
| 0
|
train
|
001-112129
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,012
|
KOMISSAROVA v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
|
1. The applicant, Ms Valentina Yuryevna Komissarova, is a Russian national who was born in 1982 and lives in Magadan. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 2 December 2005 the applicant married Mr M.V. Grishin, who at the time was standing trial on charges of several acts of aggravated hooliganism involving violent attacks on citizens under a minor pretext, with the use of arms, threats of killing, use of obscene language, infliction of physical pain and bodily harm on his victims, and characterised by a total disregard for society and flagrant violation of public order, with one of the episodes having taken place at a public hospital in the presence of patients and medical staff. He was also accused of creating and leading an armed gang with the aim of misappropriating others’ property by way of attacks on citizens and organisations, which had allegedly carried out robberies and extortion in 2001-02 with use of arms and violence dangerous to life and health, illegal storage and transportation of misappropriated industrial gold, and arms-related offences. The charges had been brought against Mr Grishin in 2002 and 2003. In a judgment of 29 June 2004 he had been found guilty of battery, indemnified from punishment as the prosecution had by then become time-barred, and acquitted of the other charges. The proceedings against him were pending before a trial court after that judgment had been set aside on appeal on the ground of serious violations of procedural rules on the selection of jurors and during the trial. 4. On 6 December 2005 Mr Grishin, who had been at liberty for more than a year and a half after being remanded in custody during the preliminary investigation and the first hearing, was remanded in custody again in the interests of the proceedings in the case, in view of several victims’ and witnesses’ refusal or reluctance to testify in court out of fear of reprisals from Mr Grishin and his co-accused. He was placed in the Magadan SIZO1. 5. On 12 December 2005 the applicant visited Mr Grishin in SIZO-1. 6. On 27 December 2005 a Magadan Regional Court judge presiding over Mr Grishin’s trial refused the applicant’s next request to visit Mr Grishin. The applicant’s complaint about that refusal, which she made on 27 January 2006 to the President of the High Qualification Board of Judges of the Russian Federation, and that of 27 February 2008, which she made to the President of the Magadan Regional Court, were answered on 4 May 2006 and 1 April 2008 respectively, by statements that those officials had no competence to deal with the matter. 7. From 23 December 2005 to 6 May 2006 the applicant was present at thirteen hearings in Mr Grishin’s case. According to the Government, she could communicate with him before and after the hearings and during the breaks. According to the applicant, no contact with her husband had been possible in the courtroom. No new requests for leave to visit her husband in his detention facility were made by the applicant during this time. 8. On 12 May 2006 the applicant gave birth to a son. 9. In June 2006 she asked for leave to visit her husband in SIZO-1. Her request was granted, as well as her all subsequent requests. According to a document from SIZO-1, no. 49/1/12 of 22 April 2008, such visits took place on 21 June, 20 September and 27 December 2006, 28 March, 16 and 30 May 2007, 6 June, 11 July and 18 July, 26 September, 10 October, 28 November and 29 December 2007, and 13 and 20 February, 5 March and 2 April 2008. According to the applicant, the visits were two hours long. On four occasions she brought her son with her. 10. There were five cubicles in SIZO-1 for short visits, designed in accordance with directives approved by the Russian Federation Ministry of Justice on 3 October 2004. Visitors and detainees were separated by a partition made of wood to a height of 80 centimetres, and then glass to the ceiling. There were metal bars and steel wire on the glass partition. The cubicles were equipped with communicating phones and seats. A place for an officer on duty was equipped with a device for wiretapping, warning and interruption of communication. 11. According to the applicant’s submissions in her original application form, the cubicles were dirty and littered, with rats running on the floor, and they had no normal chairs. According to the Government, the cubicles were cleaned daily by prisoners under the supervision of an officer on duty. Their sanitary condition was routinely checked by authorised officials. They were regularly disinfected and disinfested in compliance with the relevant sanitary regulations by a specialised company under the supervision of the SIZO1 medical unit, which was confirmed by the relevant documentation. In her comments on the Government’s observations the applicant clarified that she had seen rats in a different room, which was used for passing parcels to detainees. 12. According to the applicant, her husband’s remand in custody had put her in a difficult position. She lacked means of subsistence for herself during her pregnancy, which was complicated by the threat of miscarriage, and later also for her child. In order to hand over parcels to her husband she had to wait for hours, especially before holidays, because of the large number of people there. According to a SIZO-1 document dated 15 December 2008, Mr Grishin received 119 parcels. 13. Under section 18 of the Federal Law on the Remand in Custody of Suspects and Persons Accused of Offences no. 103-FZ of 15 July 1995, subject to written consent from the official or authority in charge of the criminal case a suspect or accused may have up to two meetings per month with relatives and others, each visit to last for up to three hours.
| 0
|
train
|
001-23211
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,003
|
ANTOINE v. THE UNITED KINGDOM
| 1
|
Inadmissible
|
Matti Pellonpää;Nicolas Bratza
|
The applicant, Mr Pierre Harrison Antoine, is a United Kingdom national, born in 1979 and detained in Bexley Hospital. He is represented before the Court by Kaim Todner Solicitors, lawyers practising in the United Kingdom. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, then aged 16 years, was arrested on 3 December 1995, together with another youth D. aged 17 years in connection with the murder of Michael Earridge, aged 15. The applicant was interviewed in police custody over a period of three days. He admitted being present on the premises where the killing had taken place but denied having taken an active part. He said that he left the room on two occasions and when he returned the second time, he saw D. stabbing Michael Earridge. D. was charged with murder on 4 December 1995, the applicant on 5 December 1995. The prosecution case was that the two had acted in furtherance of a joint enterprise and that the murder had been committed as an act of sacrifice to the devil. It was alleged that D. had plunged a knife into Michael Earridge’s chest in the presence of the applicant after the applicant had prevented the victim from leaving and had struck him. The applicant and D. were committed for trial to Inner London Crown Court on an indictment charging them with murder and, in the alternative, manslaughter. His co-accused, D., entered a guilty plea to manslaughter by reason of diminished responsibility. After consideration of medical reports, the plea was accepted by the Crown and D. was sentenced to committal to hospital under a hospital order subject to a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1983. The applicant appeared before the Crown Court on 13 March 1997. The evidence of three psychiatrists who had examined the applicant was that he was suffering from paranoid schizophrenia. Counsel acting on the applicant’s behalf submitted that the applicant was unfit to plead or to stand trial by reason of his mental disability. On 18 March 1997, evidence was heard before the jury from three psychiatrists (two for the defence and one for the prosecution). The trial judge, with the support of both counsel for the prosecution and for the defence, directed the jury to find that the applicant was unfit to plead or stand trial. This finding was in accordance with the R v. Pritchard case ([1836] 7 C & P 303), on the basis that the applicant was unable to instruct his legal representatives to plead to the indictment, to challenge jurors, to understand the evidence or to give evidence in his own defence. Following this finding, and in accordance with section 4A of the Criminal Procedure (Insanity) Act 1964 (the “1964 Act”), a second jury was empanelled in order to determine whether the applicant ‘did the act or made the omission charged against him’ (a “section 4A hearing”). On 19 March 1997, counsel for the applicant submitted that the applicant should be entitled to raise the issue of diminished responsibility during the section 4A hearing. The judge made two rulings: firstly, that in order to prove that the applicant had committed the act, the prosecution must prove both the actus reus and the mens rea and, secondly, that diminished responsibility could not be raised in a section 4A hearing. On 2 June 1997, the jury heard evidence concerning the events surrounding the killing, including the applicant’s interviews. The case followed the adversarial procedure of a criminal trial, with evidence being called by each side and subjected to cross-examination, closing speeches and a summing up to the jury. At the conclusion of the evidence, the second jury were satisfied that the applicant had committed the necessary act, and the judge thereupon made an order under the provisions of section 5 of the 1964 Act that the applicant be committed to hospital without limit of time. On 19 April 1999, the applicant was granted leave to appeal. On 29 April 1999, the Court of Appeal dismissed the appeal but certified that the case raised a point of law of general public importance, namely, whether it was open to a person found unfit to plead, and who was subject to a trial of the facts on a charge of murder under section 4A, to raise the defence of diminished responsibility. The House of Lords granted leave to appeal on 26 July 1999. On 30 March 2000 the House of Lords ruled that the prosecution only had to prove the actus reus and not the mens rea in a section 4A hearing. The only time when mens rea might become relevant would be where there is “objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence”. Their Lordships also ruled that the statutory defence of diminished responsibility could not be raised in a section 4A hearing. This decision was taken principally because of the effect of the wording of section 2 of the Homicide Act 1957, which established this statutory defence as being available only as an alternative to a liability for murder. Once unfitness to plead has been determined, the trial cannot proceed, the defendant can no longer be ‘liable to be convicted of murder’, and that defence is no longer available. Lord Hutton, in giving the leading judgment, commented: “The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or has made an omission) which would constitute a crime if done (or made) with the requisite mens rea.” The criminal proceedings are currently stayed against the applicant indefinitely, and the Crown Prosecution Service has indicated in this case an intention to revive the proceedings if, at any time in the future, the applicant should recover. A jury cannot make a determination that a defendant is unfit to be tried “except on the written or oral evidence of two or more registered medical practitioners” (section 4(6) of the Criminal Procedure (Insanity) Act 1964). The test for the jury is whether the defendant is able to plead to the indictment, whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he might wish to object, and to understand the details of the evidence (R. v. Pritchard [1836] 7 C. & P. 303). On a finding of unfitness to plead “the trial shall not proceed” (section 4A(2)), and a further jury must be empanelled to determine “whether they are satisfied, as respects the count or each of the counts on which the accused was to be tried, that he did the act or made the omission charged against him as the offence” (section 4A(2)). If they are so satisfied, then “they shall make a finding that the accused did the act or made the omission charged against him” (section 4A(3)). If they are not so satisfied “they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion” (section 4A(4)). The burden of proof is on the prosecution and, in order to prove that the defendant was guilty of doing the act charged, the prosecution must prove their case beyond reasonable doubt. A finding under this procedure is not a finding of guilt (R. v. Southwark Crown Court ex parte Koncar [1998] 1 Cr.App.R. 321, DC). Under section 5, if the accused is found unfit to plead and the jury determines that he did the act or made the omission charged, then the court may make one of the following orders: (a) an admission order to such hospital as the Secretary of State specifies; (b) a guardianship order under the Mental Health Act 1983; (c) a supervision and treatment order; or (d) an order for the accused’s absolute discharge. Where however the offence to which the finding relates is murder, then the court must make an admission order together with an order restricting his discharge without limitation of time. If the jury are not satisfied that the accused did the act or made the omission charged they must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion (section 4A(4)). If, while a person is detained under an admission order, the Secretary of State is satisfied that he can be properly tried, he may remit the person for trial (Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, paragraph 4(1)). Following the decision in the applicant’s case and the entry into force of the Human Rights Act 1998, the Court of Appeal gave leave to appeal to the House of Lords in the case of R. v. H. and the Secretary of the Home Department, certifying as a point of law of general public importance the question whether the section 4A procedure was compatible with an accused’s rights under Article 6 §§ 1, 2 and 3(d) of the Convention. In the House of Lords judgment of 30 January 2003, Lord Bingham endorsed the views expressed in the applicant’s case by Lord Hutton (see above) and referring to the Engel v. the Netherlands case (judgment of 8 June 1976, Series A no. 22) in considering whether the section 4A procedure fell within the scope of Article 6 of the Convention, held, inter alia: “16. It is first necessary to know how the issue is classified in domestic law. This test is far from decisive and rightly so, since the Convention seeks the achievement of broadly equivalent standards among the member states of the Council of Europe and such aim would be defeated if domestic rules were determinative. But this is the starting point, and it is clear that the domestic law of England and Wales does not treat the section 4A procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) “shall not proceed or further proceed”. Section 4A(2) is expressed in terms which make it clear that the task of the jury is not that carried out by a jury in a criminal trial: ... the jury have the power to acquit but they have none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment. In a case such as the present, as the legislation has been amended to make clear, an order of absolute discharge may be made in the absence of any conviction and without consideration of the expediency of punishment. It is true that by virtue of section 1(4)b of the Rehabilitation of Offenders Act 1974 references in that Act to a conviction are expressed to include reference to a finding that a person has done the act or made the omission charged, but this was an Act designed to promote the rehabilitation of offenders by enabling them to live down past convictions and the obvious purpose of this provision was to give persons subject to adverse findings under section 4A the benefit of that protection. It is also true that a person found to have done the act or made the omission charged is subject, by virtue of section 1(1)b of the Sex Offenders Act 1997, to the notification requirements of that Act. But I regard it as clear, as a matter of domestic law, that this provision is designed to protect the public and not to punish the subject of the order. The non-punitive nature of the order was recognised by the Commission in Ibbotson v. the United Kingdom (1998) 27 EHRR CD 332. The registration order is analogous to a sex offender order or an anti-social behaviour order ... 17. The second Engel test, and that on which the appellant’s argument depended, directed attention to the very nature of the offence. ... 18. It would be highly anomalous if section 4A, introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial, were itself to be held incompatible with the Convention. It is very much in the interest of such persons that the basic facts relied on against them (shorn of issues concerning consent) should be formally and public investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances. The position of accused persons would certainly not be improved if section 4A were abrogated. In my opinion, however, the argument is plainly bad in law. Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment. Even an adverse finding may lead, as here, to an absolute discharge. But if an adverse finding leads to the making of a hospital order, there is no bar to a full criminal trial if the accused person recovers, an obviously objectionable outcome if the person has already been convicted. ... 19. ... [As regarded the third Engel test] Mr Smith for the appellant accepted that he could not rely on this test, because he accepted that the orders which the court could make on a finding by the jury adverse to the accused under section 4A were none of them punitive. But the fact that the procedure cannot culminate in any penalty is not neutral. The House was referred to no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It is, indeed, difficult if not impossible to conceive of a criminal proceeding which cannot in any circumstances culminate in the imposition of any penalty, since it is the purpose of the criminal law to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions.” Section 2 provides for a defence of diminished responsibility to a charge of murder: “(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. ... (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”
| 0
|
train
|
001-139284
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,013
|
ADAMS v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
|
1. The applicant, Mr Andrew Keith Adams, is a British national, who was born in 1970 and lives in Newcastle-On-Tyne. He is represented before the Court by D. Machover, a lawyer practising in London with Hickman & Rose. 2. On 18 May 1993 the applicant was convicted by a jury of murder. K.T. was the principal witness at his trial. The applicant was subsequently sentenced to life imprisonment. 3. On 16 January 1998 the Court of Appeal (Criminal Division) (“CACD”) dismissed his appeal. 4. In 1998 the applicant applied to the Criminal Cases Review Commission (“CCRC”) for a review of his conviction. On 27 September 2005 the CCRC referred the applicant’s case back to the CACD. 5. On 12 January 2007 the CACD allowed the applicant’s appeal. It considered in detail a number of alleged failings in the applicant’s defence at trial. It concluded that the failure by the applicant’s defence team to deploy relevant evidence in respect of, inter alia, K.T. in his defence resulted in his conviction being unsafe, explaining: “156. It is difficult to conclude that the criticisms and failures which we have found in respect of any one of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together, cumulatively they were sufficient to render the verdict unsafe. Each of these topics was important ... 157. We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe. The appeal will be allowed and the conviction quashed.” 6. Following the quashing of the conviction, the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”). 7. By letter dated 3 January 2008 the applicant’s solicitors were informed that the Secretary of State did not consider that a right to compensation arose in his case, for two reasons. First, the applicant’s conviction had not been reversed on the basis of new or newly discovered facts. Second, it could not be said that there had been a miscarriage of justice in the sense that the applicant should never have been convicted. All that could be said, on the basis of the judgment of the CACD, was that the jury might or might not have reached a different conclusion had the defence made proper use of the material in question. 8. The applicant subsequently brought judicial review proceedings challenging the decision to refuse to pay him compensation under section 133 of the 1988 Act. He contended that he met the criteria for compensation set out in that section. 9. The claim was dismissed by the Divisional Court on 4 February 2009. The court referred to the comment of the CACD to the effect that the judgment quashing the conviction was not to be taken as finding that if there had been no failures the applicant would inevitably have been acquitted. The court considered the discussion of the meaning of “miscarriage of justice” by Lords Bingham of Cornhill and Steyn in R (Mullen) v. Secretary of State for the Home Department ([2004] UKHL 18) and held that the applicant did not fall within either interpretation. The court further noted counsel for the applicant’s concession that he could not succeed in showing beyond reasonable doubt that a miscarriage of justice had occurred in light of the Court of Appeal’s judgment in R (Allen) v. Secretary of State for Justice ([2008] EWCA Civ 808). 10. Finally, the court concluded that, in any event, the conviction had not been quashed on the basis of new or newly discovered facts. 11. The applicant was granted leave to appeal on 10 June 2009. On 27 November 2009 the Court of Appeal dismissed the appeal. Lord Justice Dyson, giving judgment for the court, accepted that the applicant’s conviction had been quashed on the basis of new or newly discovered facts. He therefore turned to examine whether there had been a miscarriage of justice. 12. He identified four categories of case where the CACD allowed an appeal against conviction on the basis of fresh evidence, and explained each category as follows: “19. ... A category 1 case is where the court is sure that the defendant is innocent of the crime of which he has been convicted. An obvious example is where DNA evidence, not obtainable at the time of trial, shows beyond doubt that the defendant was not guilty of the offence. A category 2 case is where the fresh evidence shows that he was wrongly convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted. An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness, so that no fair-minded jury could properly have convicted on the evidence of that witness. It does not follow in a category 2 case that the defendant was innocent. A category 3 case is where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair-minded jury could properly convict if there were to be a trial which included the fresh evidence. The court concludes that a fair-minded jury might convict or it might acquit. There is a fourth category of case to which Lord Bingham referred in Mullen. This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.” 13. 14. The present case, the judge said, was neither a category 1 nor a category 2 case. He continued: “20. ... On any view, it was a category 3 case. As I have said, the CACD accepted that there was some force in the submissions made on behalf of the prosecution that the case against the appellant was strong. Nevertheless, they said that the case was ‘by no means overwhelming’. In other words, they did not say that no fair-minded jury could properly have convicted if the undeployed evidence had been before them. The appellant had already been in custody for some 15 years when the CACD allowed his appeal. No doubt it was for that reason that there was no order for a retrial ...” 15. Noting counsel for the applicant’s submission that it was also a category 4 case, the judge examined carefully Lord Bingham’s interpretation of miscarriage of justice in Mullen and subsequent case-law in so far as it discussed that interpretation. He concluded that even if the failure to use the undeployed evidence had resulted in an unfair trial in the applicant’s case, that did not lead to a miscarriage of justice according to Lord Bingham’s interpretation. He explained: “61. ... The essence of his interpretation is that something has gone ‘seriously wrong in the ...conduct of the trial’... 62. ... I do not consider that the errors of trial counsel identified by the CACD in this case caused something to go seriously wrong with the trial process. These errors were committed by experienced and apparently competent counsel acting conscientiously in good faith in the best interests of their client. It cannot fairly be said that the errors showed that the appellant was deprived of effective representation. Accordingly, on an application of Lord Bingham’s interpretation, there was no miscarriage of justice in this case.” 16. On 25 May 2010 the applicant was granted permission to appeal to the Supreme Court. His appeal was heard together with those of two other appellants. On 11 May 2011 the Supreme Court dismissed his appeal. 17. Lord Phillips, in the majority, considered the primary object of section 133 to be clear, namely to provide entitlement to compensation to a person who had been convicted and punished for a crime that he did not commit. But he considered that a subsidiary object of the section was that compensation should not be paid to a person who had been convicted and punished for a crime that he did commit. He continued: “37. ... The problem with achieving both objects is that the quashing of a conviction does not of itself prove that the person whose conviction has been quashed did not commit the crime of which he was convicted. Thus it is not satisfactory to make the mere quashing of a conviction the trigger for the payment of compensation ...” 18. As a framework for the discussion of the correct interpretation of the phrase “miscarriage of justice”, Lord Phillips adopted the categorisation formulated by the Court of Appeal of the circumstances in which convictions might be quashed on the basis of the discovery of fresh evidence. The four categories identified were: “9 ... (1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted. (2) Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant. (3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant. (4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.” 19. Lord Phillips considered that section 133 of the 1988 Act did not embrace categories 3 or 4. He then turned to consider category 1, observing: “43. ... Plainly section 133 will embrace this category, but does it provide the exclusive definition of ‘miscarriage of justice’ in that section? ...” 20. He examined a number of arguments for and against the limitation of the phrase “miscarriage of justice” to this category of cases, noting in particular that it would exclude from entitlement to compensation those who no longer seemed likely to be guilty, but whose innocence was not established beyond reasonable doubt. He considered this a “heavy price to pay” for ensuring that no guilty person was ever the recipient of compensation. 21. Examining, finally, category 2, Lord Phillips expressed doubts as to the practicality and sense of the test it proposed and found that it did not provide a satisfactory definition. He therefore concluded that it should be replaced with a more robust test of miscarriage of justice. He continued: “55. ... A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. I find this a more satisfactory outcome than that produced by category 1. I believe that it is a test that is workable in practice and which will readily distinguish those to whom it applies from those in category 3. It is also an interpretation of miscarriage of justice which is capable of universal application.” 22. Lord Phillips also considered the relevance of Article 6 § 2 to the test for compensation under section 133. He agreed with the reasons given by the Court of Appeal in the applicant’s case for rejecting any reliance on Article 6 § 2. He added: “58. ... The appellants’ claims are for compensation pursuant to the provisions of section 133. On no view does that section make the right to compensation conditional on proof of innocence by a claimant. The right to compensation depends upon a new or newly discovered fact showing beyond reasonable doubt that a miscarriage of justice has occurred. Whatever the precise meaning of ‘miscarriage of justice’ the issue in the individual case will be whether it was conclusively demonstrated by the new fact. The issue will not be whether or not the claimant was in fact innocent. The presumption of innocence will not be infringed.” 23. As to the scope of the term “miscarriage of justice”, Lord Hope explained: “96. ... It clearly includes cases where the innocence of the defendant is clearly demonstrated. But [Article 14(6) of the International Covenant on Civil and Political Right 1966 (“ICCPR”), on which section 133 was based] does not state in terms that the only criterion is innocence. Indeed, the test of ‘innocence’ had appeared in previous drafts but it was not adopted. I would hold, in agreement with Lord Phillips ... that it includes also cases where the new or newly discovered fact shows that the evidence against the defendant has been so undermined that no conviction could possibly be based upon it. In that situation it will have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place. 97. There is an important difference between these two categories. It is one thing to be able to assert that the defendant is clearly innocent. Cases of that kind have become more common and much more easily recognised since the introduction into the criminal courts, long after article 14(6) of the ICCPR was ratified in 1976, of DNA evidence. It seems unlikely that the possibility of demonstrating innocence in this way was contemplated when the test in article 14(6) was being formulated ... The state should not, of course, subject those who are clearly innocent to punishment and it is clearly right that they should be compensated if it does so. But it is just as clear that it should not subject to the criminal process those against whom a prosecution would be bound to fail because the evidence was so undermined that no conviction could possibly be based upon it. If the new or newly discovered fact shows conclusively that the case was of that kind, it would seem right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. I do not think that the wording of article 14(6) excludes this, and it seems to me that its narrowly circumscribed language permits it.” 24. He therefore concluded that category 1 plainly fell within the scope of section 133. He further held that category 2, as rephrased by Lord Phillips, also fell within the scope of that section. He added: “102. ... It may be quite impossible to say in such a case that he was, beyond reasonable doubt, innocent. But, as the evidence against him has been completely undermined, it can be said that it has been shown beyond reasonable doubt, or ‘conclusively’, that there has been a miscarriage of justice in his case which was as great as it would have been if he had in fact been innocent, because in neither case should he have been prosecuted at all.” 25. On the question of the compatibility of section 133 with Article 6 § 2 of the Convention, Lord Hope examined the judgments of this Court and held that the principle that was applied was that it was not open to the State to undermine the effect of an acquittal. However, he considered that Article 14(6) ICCPR did not forbid comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim of damages, when it was necessary to find out what happened. He was of the view that the system created by Article 14(6) did not cross the “forbidden boundary”. He noted that the procedure laid down in section 133 provided for a decision to be taken by the executive on the question of entitlement to compensation, which was entirely separate from the proceedings in the criminal courts. He further noted that in none of the cases from Austria or Norway was the court called upon to consider the interaction between Article 6 § 2 and Article 3 of Protocol No. 7. He continued: “111. ... On the contrary, the fact that the court was careful to emphasise in Sekanina v Austria, para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that ... article 14(6) and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them. A refusal of compensation under section 133 on the basis that the innocence of the convicted person has not been clearly demonstrated, or that it has not been shown that the proceedings should not have been brought at all, does not have the effect of undermining the acquittal.” 26. Lady Hale agreed that a “miscarriage of justice” in section 133 should be interpreted as proposed by Lord Phillips as the phrase was clearly capable of bearing a wider meaning than conclusive proof of innocence. She explained: “115. As I understand it, Lord Phillips’ formulation ... would limit the concept to a person who should not have been convicted because the evidence against him has been completely undermined ... I agree with Lord Phillips that the object of this particular exercise is to compensate people who cannot be shown to be guilty rather than to provide some wider redress for shortcomings in the system.” 27. Lord Kerr also preferred the analysis of Lord Bingham in R (Mullen) to that of Lord Steyn, noting: “172. ... I cannot accept that the section imposes a requirement to prove innocence. In the first place, not only does such a requirement involve an exercise that is alien to our system of criminal justice, that system of justice does not provide a forum in which assertion of innocence may be advanced. An appeal against conviction heard by the Court of Appeal Criminal Division is statutorily required to focus on the question whether the conviction under challenge is safe. In a number of cases, evidence may emerge which conclusively demonstrates that the appellant was wholly innocent of the crime of which he or she was convicted but that will inevitably be incidental to the primary purpose of the appeal. The Court of Appeal has no function or power to make a pronouncement of innocence ...” 28. Although he proposed his own test, namely whether, on the facts as they stood revealed, it could be concluded beyond reasonable doubt that the applicant should not have been convicted, he was content to subscribe to Lord Phillips’ formulation, observing: “178. ... This appears to me to achieve the same result as the test which I would have proposed ... The proper application of either test ties entitlement to compensation firmly to the true factual situation. Procedural deficiencies that led to irregularities in the trial or errors in the investigation of offences will not suffice to establish entitlement to compensation. A claimant for compensation will not need to prove that he was innocent of the crime but he will have to show that, on the basis of the facts as they are now known, he should not have been convicted or that conviction could not possibly be based on those facts. Of course, if innocence can be proved, the test, on either formulation, will be amply satisfied.” 29. Although Lord Clarke preferred the category 2 test as formulated by the Court of Appeal, he accepted the test proposed by Lord Phillips on the basis that it was consistent with his view. 30. As regards Article 6 § 2, Lord Clarke considered that the court hearing and determining a claim for compensation under section 133(1) must not say or do anything inconsistent with the claimant’s acquittal. However, he was satisfied that if the analysis set out in the judgment was adopted, there was no risk of its doing so. The question in each case was whether the claimant had proved beyond reasonable doubt that the new or newly discovered fact demonstrated that there was a miscarriage of justice on the basis that no reasonable jury, properly directed, could convict him. The trial of that question in no way affected or impugned the acquittal of the claimant as provided by section 2 of the Criminal Appeal Act 1968. He explained: “233. The question at such a trial is different and so is the burden of proof. The position is not unlike a civil process where a claimant seeks damages from a defendant who has been acquitted of, say, causing grievous bodily harm to A at a criminal trial. Under English law it is permissible for A to seek damages from the defendant on the ground that he was unlawfully injured by him, alleging all the same facts as had been relied upon at the criminal trial. The critical difference between the two processes is that at the criminal trial the prosecution has to prove guilt beyond reasonable doubt, whereas at the civil trial A only has to prove liability on the balance of probabilities.” 31. Four judges dissented from the Supreme Court’s judgment. Lords Judge, Brown, Rodger and Walker were of the view that section 133 was limited to cases where the defendant had been convicted of an offence of which he was truly innocent (category 1 cases). 32. Details of the relevant domestic law and practice are set out in the judgment of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013.
| 0
|
train
|
001-94127
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF ABDOLKHANİ AND KARİMNİA v. TURKEY
| 2
|
Violation of Art. 3 (in case of deportation to Iran or Irak);Violation of Art. 13+3;Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
6. The applicants were born in 1973 and 1978 respectively and are currently being held in the Gaziosmanpaşa Foreigners’ Admission and Accommodation Centre in Kırklareli. 7. The applicants joined the People’s Mojahedin Organisation in Iran (“the PMOI”, also known as the “Mojahedin-e-Khalq Organization”) in 1992 and 2001 respectively. They arrived in Iraq on unspecified dates. They lived in Al-Ashraf camp, where PMOI members were accommodated in Iraq, until they left the organisation in 2005 and 2006 respectively, because they disagreed with the PMOI’s goals and methods. After leaving the PMOI, they went to the Temporary Interview and Protection Facility (“TIPF”), a camp created by the United States forces in Iraq. This facility was subsequently named the Ashraf Refugee Camp (“ARC”). 8. On 5 May 2006 and 16 October 2007, after being interviewed, the applicants were recognised as refugees by the UNHCR Headquarters in Geneva during their stay in Iraq. As regards the first applicant, the UNHCR found that he had a well-founded fear of persecution in Iran on grounds of his political opinion, his character and the firm conviction with which he held his political opinions. In particular, having regard to the applicant’s link to the PMOI for 10 years, to the treatment of members of the PMOI in Iran and to his explicit opinions on the need for a secular State in his country of origin, the UNHCR considered that the applicant had established to a reasonable degree that his situation would be followed up by the security agencies which would make his stay in Iran intolerable if he returned there. 9. As regards the second applicant, the UNHCR found that he had a well-founded fear of violations by Iranian authorities of, inter alia, his right to life through an arbitrary or unlawful deprivation of life, freedom from torture, ill-treatment, arbitrary arrest or detention, as well as his right to a fair and public trial. In particular, having regard to the applicant’s membership of the PMOI and to his political opinions and the treatment of actual and suspected members of the PMOI and its sympathisers in Iran, the UNCHR considered that the evidentiary threshold of “reasonable likelihood” that the applicant would face treatment such as arbitrary detention and torture was satisfied. 10. In April 2008 the TIPF was closed down and the applicants, along with other former PMOI members, were transferred to northern Iraq. 11. On an unspecified date the applicants arrived in Turkey. They were arrested by security forces and, as they had entered Turkish territory illegally, were deported back to Iraq on 17 June 2008. 12. They immediately re-entered Turkey. 13. On 21 June 2008 they were arrested by road checkpoint gendarmerie officers from the Gökyazı gendarme station, in Muş, as their passports were found to be false. 14. On 21 June 2008 the applicants made statements to the gendarmerie officers. The applicants contended that they would be executed if returned to Iran, due to their opposition to the Iranian Government’s policies, and that their lives had also been at risk in Iraq. They stated that they wished to go to Istanbul in order to request asylum and leave for Canada. 15. The applicants were subsequently placed in the foreigners’ department at the police headquarters in the Hasköy district of Muş. 16. On 23 June 2008 the Muş public prosecutor filed a bill of indictment with the Muş Magistrates’ Court, charging the applicants with illegal entry into Turkey. 17. On the same day the applicants were brought before the Muş Magistrates’ Court. Noting that the applicants would be deported, the judge communicated the bill of indictment to the applicants and took their statements regarding the charge against them. The applicants submitted that they had left Iran as they faced a risk of death in that country and that they had come to Turkey illegally, with the assistance of a smuggler, in order to go to Canada where they had family. The magistrates’ court convicted the applicants as charged but decided to defer the imposition of a sentence for a period of five years in accordance with Article 231 of the Code of Criminal Procedure. The applicants were subsequently taken back to the Hasköy police headquarters. 18. According to the applicants’ submissions, on 28 June 2008 the national authorities once again attempted to deport them, this time to Iran. The applicants prevented their deportation by speaking Arabic and pretending not to understand Farsi. Consequently, the Iranian authorities refused to admit them to Iran. In their submissions to the Court, the Government made no mention of the purported deportation of the applicants to Iran. Instead, they noted that the applicants would be required to be deported to Northern Iraq, where they had come from. 19. On 30 June 2008 the director of the Muş branch of the Human Rights Association, Mr Vedat Şengül, went to the Hasköy police headquarters to visit the applicants at the request of the UNHCR Ankara office. According to Mr Şengül’s submissions, on the day of his visit the first applicant had attempted to commit suicide as he had been told by a police officer that he would be deported to Iran. The police had not allowed Mr Şengül to meet the applicants. 20. On 30 June and 1 and 2 July 2008 the applicants made further statements to the police and contended that they were former members of the PMOI. The first applicant noted that he had had English, Farsi and Arabic lessons as well as military training when he was in the organisation. He also stated that, while in the TIPF, he had been a photographer and taught Arabic. He said that he had not been involved in any armed activity. The second applicant stated that, apart from the aforementioned languages, he had also learned Turkish when he had been a member of the PMOI. He contended that he had lived in the TIPF for two years and had never been involved in any armed activity. Both applicants stated that they had come to Turkey in order to apply to the UNHCR, following advice by AmericanUSA officials to do so. 21. The applicants submitted identical petitions in Farsi to the police in Hasköy, which read as follows: “We entered Turkey with the assistance of a smuggler from the city of Diyana. We are refugees and used to reside in Erbil, Iraq. We came to Turkey in order to contact the UNHCR and ask it to process our [resettlement] cases. The UNHCR’s headquarters in Iraq was blown up by terrorists and it no longer has an office there. We request to stay in Turkey temporarily so that our cases can be processed. Our friends advised us that the only way to contact the UNHCR was to come to Turkey. We need a lawyer before we communicate [with you] further.” 22. The applicants signed these petitions. They also wrote down their UNHCR case numbers, the names of their parents and their dates of birth. 23. The applicants were held at the Hasköy police headquarters, in Muş until 26 September 2008, when they were transferred to the Kırklareli Foreigners’ Admission and Accommodation Centre. 24. On 18 October 2008 the applicants drafted petitions addressed to the Kırklareli governor’s office and sought temporary asylum in Turkey. According to the information in the case file, the applicants have not yet received any reply to their petitions. 25. On 15 December 2008 the second applicant married another Iranian asylum seeker held in the Kırklareli Foreigners’ Admission and Accommodation Centre. The director of the Centre assisted them in obtaining their marriage certificate. 26. On 16 January 2009 the second applicant had a power of attorney notarised for Mr A. Baba, and subsequently Ms S. Uludağ, lawyers practising in Istanbul, to represent him in Turkey. The notary agreed to notarise the power of attorney on the basis of the aforementioned marriage certificate. 27. On 16 March 2009 the second applicant’s lawyer filed a petition with the Ministry of the Interior, challenging the second applicant’s detention. According to the information in the case file, the second applicant has not yet received any reply to his petition. 28. On 25 March 2009, upon a request from the UNHCR, the Government of Sweden agreed to examine the applicants’ cases for resettlement there. According to the information in the case file, that examination is still pending. 29. Article 125 of the Turkish Constitution provides, inter alia: “All acts or decisions of the authorities are subject to judicial review ... If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...” 30. Section 2 of Law no. 2577 provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative decision or act can bring an action for annulment of that decision or act. Section 27(1) of the same Law stipulates that an application to the administrative courts does not automatically suspend implementation of the decision or act in question. Under section 27(2), the administrative courts can order a stay of execution if the decision or act in question is manifestly unlawful and if its implementation would cause irreversible harm. 31. Sections 4 and 8(5) of Law no. 5682, in so far as relevant, read as follows: “Foreigners who come to the Turkish borders without a passport or identity documents or with an invalid passport or identity documents shall not be authorised to enter. Foreigners who claim that they have lost their passport or identity documents while travelling may be authorised, pending an investigation conducted by the Ministry of the Interior, to enter ... and on condition that they can be accommodated at a place designated by the local governor. ...” “Persons who are forbidden to enter Turkey are ... (5) Those who are perceived to have come for the purpose of destroying the security and public order of the Republic of Turkey or of assisting or conspiring with persons who want to destroy the security and public order of the Republic of Turkey.” 32. Sections 19 and 23 of Law no. 5683 read as follows: “Foreigners whose stay in the territory of Turkey is considered to be incompatible with public safety and the political or administrative requirements of the Ministry of the Interior shall be invited to leave Turkey within a fixed time-limit. Those who do not leave Turkey after the expiry of the time-limit may be deported.” “Persons who are to be deported but cannot leave Turkey due to their inability to obtain a passport or for other reasons are obliged to reside at places designated by the Ministry of the Interior.” 33. Section 2(3) of Law no. 1136, as amended by Law no. 4667 of 2 May 2001, provides as follows: “Judicial bodies, police departments, other public institutions and agencies, State economic enterprises, private and public banks, notaries, insurance companies and foundations are under an obligation to assist attorneys in carrying out their duties. These entities are obliged to submit requested information and documents to the lawyers for review, subject to any contrary provisions in the laws establishing these entities. Obtaining copies of such documents is subject to the presentation of a power of attorney. In pending cases, documents may be obtained from the court without waiting until the date of the hearing.” 34. Turkey has ratified the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto. However, it maintains the geographical limitation provided for in Article 1 B of this Convention by which it assumes the obligation to provide protection only to refugees originating from Europe. 35. On 30 November 1994 the Regulation on the procedures and principles related to possible population movements and foreigners arriving in Turkey, either as individuals or in groups, wishing to seek asylum either from Turkey or requesting a residence permit in order to seek asylum from another country (“the 1994 Regulation”), came into force by a decision of the Council of Ministers no. 1994/6169. Under the 1994 Regulation, although formally excluded from the protection of the 1951 Geneva Convention, non-European asylum seekers may apply to the Turkish Government for “temporary asylum seeker status” pending their resettlement in a third country by the UNHCR. 36. Article 3 of the 1994 Regulation defines a refugee and asylum seeker as follows: “Refugee: A foreign national who, as a result of events occurring in Europe and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it; Temporary Asylum Seeker: A foreign national who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” 37. On 16 January 2006 Articles 4, 5, 6, 7 and 30 of the 1994 Regulation were amended by a decision of the Council of Ministers (decision no. 2006/9938). 38. Articles 4, 5 and 6 of the 1994 Regulation now provide as follows: “Foreign nationals entering Turkey legally to seek asylum or to request a residence permit in order to seek asylum in another country shall apply without delay to the governor’s office of the city where they are present. Those who enter Turkey illegally are required to apply without delay to the governor’s office of the province through which they entered the country. Those who fail to apply to the authorities within the shortest reasonable time shall state the reasons for failing to do so and shall co-operate with the competent authorities.” “With regard to individual foreigners who either seek asylum from Turkey or request a residence permit in order to seek asylum from another country the governors’ offices shall a) identify the applicants and take their photographs and fingerprints. b) conduct interviews with the applicants in accordance with the 1951 Geneva Convention relating to the Status of Refugees. For interviewing and decision making, staff shall be appointed at the governors’ offices which are authorised to conduct interviews and to take decisions. c) send the interview documents along with the comments of the interviewer and the decision made on the case of the applicant, in accordance with the authority granted under Article 6, to the Ministry of the Interior. d) pending further instructions from the Ministry of the Interior, accommodate the foreigner in a centre or a guest house considered appropriate by the Ministry of the Interior, or authorise the foreigner to reside freely in a place which shall be designated by the Ministry of the Interior. e) take further steps following instructions from the Ministry of the Interior.” “Decisions on the applications of individual foreigners, either seeking asylum from Turkey or requesting a residence permit in order to seek asylum from another country, shall be adopted by the Ministry of the Interior in accordance with the 1951 Geneva Convention relating to the Status of Refugees and the Protocol of 31 January 1967 relating to the Status of Refugees and this Regulation. When it considers it necessary, the Ministry of the Interior may transfer the decision-making authority to the governors’ offices. The decision taken by a governor’s office or the Ministry of Interior shall be communicated to the foreigner through the governor’s office. Those foreigners whose applications are accepted shall be accommodated in a guesthouse deemed appropriate by the Ministry of the Interior or shall freely reside in a place which shall be designated by the Ministry of the Interior. Those whose applications are not accepted may appeal to the relevant governor’s office within 15 days. For a speedier decision, the period for lodging an appeal may be reduced by the Ministry of the Interior, if deemed necessary. The statement, other information and documents supporting the claim submitted by the applicant appealing the decision shall be sent to the Ministry of the Interior by the governor’s office. Any appeal shall be decided by the Ministry of the Interior and the final decision shall be notified to the foreigner. The situation of those whose appeals are rejected by a final decision shall be assessed within the framework of the general provisions regarding foreigners. Within this framework, those foreigners who are not eligible for a residence permit shall be notified that they must leave Turkey within a time-limit determined by the administration. Foreigners who do not leave the country shall be deported from Turkey by the governors’ offices upon receipt of instructions from the Ministry of the Interior, or ex officio by the governors’ offices where the direct decision-making authority has been transferred to them.” 39. On 22 June 2006 the Minister of the Interior issued a Circular containing a directive regarding the procedures and principles to be applied when implementing the 1994 Regulation (“Circular no. 57”) within the context of the process of Turkey’s accession to the European Union. The Circular contains guidelines regarding, inter alia, asylum seekers’ access to asylum procedures, the manner in which asylum applications and interviews should be processed, the procedure as to the review of decisions refusing temporary asylum, the residence of asylum seekers in Turkey and their transfers to other provinces, health assistance to asylum seekers, the education of their children and the relation between the Ministry of the Interior and the UNHCR. 40. Regarding the issue of access to the asylum and temporary asylum procedure, Circular no. 57 reiterates the content of Articles 4 and 5 of the 1994 Regulation. As to residence permits for asylum and temporary asylum seekers, section 11 of the Circular provides that persons who have applied for asylum or temporary asylum in Turkey, except for those listed in section 13, shall ex officio be granted a residence permit for six months which shall subsequently be extended ex officio for another six months. 41. Section 12 of Circular no. 57, in so far as relevant, provides as follows: “Applicants shall be informed by the governors’ offices of the decision of the Ministry of the Interior regarding their requests. If the decision is positive, the refugee/temporary asylum seeker shall be granted a residence permit upon receipt of the instructions of the Ministry of the Interior. Negative decision at first instance If the first decision taken by the Ministry regarding the applicant’s request is negative, the applicant shall be informed that she or he may lodge an objection against the decision within fifteen days in accordance with Article 6 of the 1994 Regulation. The objection may be made in written form or at an interview, if the applicant requests one. The residence permit of an applicant who has lodged an objection against the first decision given in his or her regard shall be extended and subsequent action shall be taken upon the instructions of the Ministry of the Interior. The applicant can submit any information or document in support of his or her objection. The applicant may lodge an objection with the assistance of a legal representative or an adviser or directly through his or her representative. If the applicant has not lodged an appeal, he or she shall be ordered to leave the country within fifteen days. A check shall be carried out to ensure that he or she has left by the end of this period. If the person has not left within the specified period, action shall be taken to deport him or her pursuant to the general provisions regarding foreign nationals. Final decision The petition containing the applicant’s objection or the information and documents concerning the additional interview shall be sent to the Ministry of the Interior and action shall be taken upon the latter’s instructions. If an applicant is given refugee or asylum seeker status following the examination conducted by the Ministry of the Interior, he or she shall be granted a residence permit upon the instructions of the Ministry. An applicant whose objection has been rejected can leave the country voluntarily. Residence permits as a result of subsidiary protection and protection for humanitarian considerations The cases of applicants whose objections have been rejected by a final decision are assessed within the framework of the general provisions contained in Article 6 of the 1994 Regulation concerning foreigners. This assessment concerns whether the applicant risks incurring serious harm, in the light of the European Convention of Human Rights, and whether it is necessary to grant him or her subsidiary protection. Regard is also had to whether the applicant should be granted a residence permit for humanitarian reasons of health, education, family unity, etc., or if he or she has applied to the administrative courts. Those who are not granted a residence permit within the context of subsidiary protection or protection for humanitarian reasons shall be notified of the decisions taken in their respect. They shall further be informed that they must leave the country within fifteen days, unless another time-limit is set by the Ministry of the Interior. If the person has not left within the specified period, action shall be taken to deport him or her pursuant to the general provisions regarding foreign nationals. If the foreigner does not leave the country and applies to the administrative court, the Ministry of the Interior shall be informed. Action shall be taken upon receipt of instructions from the Ministry...” 42. Section 13 of Circular no. 57, in so far as relevant, provides as follows: “...In order to prevent abuse of international protection and to identify those who actually need international protection, those who belong to the categories below shall not be granted residence permits ex officio: ... Persons who claim asylum following their arrest by security forces; ... Persons who claim asylum following their arrest by security forces while leaving Turkey illegally; ...If the applicant’s request is rejected following the first examination by the Ministry of the Interior and if the applicant does not lodge an objection, he or she shall be deported. If the applicant wishes to object to the decision, he or she shall be given two days in which to do so. The objection and the documents relating to the objection shall be sent to the Ministry of the Interior as a matter of urgency. Action shall be taken upon receipt of instructions from the Ministry...” 43. Under section 3 of Circular no. 57, it is compulsory to provide identity documents for all applicants and asylum seekers/refugees residing in Turkey within 15 days of receipt of their applications. 44. On 25 March 2005 the Government of Turkey adopted a National Action Plan for the adoption of the European Union Acquis in the fields of asylum and immigration. The National Action Plan envisages, inter alia, the adoption of a new asylum law. 45. On 6 August 2008 the representative of A.A., an Iranian national recognised as a refugee under the UNHCR’s mandate and who was held in a Foreigners’ Admission and Accommodation Centre at the relevant time, lodged a case with the Ankara Administrative Court. He requested that the court annul the decision of the Ministry not to release his client and order a stay of execution of that decision pending the proceedings. On 17 September 2008 the Ankara Administrative Court ordered a stay of execution of the decision of the Ministry of the Interior and decided that A.A. should be released. On 17 October 2008 he was released. 46. In the report entitled “Information Regarding Iranian Refugees in the Temporary Interview Protection Facility (ex-TIPF/ARC) at Al-Ashraf, Iraq”, submitted to the Court by the applicants, UNHCR noted, inter alia, the following: “... 14. ...The Iranian government’s treatment of known or suspected members of or sympathisers with the PMOI has reportedly been extremely severe, with long prison sentences and thousands of executions in the years that followed the Islamic revolution. Execution of PMOI members continue to be reported on a sporadic basis, including extra-judicial killings in foreign countries. As a result many PMOI/NLA/NCRI members, or even supporters or family members, are likely to have a well-founded fear of persecution on political grounds. ... 18. Iranian ex-PMOI refugees are considered at particular risk in Iraq. The PMOI has been perceived by some in Iraq as having been affiliated with the former Iraqi regime of Saddam Hussein given the protection that the regime afforded. Others have alleged that PMOI/NLA units were involved in the crushing of the 1991 uprising by Iraqi Kurds and Shia groups which were supported by the Iranian authorities. Groups that were either allied to or perceived to have received preferential treatment from the regime of Saddam Hussein are subject to threats and violence, the Palestinians being on example. 19. With deepening links between the Islamic Republic of Iran and the current Shia-led government coalition in Iraq as well as links between the Iranian government and Shia-based militias, there is a growing concern that the safety of the ex-PMOI refugees is increasingly at risk. In a meeting with UNHCR in Jordan in August 2006, the Iraqi authorities stated their intention to expel PMOI/NLA and former PMOI/NLA members from Iraq within six months. In December 2007 UNHCR was informed that in recent months, threats had been made against the residents of Camp Al-Ashraf... While these credible threats have not been directed towards the refugees at the ARC, but rather at those being maintained at camp Al-Ashraf, UNHCR considers the refugees at the ARC to be in similar danger given their shared past affiliation with the PMOI/NLA. ... 23. Given the changes in bilateral relations between governments of Iraq and Iran noted above, as well as the perceived affiliation of ex-PMOI members with the former regime, local integration in Iraq, the country of asylum, is not a feasible durable solution for these refugees. This applies equally to the Northern Kurdish governorates (KRG). KRG also holds a hostile view towards former PMOI/NLA members given the group’s perceived connections to the former regime and refused to consider further UNHCR’s relocation request. ... 24. UNHCR currently does not facilitate or promote voluntary repatriation of refugees from Iraq to Iran. In the past International Committee of Red Cross (“ICRC”) facilitated with limited logistic support the voluntary repatriation to Iran of some 200 PMOI/NLA members from camp Al-Ashraf who transited through the ARC. Very little independent information is available as to what happened to these individuals, as neither ICRC nor UNHCR is able to monitor the situation of returnees. UNHCR received, however, credible reports that some of the returnees were forced/“invited” to make public confessions and accusations against the PMOI/NLA on television after their return. An organisation of victims of the PMOI composed of persons presented as former PMOI members (including returnees) called Nejat has been reporting to UNHCR that returnees did not face any problem upon return to Iran. None of these returnees either from Camp Al-Ashraf or from the ARC has approached any UNHCR offices. The Iranian authorities continue to designate in the media the PMOI members as “Monafeqin” (i.e. the “Hypocrites”). 25. Reportedly, at one point in time Iran was prepared to accept the return of PMOI members from Iraq, with the exception of some 50 high profile members, if they expressed regrets for their past acts. This promise of amnesty, however, has not been officially reiterated by President Ahmadinajad. In 2004, in a letter from UNHCR to the Government of the Islamic Republic of Iran, UNHCR asked the Iranian authorities to confirm this verbally-declared amnesty as well as to provide unhindered and direct access by UNHCR to returnees. No reply was ever received. UNHCR has reiterated this request without success to the Government of Iran on various occasions in 2006, 2007 and most recently on 24 January 2008. Despite separation from family members remaining in Iran and years of limited freedom of movement in the ARC, the vast majority of former PMOI/NLA members preferred to remain at the ARC in Iraq, supervised by Multinational Forces – Iraq (“MNF-I”), than return to Iran. Recently, some have risked travelling to Northern Iraq or Turkey so as to get out of the ARC and seek asylum elsewhere. Some of those who tried to go to Turkey have been forcibly returned to Iraq. ... 31. Since November 2007, the US military has been facilitating ex-PMOI refugees to depart the ARC. Most of these refugees travelled to Northern Iraq, while some attempted to enter Turkey with one way laissez passez issued by Iraqi authorities with the assistance of the US military. Some of these refugees were also in possession of letters signed by a US Army Colonel, stating that: “Mr. or Mrs. ... will be travelling out of the country with a Government of Iraq issued Laissez Passez and is authorised to do so. It is his/her intent to obtain a visa at the border and cross into Turkey. This action has been approved by MNF-I and the US Embassy Baghdad, in conjunction with the Government of Iraq.” 32. UNHCR does not support the issuance of these documents and is concerned that refugees leaving the ARC based on inaccurate information that they will be accommodated by UNHCR in northern Iraq or that they will be able to acquire visas to and enter Turkey. This is not the case. Refugees who leave ARC are at risk of being stranded in northern Iraq or subject to detention and deportation from another country, most notably Turkey. More than 35 ex-PMOI refugees have been detained in Turkey after leaving the ARC and entering Turkey illegally. 19 of them were deported to northern Iraq where many were detained in Mosul. 10 remain in detention in Turkey in precarious circumstances. Some former refugees are reportedly missing and UNHCR fears that they may have been deported to their country of origin. Another refugee from the ARC who arrived illegally to Germany has been allowed by a court decision to enter the country and to be protected against refoulement. ... 34. On 19 January 2008 Iran and Turkey signed a memorandum of understanding to enhance security cooperation and joint efforts to officially oppose drug trafficking and terrorism. UNHCR is concerned that such an agreement could be used to refoule former ARC refugees stranded in detention in Turkey or at its borders. ...” 47. On 25 April 2008 the UNHCR issued the following statement: “UNHCR deplores refugee expulsion by Turkey which resulted in four deaths GENEVA - Four men, including an Iranian refugee, drowned after a group of 18 people were forced to cross a fast-flowing river by the Turkish police at Turkey’s south-eastern border with Iraq, witnesses have told the UN refugee agency. The incident took place on Wednesday 23 April at an unpatrolled stretch of the border, near the Habur (Silopi) official border crossing in Sirnak province in south-eastern Turkey. According to eyewitnesses, the Turkish authorities had earlier attempted to forcibly deport 60 people of various nationalities to Iraq through the official border crossing. The Iraqi border authorities allowed 42 Iraqis to enter the country, but refused to admit 18 Iranian and Syrian nationals. The Turkish police then took the 18, which included five Iranian refugees recognised by UNHCR, to a place where a river separates the two countries, and forced them to swim across. According to the witnesses interviewed by UNHCR, four persons, including a refugee from Iran, were swept away by the strong river current and drowned. Their bodies could not be recovered. UNHCR is in contact with the surviving refugees through its office in Erbil, in northern Iraq. They are deeply traumatized by the experience, UNHCR staff reported. UNHCR had sent previous communications to the Turkish government requesting that the five Iranian refugees, who had all been detained after attempting to cross into Greece in an irregular manner, not be deported. Despite UNHCR’s requests, the refugees were put in a bus, together with other persons to be deported, and taken on a 23hour trip to the Iraqi border last Tuesday. UNHCR had expressed in a number of communications sent to the Government of Turkey that it did not consider Iraq a safe country of asylum for these refugees. UNHCR is seeking clarification from the Government of Turkey on the circumstances surrounding the forced expulsion of the refugees and the tragic loss of life.” 48. In its Country of Origin Information Report on Iran of 21 April 2009, the United Kingdom Border Agency noted, inter alia, the following: “...Human Rights Watch, on 27 February 2006, reported that: ‘Hojat Zamani, a member of the opposition Mojahedin Khalq Organization outlawed in Iran, was executed on February 7 at Karaj’s Gohardasht prison, Human Rights Watch said today, after a trial that did not meet international standards.’ Amnesty International, in a public statement dated 27 February 2006, said: ‘Executions in Iran continue at an alarming rate. Amnesty International recorded 94 executions in 2005, although the true figure is likely to be much higher. So far in 2006, it has recorded as many as 28 executions. Most of the victims were sentenced for crimes such as murder but one of those recently executed was a political prisoner, Hojjat Zamani, a member of the People’s Mojahedin Organization of Iran (PMOI), who was forcibly returned to Iran from Turkey in 2003 and sentenced to death in 2004 after conviction [for] involvement in a bomb explosion in Tehran in 1988 which killed 3 people (see Urgent Actions AI Index EUR 44/025/2003, 5 November 2003 and MDE 13/032/2004). He was taken from his cell in Gohar Dasht prison and executed on 7 February 2006, though his execution was officially confirmed by Iranian officials only on 21 February. Hojjat Zamani’s execution has fuelled fears that other political prisoners may be at risk of imminent execution. According to unconfirmed reports that have been circulating since early February, a number of political and other prisoners who are under sentence of death have been told by prison officials that they would be executed if Iran should be referred to the UN Security Council over the resumption of its nuclear programme... These [prisoners] are said to have included other members of the PMOI, which is an illegal organization in Iran. The National Council of Resistance of Iran, of which the PMOI is a member, was the source of evidence in 2002 revealing Iran’s nuclear programme to the outside world.’ ... According to the Danish FFM of January 2005: ‘UNHCR in Teheran reported that 58 members of the Iranian opposition organisation MKO had voluntarily returned to Iran. Their return was organised by ICRC. UNHCR had no information indicating that these persons had been legally persecuted. UNHCR in Ankara reported that non-profiled members of Mujaheddin Khalq had returned to Iran but had no information indicating that these persons had been persecuted or legally persecuted. The Organisation for defending Victims of Violence’s international department reported that many members of Mujaheddin Khalq had returned to Iran without experiencing problems of a penal character. IOM in Teheran confirmed that members of Mujaheddin Khalq had returned to Iran, mainly from Iraq. The source was not aware that they had been subjected to any reprisals. IOM had monitored the return of a number of failed asylum seekers from the UK. According to the source, none had been persecuted.’ ... The USSD report for 2007 states that: ‘There were reports that the government held some persons in prison for years charged with sympathizing with outlawed groups, such as the terrorist organization, the Mujahedin-e-Khalq (MEK)... The government offered amnesty to rank-and-file members of the Iranian terrorist organization, MEK, residing outside the country. Subsequently, the ICRC assisted with voluntarily repatriating at least 12 MEK affiliates in Iraq under MNF-I protective supervision during the year.’ ...” 49. In two press releases issued on 7 September 2006 and 20 March 2009, Amnesty International reported that a number of political prisoners in Iran, including two PMOI members, namely Valiollah Feyz Mahdavi and Abdolreza Rajabi, had died in custody in suspicious circumstances and that no effective investigation had been conducted into their death. 50. In December 2008 and March 2009 the Iraqi National Security Advisor and Iraqi government spokesman respectively made statements, according to which the Iraqi government was intending to deport the PMOI members in Al-Ashraf Camp to their country of origin or to a third country, and asked the international community to find places for them other than Iraq. Subsequently, on 14 April 2009 the Chair of the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe (PACE) issued a press statement and urged the Iraqi government not to forcibly return to Iran the residents of Al-Ashraf Camp who would risk persecution there, not to expel these persons to another country that might send them to Iran afterwards, nor to forcibly displace them inside Iraq. On 24 April 2009 the European Parliament adopted a resolution on the humanitarian situation of Al-Ashraf Camp residents which reads, in so far as relevant, as follows: “The European Parliament ... B. - whereas in 2003 US forces in Iraq disarmed Camp Ashraf’s residents and provided them with protection, those residents having been designated "protected persons" under the Geneva Conventions, ... D. - whereas following the conclusion of the US/Iraqi Status of Forces Agreement, control of Camp Ashraf was transferred to the Iraqi security forces as of 1 January 2009, E. - whereas, according to recent statements reportedly made by the Iraqi National Security Advisor, the authorities intend gradually to make the continued presence of the Camp Ashraf residents "intolerable", and whereas he reportedly also referred to their expulsion/extradition and/or their forcible displacement inside Iraq, 1. - Urges the Iraqi Prime Minister to ensure that no action is taken by the Iraqi authorities which violates the human rights of the Camp Ashraf residents and to clarify the Iraqi government’s intentions towards them; calls on the Iraqi authorities to protect the lives and the physical and moral integrity of the Camp Ashraf residents and to treat them in accordance with obligations under the Geneva Conventions, in particular by refraining from forcibly displacing, deporting, expelling or repatriating them in violation of the principle of non-refoulement; 2. - Respecting the individual wishes of anyone living in Camp Ashraf as regards his or her future, considers that those living in Camp Ashraf and other Iranian nationals who currently reside in Iraq having left Iran for political reasons could be at risk of serious human rights violations if they were to be returned involuntarily to Iran, and insists that no person should be returned, either directly or via a third country, to a situation where he or she would be at risk of torture or other serious human rights abuses; ...” Meanwhile, on 26 January 2009 the Council of the European Union decided to exclude the PMOI from the list of individuals, groups and entities involved in terrorist acts, in accordance with the judgment of the European Court of Justice dated 4 December 2008 in Case T-284/08. 51. On 7 February 2007 the United Nations Working Group on Arbitrary Detention issued a report on its Mmission to Turkey (Report of the Working Group on Arbitrary Detention on its Mission to Turkey, Report of 7 February 2007, A/HRC/4/40/Add.5). Regarding the detention of foreigners awaiting expulsion in Turkey, the UN Working Group noted the following: “... 86. Foreigners who are in Turkey without the documents necessary to allow them to stay lawfully in the country can be, and are in great numbers, arrested by the police or the Gendarmerie. After a brief period in police custody they are taken to a so-called “guest house” for foreigners run by the Ministry of the Interior, where they are - in spite of the welcoming name of these institutions - to all effect locked up awaiting expulsion. However, no written decision to this effect is issued to them. 87. Article 23 of the Law on the Residence of Foreign Citizens, providing that foreigners who have been issued an expulsion decision but cannot be immediately expelled, shall reside in a location assigned to them by the Ministry of the Interior, does not constitute a sufficient legal basis for this practice. Neither this law, nor any other, provides further details as to the preconditions for, modalities of or maximum duration of assignment to a residence for foreigners awaiting expulsion. As this is not a measure adopted within the criminal process, judges of the peace have no jurisdiction to rule on challenges against such measures. It would appear that administrative tribunals are competent. However, this remedy appears not to be exercised in practice. Challenges to the expulsion decision may have an impact also on the question of detention, but they simply do not constitute the remedy against the fact of deprivation of liberty required by article 9 (4) of ICCPR. 88. It is important to stress that this has nothing to do with the criminal proceedings which can be initiated against a foreigner for illegal entry into Turkey. Such proceedings are not regularly pursued and, in case of a guilty finding, result in a fine, not deprivation of liberty. 89. Another aggravating aspect is that, according to information provided by the police, not only foreigners who are actually the subject of an expulsion decision are assigned to guest houses (i.e. deprived of their liberty), but also so assigned are many who - in the opinion of the police - are likely to receive an unfavourable outcome in expulsion proceedings initiated against them. This practice violates even article 23 of the Law on the Residence of Foreign Citizens. 90. To sum up, there is no remedy for the foreigners awaiting expulsion to challenge their detention, and no control over the detention by a judicial authority. It may be true that in some cases the person to be deported spends only a few days at the guest house. But in others, where there are difficulties obtaining valid travel documents (as appears to be the case for many African migrants), the detention can last months and even more than a year...”
| 1
|
train
|
001-99852
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF VLADIMIR KRIVONOSOV v. RUSSIA
| 4
|
Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13;No violation of Art. 3;No violation of Art. 5-1
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
4. The applicant was born in 1968 and lives in Taganrog, the Rostov Region. 5. On 18 December 1998 the applicant was arrested and allegedly beaten up by the police officers. On the same day he was remanded in custody on suspicion of robbery. 6. On 21 December 1998 the charges were brought against the applicant and he was provided with a legal-aid counsel. 7. On 14 March 2000 the applicant was released on a written undertaking not to leave the town. 8. On 13 June 2000 the Rostov Regional Court convicted the applicant of robbery and imposed a suspended sentence of five years' imprisonment on him. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial. 9. On 14 May 2001 the Rostov Regional Court convicted the applicant of fraud, kidnapping, illegal deprivation of liberty, extortion, burglary and theft and sentenced him to seven years and six months' imprisonment. The applicant was taken straight from the courtroom to the detention unit. 10. On 16 January 2002 the Supreme Court of Russia quashed the judgment of 14 May 2001 on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 11. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”. 12. On 1 July 2002 the Rostov Regional Court extended the applicant's detention until 1 October 2002. “The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes. They have been in custody: ..., [the applicant] – since 18 December 1998, ... The Prosecutor requested that the defendants' detention be extended by 3 months. Having examined the Prosecutor's request, and having heard the parties to the proceedings, the court considers it necessary to extend the defendants' detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences. Under Articles 255 and 256 of the Russian Code of Criminal Procedure, the defendants' detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.” 13. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified. 14. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant's detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the decisions was identical to that applied in the decision of 1 July 2002. 15. The applicant appealed against each of the above-mentioned extension orders of the Supreme Court arguing that they were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above-mentioned decisions on appeal. 16. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant's detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court. 17. On 10 March 2005, that is, after the applicant's conviction by the Regional Court (see paragraph 19 below), the Supreme Court of Russia discontinued the examination of the applicant's appeal because he had been convicted in the meantime by the Regional Court. 18. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over fifty occasions: at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; owing to the illness of the representatives and their failure to appear before the court; and owing to the illness of the co-defendants or following their complaints concerning their health. On one occasion the hearing was adjourned on account of the failure of the authorities to transport the defendants to the courtroom. 19. On 17 May 2004 the Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., found the applicant guilty of multiple counts of fraud, kidnapping, illegal deprivation of liberty, extortion, theft and burglary and sentenced him to six years' imprisonment. 20. The applicant lodged an appeal. He claimed, inter alia, that the lay judges had sat on the bench unlawfully. The law had been changed and after 1 January 2004 lay judges were no longer permitted to take part in the administration of justice. 21. On 10 March 2005 the Supreme Court of Russia, sitting as a bench of three judges, reduced the applicant's sentence to five years' imprisonment and upheld the rest of the judgment on appeal. One of the judges of the Supreme Court had previously examined the applicant's case on appeal on 2 November 2000 (see paragraph 8 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant's detention until 26 September 2003 (see paragraphs 14-15 above). One other judge had previously examined the applicant's case on appeal on 16 January 2002 (see paragraph 10 above). As to the applicant's allegation that the composition of the tribunal was unlawful, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial. 22. From 25 May to 8 December 2001 and from 11 February 2002 to 23 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in the following cells: (a) cell no. 21 measuring 54.5 square metres and designed to accommodate 13-16 detainees; (b) cell no. 46 measuring 59.6 square metres and designed to accommodate 13-16 detainees; (c) cell no. 48 measuring 54.2 square metres and designed to accommodate 10-15 detainees; (d) cell no. 57 measuring 68.4 square metres and designed to accommodate 16-18 detainees; (e) cell no. 90 measuring 58.2 square metres and designed to accommodate 16-18 detainees; (f) cell no. 92 measuring 46.2 square metres and designed to accommodate 12-14 detainees; (g) cell no. 109 measuring 54.2 square metres and designed to accommodate 11-14 detainees; (h) cell no. 114 measuring 44.5 square metres and designed to accommodate 10-12 detainees; and (i) cell no. 84 (punishment cell) measuring 6.6 square metres and designed for one person. 23. The Government were unable to provide any precise information on the number of persons detained together with the applicant, because the relevant documents had been destroyed following the expiration of the time-limit for storing them. They submitted, however, that the design capacity of the cells had not been exceeded. 24. In each cell the applicant had an individual bed and was provided with bedding (two bed sheets, a pillowslip, a blanket, a mattress and a pillow) and tableware (a cup, a spoon and a plate). 25. The dimensions, number and location of the windows in the cells corresponded to the established legal norms and allowed sufficient access of daylight. Until December 2002 the windows were covered with metal screens (жалюзийные решетки) installed to prevent communication between cells. 26. The cells were illuminated with 60-75 watt filament lamps (four lamps per regular cell, one lamp per punishment cell), which were on from 6 a.m. to 10 p.m. At night-time the cells were lit by 60-75 watt security lights with tinted glass shades. 27. All cells were ventilated by a system of exhaust ventilation. Natural ventilation through windows was also available. 28. The cells were equipped with potable water tanks, cupboards for storage of foodstuffs, lavatory pans separated from the main area of the cells by partitions, water taps, dining tables and benches corresponding to the number of detainees, radio receivers, electric plugs and ventilation equipment. 29. The food was served three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility. 30. The applicant was allowed a daily one-hour outside walk in a specially equipped exercise yard. 31. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 7 November 2008 and statements by prison wardens (although not dated). They also submitted documents attesting to the destruction of registration logs in respect of the cells in IZ-61/1 (журналы покамерного размещения) for the years 20012003 following the expiry of the three-year time-limit for storing them. 32. The applicant claimed that the number of detainees exceeded the design capacity of the cells by three to five times and that the detainees had to sleep in shifts. 33. Most cells where the applicant was detained were equipped with a small window. Access to daylight was restricted by metal screens and the arrangement of the bunks in two or three tiers. 34. The electric lighting was too dim to enable the inmates to read. 35. The ventilation system did not function most of the time. 36. The bedding was hardly ever changed; no tableware, toilet paper or personal hygiene items were provided to the applicant. 37. The food was scarce and of poor quality. It was always poorly presented. 38. The exercise yards were unequipped and too small to accommodate all the detainees properly. 39. In support of his statements the applicant produced written depositions by four former cellmates who had been detained with him in different cells between 2001 and 2005. In particular, Mr B. stated that he had been detained with the applicant in cell no. 90. The population of the cell had exceeded its design capacity by three to five times. Mr G. stated that he had been detained with the applicant in cell no. 109, which accommodated from 22 to 46 detainees at any one time. Mr F. stated that he had been detained with the applicant in cell no. 109 in a later period. The cell used to accommodate up to 105 detainees. Finally, Mr V. submitted that he had been detained with the applicant in cell no. 114, which accommodated from 25 to 40 detainees. All of the above-mentioned witnesses testified that they and the other detainees had slept in shifts. They further testified to the appalling sanitary conditions in the cells, poor access to daylight, inadequate electric lighting, absence of natural ventilation and malfunctioning of the artificial ventilation system. The applicant further submitted a photograph of cell no. 114, taken on an unspecified date in 2004, in support of the above-mentioned statements. 40. The Government submitted that the detention unit (конвойное помещение) of the Rostov Regional Court is situated in the semi-basement of the premises. It has eight individual cells measuring 1-1.5 square metres and three collective cells measuring six, ten and twelve square metres and designed for two, six and eight detainees respectively. The detention unit is equipped with two lavatory pans and wash stands (one for detainees and one for those escorting them). All cells are equipped with benches, artificial ventilation and central heating. The cells are illuminated with filament lamps. The detainees are provided with dry rations (сухой паек) when taken to the courthouse. They receive hot food in accordance with the schedule before their departure from, and after their return to, the detention facility. 41. The Government supported their submissions with the results of an inspection of the technical equipment of the premises of the Rostov Regional Court of 21 March 2008, a certificate issued by the director of IZ61/1 on 7 November 2008, the results of an inspection of the detention unit of the Rostov Regional Court of 12 November 2008 and recent photographs of the inspected premises (photocopies). 42. The applicant submitted that between 2001 and 2004 he had been transported between the Rostov Regional Court and the detention facility on over one hundred and seventy-five occasions. 43. The journey to and from the courthouse took several hours. 44. At the courthouse the applicant was detained in a small windowless cell without ventilation or heating. The cell was not equipped with a lavatory or a wash stand. 45. No food was provided to the applicant at the courthouse. 46. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 47. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP). 48. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6). 49. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 50. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 51. The Codes distinguished between two types of detention: the first being “pending the investigation”, that is, while a competent agency – the police or a prosecutor's office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 52. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 53. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 54. Access to the case-file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 55. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 56. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”). 57. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence. 58. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 59. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 66 below) (Article 331 in fine). 60. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10). 61. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 62. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 63. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 66 below). 64. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 65. The duration of the trial is not limited. 66. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374). 67. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15). 68. The new CCrP does not provide for the participation of lay judges in the administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 69. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing. 70. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 71. On 4 May 2001 the Ministry of Justice adopted the Rules on food supplies for convicts and persons detained in remand centres. According to Annex no. 3 to the Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons for the duration of their stay in patient care institutions; and convicted juveniles. The Rules were amended in 2004 and repealed in 2005. 72. On 4 February 2004 the Ministry of Justice adopted the Rules on supplies of dry rations, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea and tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration. 73. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 sq. m. It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO no. 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony no. 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private 'because they know that all complaints usually pass through the colony's administration'. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
| 1
|
train
|
001-85629
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
SMITH v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
|
The applicant, Mr Arthur Smith, is a British national who was born in 1940 and lives in Devon. 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 6 September 2000. They had no children from the marriage. On 7 January 2001 the applicant applied for widows’ benefits. On 1 February 2001 he was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0
|
train
|
001-91927
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF PŁONKA v. POLAND
| 4
|
Violation of Article 6 - Right to a fair trial
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant was born in 1949 and lives in Sosnowiec, Poland. 6. On 8 April 1999 the applicant was arrested on suspicion of homicide. She was first interviewed by a police officer. On 9 April 1999 she was charged with murdering E.L on 8 April 1999. On 9 and 10 April 1999 she was questioned by the Sosnowiec District Prosecutor. During the questioning she stated that she had been having alcohol problems for the last 20 years. She and E.L., a former work colleague, used to drink together. On 7 April 1999 they had drunk more than half a litre of vodka and some wine. She also stated that she did not remember much of what had happened. She further confessed to killing E.L. Nevertheless, she stressed that she had not meant to kill the victim, but he had made her very angry and she had stabbed him with scissors. 7. During the arrest and subsequent questioning by the police and the prosecution authorities the applicant was not assisted by a lawyer. On 9 April 1999 the applicant signed the relevant form acknowledging that she had been informed of her rights, including the right to be assisted by a lawyer and the right to refuse to testify. 8. On 19 April 1999 the prosecutor ordered an expert report on the applicant’s mental health at the time when the crime of which she was suspected was committed. The report was submitted on 26 April 1999. The applicant was considered to be criminally responsible. 9. On 21 April 1999 the applicant asked to be released from detention. The District Prosecutor refused her motion on 11 May 1999. This decision was upheld by the Regional Prosecutor on 7 June 1999. 10. On 23 April 1999 the Regional Court appointed a legal-aid-lawyer for the applicant. On 5 May 1999 the applicant appointed a lawyer of her own choice. 11. On 28 June 1999 the Sosnowiec District Prosecutor filed a bill of indictment with the Katowice Regional Court (Sąd Okręgowy). The applicant was indicted on charges of murder. 12. Throughout the trial the applicant maintained that she suffered from alcoholism. She retracted her confession made during police custody, alleging that she had been questioned under duress and forced by the police officers to make self-incriminating statements. 13. On 30 June 1999 the Katowice Regional Court, having regard to the fact that the applicant was represented by a lawyer of her own choice, decided to withdraw the services of the legal-aid lawyer. 14. The trial ended on 24 February 2000. The applicant was convicted as charged and sentenced to 11 years’ imprisonment. The court considered that the applicant’s testimony during the trial had not been credible and had merely been her line of defence. The conviction was based on the applicant’s statements made during the initial phase of the investigation and on evidence given by several witnesses. 15. On 11 April 2000 the applicant’s lawyer filed an appeal against the judgment. He stressed, in particular, that there had been a violation of the applicant’s right to defend herself in view of the deficiencies in the preliminary investigation. 16. On 25 May 2000 the Katowice Court of Appeal (Sąd Apelacyjny) upheld the firstinstance judgment. The court held that the applicant’s right to defend herself had not been infringed. It pointed out that as of 23 April 1999 she had been assisted by a lawyer – first an officially appointed lawyer, then a lawyer of her own choice. 17. On 19 July 2000 the applicant’s lawyer filed a cassation appeal with the Supreme Court (Sąd Najwyższy). He maintained that there had been a violation of Article 6 § 3 (c) of the Convention in that the applicant had not been assisted by a lawyer at the preliminary stage of the investigation. He relied on the caselaw of the European Court of Human Rights. 18. On 26 January 2001 the Supreme Court dismissed the applicant’s cassation appeal. That decision did not contain any reasons. 19. Pursuant to Article 78 § 1 of the 1998 Code of Criminal Procedure, an accused who had proved that he or she could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family’s standard of living”) could ask the trial court to appoint him a defence counsel. 20. Article 80 of the Code lays down the principle known as “compulsory assistance of an advocate” (przymus adwokacki). That Article provides, in so far as relevant: “An accused must have an officially appointed lawyer when a Regional Court is competent to deal with his case as a court of first instance, a crime is involved within the meaning of the Criminal Code, or the individual is remanded in custody. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.” This provision does not apply to the investigative stage of the proceedings but only after the case is sent for trial, as was expressly confirmed by the Supreme Court in its resolution of 20 January 2004 (III KK 226/03).
| 1
|
train
|
001-60720
|
ENG
|
AUT
|
CHAMBER
| 2,002
|
CASE OF DEMIR v. AUSTRIA
| 3
|
Violation of Art. 6-2;Costs and expenses partial award
|
Nicolas Bratza
|
9. The applicant was born in 1959 and lives in Vienna. 10. On 29 November 1992 the applicant was arrested on suspicion of attempted blackmail and unlawful possession of a firearm. Subsequently, he was taken into detention on remand. He was suspected of having tried to blackmail Turkish restaurant owners in that he together with several accomplices, all being members of a Kurdish association, came to their restaurants and threatened them in order to obtain money for this association. Further, the applicant was suspected of unlawful possession of a firearm, which had been found in a car he used to drive. In these and the following proceedings the applicant was represented by counsel. On 3 August 1993 the applicant was released. 11. On 31 March 1995 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), after its first judgment had been quashed on appeal, acquitted the applicant and his co-accused giving them the benefit of the doubt. The prosecution did not appeal against the acquittal. Therefore, in accordance with the relevant procedural provisions, it was not necessary to serve a written version of the judgment on the applicant, but it was sufficient to include its operative part without any reasons in the minutes of the hearing (so-called abridged version of minutes and judgment – Protokollsvermerk und gekürzte Urteilsausfertigung). 12. On 16 October 1995 the Vienna Regional Criminal Court, after a first decision on the applicant’s compensation claim for detention on remand under section 2 (1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”) had been quashed on appeal, again dismissed the applicant’s compensation claim. 13. On 26 February 1996 the Vienna Court of Appeal (Oberlandes-gericht), upon the applicant’s appeal, quashed the Regional Court’s decision on the ground that it did not contain sufficient reasons. As to the applicant’s complaint that the decision violated the presumption of innocence it noted that the European Court of Human Rights in the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A) had not challenged the conformity with Article 6 § 2 of the Convention of section 2 (1)(b) of the 1969 Act. Following an acquittal it was still admissible to examine the question whether the suspicion had been dispelled as long as the assessment did not go beyond the reasons given for the acquittal. It, therefore, instructed the Regional Court to state the reasons for the acquittal of the applicant, which were not included in the abridged version of minutes and judgment of 31 March 1995. 14. Thereupon, the Regional Court supplemented the minutes accordingly, stating that the evidence before it did not carry a finding of guilt. As to the charge of attempted blackmail it noted that in the second set of proceedings the witnesses, namely the restaurant owners concerned, had given a weakened version of their previous statements. They said in particular that the applicant and his accomplices had not directly menaced them and that they had only been frightened as the applicant and his co-accused clearly asked for money and announced that they would return. Although the witnesses now tried to describe the incidents at issue as favourably to the accused as possible and although their statements were insufficient for a conviction, they had disproved the defence of the applicant who had claimed that he had only come to the respective restaurants to distribute posters without ever having requested donations. As to the second charge the court found that the evidentiary basis was sufficient to prove only that the applicant had access to the car in which the firearm had been found. 15. On 25 March 1996, the Vienna Regional Criminal Court again dismissed the applicant’s compensation claim under section 2 (1)(b) of the 1969 Act. Its main line of argument ran as follows: “For his part, the applicant stated that he had not collected any donations at the material time. However, in the light of the witnesses’ testimony that point of his defence was revealed to be untrue. It follows that he lied in order to conceal something. Even if, in view of the very much weakened witness evidence, a conviction was no longer possible as the principle of the ‘benefit of the doubt’ had to be applied in the accused’s favour, it cannot be said that the suspicion attaching to the applicant and the other defendants acquitted with him was entirely dispelled in the second set of proceedings. As stated in the full reasoning of the decision [of 31 March 1995], the witnesses gave the impression that they now wished to exonerate the accused – particularly the applicant – but on the basis of their testimony the possibility that they felt threatened when the accused demanded money from them cannot be excluded.” 16. On 10 April 1996 the applicant appealed against this decision. He contested, in particular, that the suspicion against him had not been dissipated. 17. On 30 August 1996 the Vienna Court of Appeal, sitting in camera, as in all the previous proceedings, dismissed the applicant’s appeal. It found in essence that the Regional Court’s decision was duly based on the reasons given for the acquittal: “As clearly emerges from the full reasoning of its judgment, the trial court acquitted the applicant solely because in the second set of proceedings the restaurant owners departed from their previous depositions, which had strongly incriminated him, in such a manner that the requisite standard of proof of guilt could not be met. However, in its reasoning, the trial court makes clear reference to a number of circumstances duly supported by the evidence in the case file – which meant that the suspicion attaching to the applicant had not been entirely dispelled. In particular the judge states that during the trial he formed the personal impression that, in view of the specific manner in which the applicant and his fellows had acted, the prosecution witnesses had good, objectively-founded reason to fear reprisals in the form of violent attacks if they did not make the donations demanded.” 18. This decision was served on the applicant’s counsel on 11 September 1996. 19. Following communication of the present application to the respondent Government, the Procurator General filed a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof). 20. On 7 June 2000 the Supreme Court found that the courts’ failure to hold a public hearing and to pronounce their decisions publicly violated section 6 §§ 3 and 4 of the 1969 Act taken in conjunction with Article 6 § 1 of the Convention. It, therefore, quashed the Vienna Regional Criminal Court’s decision of 25 March 1996 as well as the decision of 30 August 1996 by the Vienna Court of Appeal and remitted the case to the Regional Court. 21. On 31 July 2000 the Vienna Regional Criminal Court, after having held a public hearing, again dismissed the applicant’s compensation claim. At the close of the hearing the judge pronounced the decision orally. In the written version of the decision the court used exactly the same wording for a reasoning as it had already used in its previous decision of 25 March 1996 (see above). 22. On 15 September 2000 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal. It confirmed the Regional Court’s view that the suspicion against the applicant had not been dissipated, using the same reasoning as in it previous decision of 30 August 1996 (see above). 23. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows: “(1) A right to compensation arises: ... (b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...” “(2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions for compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3. ... (4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ...” 24. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself did not violate Article 6 § 2 of the Convention which, under Austrian law, had the force of constitutional law. In the light of the Sekanina v. Austria judgment (of 25 August 1993, Series A no. 266-A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1)(b) of the 1969 Act in order to clarify the law.
| 1
|
train
|
001-103387
|
ENG
|
RUS
|
CHAMBER
| 2,011
|
CASE OF NASUKHANOVY v. RUSSIA
| 4
|
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
5. The first applicant was born in 1953, the second applicant was born in 1958 and the third applicant was born in 1983. They live in the village of Starye Atagi, the Groznenskiy District, in the Chechen Republic. 6. The first and second applicants are spouses and the parents of Mr Movsar Nasukhanov, born in 1980, Mr Movladi Nasukhanov, born in 1981, and the third applicant. 7. Between 14 and 18 February 2002 the Russian federal military carried out a special “sweeping” operation in the village of Starye Atagi. 8. At about 9.30 a.m. on 14 February 2002 an armed clash commenced between a group of insurgents and the Russian servicemen. The insurgents hid inside a house at Argunskaya Street located in the vicinity of the applicants' family home and fired at the military. At some point Russian servicemen killed the insurgents and started checking other houses in the area. 9. At that time the applicants, Movsar and Movladi Nasukhanov and the first applicant's two daughters were inside their house. At some point a group of servicemen wearing blue camouflage uniforms and masks arrived at the applicants' house in armoured personnel carriers (“APCs”) and entered it. The first applicant believed that the men belonged to the State Intelligence Department (“GRU”). The servicemen in blue uniforms checked the Nasukhanovs' identity papers, asked why they had been hiding insurgents and left. 10. Another group of armed men who had arrived in UAZ vehicles entered the applicants' house. Those men had badges with a “B” letter and an eagle pinned to sleeves of their camouflage uniforms. The first applicant inferred that they were members of the Pennant unit (подразделение «Вымпел»). They ordered the male members of the Nasukhanov family to lie down on the floor, lined up the women next to a wall, checked the identity papers and left. 11. A few moments later a group of armed and masked men in yellow camouflage uniforms arrived at the applicants' house in UAZ vehicles with illegible registration plates. The first applicant peeked out of the window and saw a motorcade of military vehicles and several APCs parked outside his house. The servicemen in the yellow uniforms checked the identity papers of the first applicant's sons and asked them if they knew any insurgents. The young men replied in the negative. The servicemen in yellow uniforms said that it was necessary to run a check on them, and took the third applicant and Movsar and Movladi Nasukhanov away. 12. Shortly after the arrest of their sons the first and second applicants learned that the Russian military had established a filtration point near a poultry-house and a mill in Starye Atagi. Some 500 persons were being kept at the filtration point. 13. On the day following the arrest the second applicant went to the poultry-house. Relatives of other detained persons had gathered near the building to wait for news of their family members. 14. The servicemen started releasing the detainees. Some of them told the second applicant that her three sons were being kept inside the poultryhouse. The second applicant waited for her sons' release for the next three days. 15. On 16 February 2002 the third applicant was released. He had been severely beaten by the servicemen and could not walk, so he had to be carried home. His body was bruised. Once at home, the third applicant said that for three days the servicemen had questioned and beaten him. Before the release they had made him sign a declaration stating that he had no complaints. The third applicant had not seen his brothers after the arrest but knew that they had been transferred to the mill where the headquarters of the federal military was located. 16. On 19 February 2002 the special “sweeping” operation ended. 17. On 20 February 2002 the first and second applicants went to the village of Mesker-Yurt of the Shali District and examined two dead bodies, which had been burned from head to waist. The first and second applicants recognised their sons' shoes and trousers and identified the dead as Movsar and Movladi Nasukhanov. On the same day the first and second applicants took the bodies home. 18. On 18 February 2002 the Shali district temporary department of the interior (“the VOVD”) received a report that four men had been killed by servicemen of military unit no. 3179 in crossfire on the outskirts of MeskerYurt. Upon inspection of the scene of the incident four charred corpses and two AK-74 machine guns were discovered in the basement of a destroyed house. 19. The first applicant did not apply to a prosecutor's office after the discovery of Movsar and Movladi Nasukhanov's dead bodies as he feared for the safety of the third applicant. 20. On 18 February 2002 the Shali district department of the interior (“the ROVD”) received a report that four charred male corpses had been discovered in the basement of a house on the outskirts of Mesker-Yurt. Later two of those bodies were identified as Movsar and Movladi Nasukhanov. 21. On 18 February 2002 the prosecutor's office of the Shali District (“the district prosecutor's office”) instituted an investigation into the killing of Movsar and Movladi Nasukhanov under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case was assigned the number 59054. 22. On 25 February 2003 the district prosecutor's office issued a report on the investigation, stating the following: “At about 1 p.m. on 18 February 2002 the Shali district department of the interior received a report that four charred male corpses had been found in the basement of a residential house on the outskirts of the village of Mesker-Yurt. Later the three bodies were identified as villagers of Starye Atagi, namely, Movsar Nasukhanov, born in 1980, Movladi Nasukhanov, born in 1981, and Ruslan Nasukhanov, born in 1963. An investigation into this matter was opened by the Shali district prosecutor's office in criminal case no. 59054 under Article 105 § 2 of the Russian Criminal Code on 18 February 2002.” 23. On 5 March 2003 the head of the local administration of Starye Atagi described the circumstances of the Nasukhanov brothers' arrest and the discovery of their dead bodies to the district prosecutor's office. He stated that on 14 February 2002 the servicemen of the United Group Alignment had carried out a special operation to arrest insurgents, that the latter had opened fire and then had been killed and that Movsar and Movladi Nasukhanov had been taken away by the servicemen and then killed. The head of the local administration also mentioned that Movsar and Movladi Nasukhanov had not participated in illegal armed groups. 24. On 15 December 2003 the first applicant complained to the prosecutor's office of the Chechen Republic about the ineffectiveness of the investigation in case no. 59054. 25. On 4 January 2004 the prosecutor's office of the Chechen Republic informed the applicants that on an unspecified date the investigation had been resumed and was pending before the district prosecutor's office. 26. On 10 February 2004 the first applicant was summoned to the district prosecutor's office. An investigator told him that the servicemen had made a deposition explaining that his sons had been killed as they had been inside a house from which insurgents had fired at military vehicles. However, according to a statement by the owners of that house, the servicemen had killed the Nasukhanov brothers, brought their bodies to the village's outskirts and set the house on fire. The first applicant read that statement, but was not allowed to make a copy of it. 27. On 15 February 2004 the district prosecutor's office suspended the investigation in case no. 59054 for failure to identify those responsible. 28. On 24 July 2004 the military prosecutor's office of the United Group Alignment forwarded the first applicant's complaint to the prosecutor's office of the Chechen Republic stating that an investigation into the killing of Movsar and Movladi Nasukhanov was not pending before them. 29. On 2 November 2004 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office and ordered that the investigation be carried out more vigorously. 30. On 29 April 2005 the acting head of the department for supervision on criminal investigations of the prosecutor's office of the Chechen Republic informed the first applicant of the following: “The prosecutor's office of the Chechen Republic studied the criminal case materials, quashed the decision of the investigator of the Shali district prosecutor's office on suspension [of the investigation] and resumed the investigation. You should address all further queries related to the investigation of this case to the Shali district prosecutor's office”. 31. On 15 February 2006 the SRJI requested an update on the progress of case no. 59054 from the district prosecutor's office. 32. On 3 March 2006 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation in case no. 59054 had been suspended on 15 February 2004 for failure to identify those responsible and noted that the first applicant had the right to study non-classified documents from the case file on the district prosecutor's office's premises. 33. On 16 November 2006 the district prosecutor's office received from the SRJI a request for access to the entire investigation file in case no. 59054. 34. On 17 November 2006 the request was dismissed since pursuant to domestic laws a victim had no right to study a case file in its entirety prior to the completion of the investigation. 35. On 19 June 2009 the applicants were informed that the investigation had been resumed. 36. On 18 February 2002 the district prosecutor's office instituted an investigation in case no. 59054 into the killings of the four men found dead in Mesker-Yurt under Article 105 § 2 of the Russian Criminal Code (aggravated murder). 37. The investigators inspected the scene of incident and found inside a half-demolished house four seriously burned dead bodies showing signs of a violent death, two AK-74 machine guns with spent cartridges and a MOH50 mine. Next to the house they found forty-nine shells for 7.62 calibre bullets and two shells for 9 mm calibre bullets. 38. On 18 February 2002 the bodies were transferred to the deputy head of the Mesker-Yurt local administration, Mr M. 39. On 18 February 2002 the investigators questioned a serviceman from military unit no. 3179, Mr I., who stated the following. On 18 February 2002 a group of servicemen had been travelling past Mesker-Yurt when they were fired at from machine guns. Their senior officer had decided to block off the area from which the firing had come; the servicemen had fired back. Then a storm unit had moved forward and found four charred corpses in the ruins, two machine guns and a mine. Some servicemen had stayed at the scene of incident, and others had gone to Mesker-Yurt to bring in investigators. 40. On the same date Mr M. was questioned and stated that on 18 February 2002 he had heard sounds of an explosion and machine-gun fire. Then some servicemen had come to his office and told him that he had been called out by the military commander of the Shali District. They had arrived at the half-demolished house owned by Mr Kh. The servicemen had told Mr M. that they had discovered four charred corpses. He had not seen the bodies himself. 41. On 18 February 2002 an officer of military unit no. 3179 (his name has not been disclosed) was questioned as a witness and stated the following. On 18 February 2002 his unit had been travelling from Khankala in four armoured personnel carriers and ten lorries after having participated in the special operation carried out there. In the vicinity of Mesker-Yurt their vehicles had been fired at. The officer had ordered the APCs to surround those who had opened fire. Four or five men had run towards a red-brick building. The servicemen had surrounded the building and fired back. At some point the servicemen had sent two missiles from a grenade launcher; the building had been set on fire. The officer's subordinates had taken two machine guns out of the building and left as they had been unable to inspect the scene more closely because of the mines scattered there. The servicemen's actions had been strictly necessary. Other servicemen from the officer's unit were also questioned and made identical depositions. 42. A resident of Mesker-Yurt was questioned and stated that Mr Kh.'s house had been demolished in the course of a special operation on 8 February 2002. 43. On 19 February 2002 the district prosecutor's office instructed the police to find witnesses and identify the deceased, but to no avail. 44. On 26 March 2002 the district prosecutor's office sent a letter to the Groznenskiy district prosecutor's office, which read, in so far as relevant, as follows: “On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to the statements by the servicemen of military unit no. 3179, those men had been killed by them in the course of an armed clash. The Shali district prosecutor's office instituted criminal proceedings in case no. 59054 ... Upon assessment of the results of an inspection of the scene of the incident it is possible to conclude that the corpses had been transferred from another place and set on fire there [in the half-demolished house in Mesker-Yurt].” 45. On an unspecified date in 2002 (the exact date on the copy of the document at the Court's disposal is illegible) the district prosecutor's office sent a letter to the VOVD and the ROVD, which read, in so far as relevant, as follows: “On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to statements by the servicemen of military unit no. 3179, they killed the said men in the course of an armed clash. ... There are grounds to assume that the bodies were transferred to the said place in order to stage armed resistance to hide evidence of a murder. Accordingly, I would ask your unit to take the following investigative measures: ... 2. To identify the killed men (they were most probably brought from Starye Atagi, where a special operation had been taking place)...” 46. On 18 April 2002 the district prosecutor's office suspended the investigation. 47. On 17 May 2002 the Groznenskiy district civil registrar's office issued death certificates in respect of Movsar and Movladi Nasukhanov, stating that they both died on 14 February 2002. Gunshot wounds to their bodies and heads were specified as the cause of the death in both cases. 48. In March 2003 ballistic expert examinations of the bullets and shells found at the scene of incident were carried out. They did not match those in the ballistic database of the Chechen Republic. 49. On an unspecified date in August 2003 (the exact date on the copy of the first page of the document at the Court's disposal is illegible) the prosecutor's office of the Chechen Republic quashed the decision on suspension of the proceedings for the reason that “the investigation [had] not actually been carried out, the decision on suspension [had] been taken by an investigator prematurely and unlawfully”. It was noted that the bodies had not been formally identified and that the relatives of the Nasukhanov brothers who had stated that the dead bodies belonged to their family members had not been questioned. Moreover, a post-mortem examination of the bodies had not been ordered and carried out. 50. It appears that at some point the proceedings were resumed. 51. On 20 January 2004 the district prosecutor's office ordered a postmortem examination of the four bodies to be carried out. 52. On 22 January 2004 Mr S.Kh., a resident of Starye Atagi, was questioned as a witness. He stated that in February 2002 there had been an armed clash between the federal troops and insurgents in his village. The federal servicemen had also carried out a special “sweeping” operation, in the course of which his son and the three Nasukhanov brothers and their cousin had been arrested. The detainees had been brought to the mill where the military unit had been stationed. At the request of the local authorities the servicemen had released his son and Vakha Nasukhanov. The two Nasukhanov brothers and their cousin, as well as twelve other residents of Starye Atagi, had not been released and their fate had been unknown. Two or three days later, after the special operation in Mesker-Yurt, Mr S.Kh. had heard that four unidentified dead bodies had been found there. Together with the Nasukhanovs' relatives, Mr S.Kh. had identified three of the bodies as the Nasukhanov brothers and their cousin; the fourth body had not been identified. All the four bodies had been charred and covered in blood but Mr S.Kh. had not seen any firearm wounds on them. 53. On 27 January 2004 the first applicant was granted victim status in case no. 59054 and questioned. He stated that on 14 February 2002 the armed clash between the federal troops and insurgents had commenced in his village. The servicemen had taken away his sons and their cousin, Ruslan Nasukhayev for an identity check. On the evening of 16 February 2002 his son Vakha had been released. On 17 February 2002 he had been told that four dead bodies had been found. On 20 February 2002 the first applicant, together with the second applicant and Mr S.Kh., had seen the burned bodies. The first applicant was only able to identify Movsar and Ruslan by their clothes and shoes. Firearm wounds had been visible on the bodies. 54. On 9 February 2004 the investigators questioned Ms N., a sister of Ruslan Nasukhayev, who stated that her brother and his cousins had been arrested and detained in the mill. Later Vakha had been released but Ruslan, Movladi and Movsar had been found dead. 55. On 11 February 2004 Mr Sh.Kh., a deputy prosecutor of the town of Argun, was questioned as a witness and stated that on 18 February 2002 he had visited the scene of incident together with an investigating team. They had found two machine guns, which had been dirty and had not been used for a while. There had been gunshot wounds on the bodies. In his opinion, the deaths had occurred some five to ten hours before his arrival. 56. On 15 February 2004 the district prosecutor's office suspended the investigation for failure to identify those responsible. 57. On 9 March 2006 the district prosecutor's office received a letter from the SRJI; they replied to it on 10 March 2006. 58. On 16 November 2006 a lawyer requested the district prosecutor's office for access to the investigation file. On 17 November 2006 the request was dismissed. 59. In the Government's submission, after 15 February 2004 the investigation remained suspended. No decisions to resume or suspend the investigation were taken on 29 April 2005 and 17 November 2006. 60. On 18 June 2009 the investigating unit of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) resumed the investigation in case no. 59054. 61. On 1 July 2009 the investigating unit ordered an investigating group to be set up with the participation of civilian and military prosecutors to deal with case no. 59094. The decision read, in so far as relevant, as follows: “At about 9.30 a.m. on 14 February 2002 in the village of Starye Atagi there was a skirmish between unidentified military servicemen and unidentified members of illegal armed groups. After the skirmish the unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the house at 34 Nuradilov Street. At about 12 noon on 18 February 2002 (the exact time has not been established by the investigation) the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, as well as that of an unidentified man, were found inside a partially constructed house on the north-east outskirts of the village of Mesker-Yurt. ... Having studied the case materials, [the investigators] established that sufficient grounds existed to assume that the crime had been committed with the participation of the servicemen of the Russian federal armed forces, which, in particular, is proven by the fact of the skirmish between the servicemen of military unit no. 3179 and unidentified persons.” 62. On 9 July 2009 an official of the investigating unit requested his hierarchical superiors to extend the term of the investigation in case no. 59054. The request read, in so far as relevant, as follows: “Between 12 and 19 February 2002 in the village of Starye Atagi of the Groznenskiy District unidentified military servicemen and officers of law-enforcement agencies [who were] using APCs, UAZ and Ural vehicles were carrying out special operations for the identification of members of illegal armed groups. At about 9.30 [a.m.] on 14 February 2002 a shoot out started between unidentified servicemen and unidentified insurgents. After the shooting, unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the houses at 32 and 34 Nuradilov Street. At about 12 noon on 18 February 2002 ... the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, were discovered in ... Mesker-Yurt.” 63. Despite the Court's request to the Government to submit the entire investigation file in case no. 59054, they failed to do so. They submitted what they described as “the main materials of the investigation file”, sixtytwo pages of copies of documents with inconsistent numeration, among which were the following: the decision to open criminal proceedings; the record of the scene of incident inspection; a statement confirming that Mr M. took four bodies away to bury them; one page of the record of Mr I.'s interview; Mr. M.'s interview record; one page of the interview record of an officer from military unit no. 3179; copies of instructions by the investigators to the police; an order to carry out a ballistics expert examination; a certificate confirming that Mr M. was transporting the bodies of the Nasukhanovs; a certificate issued by the Shali ROVD on 1 April 2002; ballistics expert examination reports; decisions to suspend and resume the investigation; orders to carry out medical expert examinations; a record of Mr S.Kh.'s interview, decisions to grant victim status to the first applicant and Ms N. and their interview records; the death certificates of Movsar and Movladi Nasukhanov; a decision dismissing the request for access to the investigation file; and a decision to compose an investigating group. The Government explained that since the investigation in case no. 54059 was in progress, disclosure of all the documents would be in violation of Article 161 of the Code of Criminal Procedure as it would run contrary to the interests of the parties to the proceedings. 64. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
| 1
|
train
|
001-96149
|
ENG
|
UKR
|
CHAMBER
| 2,009
|
CASE OF KASYANCHUK v. UKRAINE
| 4
|
Violation of Article 1 of Protocol No. 1 - Protection of property
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
4. The applicant was born in 1953 and lives in the village of Uzhachyn, Zhytomyr Region. 5. The applicant worked at the State-owned Atomspetsbud company (Державна будівельно-промислова компанія «Атомспецбуд»). 6. On an unspecified date the applicant instituted proceedings against the above company in the Novograd-Volynskyy Town Court (“the Town Court”) claiming 8,677.37 Ukrainian hryvnias (UAH) in salary arrears. 7. By an order of the Ministry of Energy dated 27 June 2002, the company was liquidated and a liquidation commission established. 8. On 15 April 2003 the Town Court terminated the proceedings in the case because the company was in liquidation. 9. By a letter of 15 December 2003 the liquidation commission acknowledged the applicant's claim of UAH 8,677.37. The applicant was included in the register of creditors of the company. 10. On 19 December 2008 the applicant was paid the full amount of the outstanding debt. 11. The relevant domestic law is summarised in the judgment of Mykhaylenky and Others v. Ukraine (nos. 35091/02, and the following, §§ 24-33, ECHR 2004XII).
| 1
|
train
|
001-71853
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,005
|
TOTH v. HUNGARY
| 4
|
Inadmissible
| null |
The applicant, Mr Ferenc Tóth, is a Hungarian national, who was born in 1953 and lives in Tura, Hungary. He is represented before the Court by Mr J. Pajcsics, a lawyer practising 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. The applicant is a professional hunter. At the relevant time he had a firearms licence; through his interest in firearms he became acquainted with Mr R.B. and Mr G.S. In early 1995 R.B. gave the applicant a hand grenade as a present. In February 1997 Mr A.D., an acquaintance of G.S., met a person called “Peter” in a club. Peter asked A.D. whether he could procure 50 hand grenades for him. A.D. promised to look into the matter and obtained the applicant’s phone number from G.S. He repeatedly called the applicant to ask whether he could help him in procuring the hand grenades. The applicant eventually undertook to hand over to him the grenade he had received as a present. At their meeting Peter was also present and discussed the price of the grenades with them. Afterwards, Peter called the applicant regularly, asking him to procure the 50 grenades. The applicant contacted R.B. and requested 10 or 20 hand grenades from him. On 10 March 1997 the applicant obtained 21 grenades from R.B. On the way home he met A.D. and Peter. They decided to conclude their business the following day. On 11 March 1997, instead of Peter, police officers arrived at the meeting and searched the applicant’s car. They found 21 hand grenades in it. The applicant was arrested together with A.D. Subsequently, criminal proceedings were initiated against the applicant on charges of the abuse of explosives. During the investigation the applicant confessed to the offence. However, he maintained that he had been entrapped by Peter into committing it. On 7 April 1997 the applicant’s lawyer requested the Budapest Public Prosecutor to investigate the matter of police entrapment, having regard to the suspicion that the person called Peter was an undercover police officer whose identity the Head of the National Police refused to reveal. The Prosecutor stated that Peter might be an undercover police officer who had secretly collected information about the applicant. However, he refused to open an investigation into the matter and took the view that the Head of the National Police had proceeded lawfully throughout. The Budapest XIV/XVI District Public Prosecutor charged the applicant with the abuse of explosives. Subsequently, he was also charged with the abuse of firearms. During the hearings before the Pest Central District Court the applicant maintained that, although he had committed the offence, he had not had any intention to trade in grenades and only did so because of the incitement by Peter, an undercover police officer. He claimed that the officer’s incitement had not been justified, since the police had no good reason to suspect the applicant of any prior involvement in selling hand grenades. He had no criminal record and there was nothing to suggest that he was predisposed to becoming involved in dealing in grenades until approached by Peter. On 11 January 2000 the District Court convicted the applicant of the abuse of explosives and firearms, and sentenced him, as a cumulative punishment, to two years’ imprisonment, suspended for three years. In reaching its conclusion the District Court stressed the fact that the applicant had had no previous criminal record, that time had elapsed and that the applicant had confessed. The court established that a person called Peter had been involved in the case, but could not be identified. It relied on the testimonies of the accused and three witnesses, expert opinions and documentary evidence. The applicant appealed. He argued that Article 6 § 1 of the Convention had been violated in that he did not have a fair trial before the District Court. He referred to the Court’s case-law, in particular the cases of Lüdi v. Switzerland (judgment of 15 June 1992, Series A no. 238) and Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV). For its part, the Prosecutor’s Office appealed against the leniency of the sentence imposed on the applicant, having regard to the widespread bomb attacks taking place at the material time. The Budapest Regional Court examined the applicant’s allegations concerning the fairness of the proceedings. It requested the Criminal Directorate of the National Police to supply information about the identity of Peter. It sought to have the police officer in charge of the operation exempted from his duty of confidentiality. The court intended to hear both men as witnesses. In reply to this request, the Head of the National Police stated that Peter was an informer acting on police instructions, pursuant to Article 64 § 1 (a) of the Police Act. He refused to give further information about Peter or to exempt his handler from his duty of confidentiality. In these circumstances, the Regional Court was forced to endorse the first-instance court’s findings of fact. In its judgment of 12 December 2001 it upheld the applicant’s conviction and sentence. The Regional Court held that the applicant and his accomplices would not have committed the offence without the pressure of the undercover police agent. However, it held as follows: “The act committed by the defendants is an act which is obviously dangerous for society and which therefore matches the notion of a criminal offence (section 10 § 2 of the Criminal Code). Its danger for society cannot be questioned even if there was indeed a provocation by the police, that is, if instigation – known to or encouraged by the police – took place.” The court considered that although the police instigation did not exonerate the applicant, his right to a fair trial was nevertheless infringed, notably in the light of the Teixeira and Lüdi cases. It also considered that the fact that the applicant would not have committed the offence, without incitement by Peter, was a factor to be taken into account when imposing sentence. Consequently, it rejected the prosecution’s request to increase the applicant’s sentence, despite its own finding that the offence was particularly dangerous for society, given the frequency of bomb attacks at the time. However, it did not mitigate the applicant’s sentence as requested by the latter in his appeal. The court also noted that, in separate proceedings, the applicant had meanwhile been convicted of an abuse of ammunition by the Gödöllő District Court on 26 April 2001. Concerning the assessment of the evidence, the Regional Court stated as follows: “The findings of fact are based on lawfully obtained evidence, namely the defendants’ admissions, the police report on their apprehension and the information contained in the minutes of seizure. The doubt prevailing in the case (whether or not Peter instigated the crime) was assessed in the defendants’ favour – the court accepted their testimonies in this connection.” “[... R]eview proceedings may be initiated ... if ... (a) a person was ... convicted ... in breach of the substantive provisions of criminal law; ...” “The Supreme Court may quash the decision reviewed and instruct the lower-instance court ... to resume its proceedings, if: a) the second-instance court gave its decision on the merits in breach of the substantive provisions of criminal law referred to under section 284 § 1, ... .” “In the hypothesis described under paragraph 1 subparagraph a) [of section 291], the Supreme Court may itself deliver a decision in accordance with the law, if this will result in the acquittal of the defendant, ... the discontinuation of the proceedings, or the imposition of a less severe punishment.” “(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment. (2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.” “A person, whose act at the time of perpetration represents little danger to society so that even the most lenient punishment ... is unnecessary, shall not be punishable.” “(1) Any person who, without a licence, prepares, obtains, possesses or transfers to an unauthorised person explosives or blasting-agents or equipment for their use, commits a crime, punishable with imprisonment of two to eight years.” “(1) Any person who a) prepares, obtains, possesses or distributes firearms or ammunition without a licence, b) exceeds the provisions of a licence relating to the preparation, obtaining, possession or trade of firearms or ammunition, c) transfers his licensed firearm or ammunition to a person who has no licence; commits a crime, punishable with imprisonment of two to eight years.” “It is not allowed to deliver a judgment in which the court finds the defendant guilty of one of the cumulative offences with which the latter has been charged and imposes a sentence, while discontinues the proceedings in respect of another offence, having regard to its negligible danger to society (section 28 of the Criminal Code).”
| 0
|
train
|
001-71667
|
ENG
|
POL
|
ADMISSIBILITY
| 2,005
|
KAPITAL INWESTYCYJNY SP. Z O. O v. POLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Kapitał Inwestycyjny Sp. Z O. O, is a limited liability company incorporated in Poland, with its registered seat in Warsaw. It is represented before the Court by Mr Zenon Wieczorek, its director. The respondent Government were represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 April 1994 the applicant company instituted civil proceedings against a co-operative “P”. It claimed damages resulting from contractual obligations between the parties. On 27 April 1994 the Warsaw District Court issued a payment order against the co-operative “P”. On 22 June 1994 and 17 August 1994 the bailiff seized the co-operative’s bank account. On 23 June 1994 the defendant co-operative filed a defence against the payment order (zarzuty przeciwko nakazowi zapłaty). It requested that the applicant’s claims be dismissed on account, inter alia, of the invalidity of the contract. On 24 August 1994 the co-operative filed pleadings entitled “complaint regarding the bailiff’s acts”. In the pleadings it requested that the enforcement proceedings be stayed, that the security order be altered and its bank accounts freed. On 17 October 1994 the court also dismissed the complaint regarding the bailiff’s acts as such. On 10 September 1994 the court dismissed the defendant’s motions of 23 June 1994 and 16 August 1994. The court ruled that since no enforcement proceedings were pending the motion was purposeless and it had to be dismissed. On 21 October 1994 the applicant appealed against that decision. A further complaint by the defendant co-operative, lodged on 19 October 1994, about the bailiff’s acts concerning the scope of the security order and, in particular in respect of the seizure of bank accounts, was dismissed on 5 November 1994 and the defendant’s subsequent appeal was dismissed on 19 January 1995. On 30 November 1994 the Warsaw Regional Court allowed the defendant’s appeal of 21 October 1994 and stayed the enforcement of the payment order. On 30 November 1995 and 12 January 1996 hearings were held before the Warsaw Regional Court. On 16 April 1996 that court decided to stay the proceedings for payment as requested by the co-operative P. on the grounds that the proceedings to declare the contract null and void were pending. On 30 April 1996 the applicant company appealed but to no avail. Its appeal was dismissed by the Warsaw Court of Appeal on 12 July 1996. On 13 May 2004 the Warsaw Regional Court dismissed the applicant’s claim for payment and quashed the payment order of 27 April 1994. On 14 November 1995 the defendant co-operative instituted a parallel action against the applicant company challenging the validity of the contract on which its claims were based. It also requested that the original proceedings be stayed until the issue of the validity of that contract had been adjudicated. On 7 February 1996 the applicant company filed its pleadings in the new case. It argued that the claim should be rejected as inadmissible since the issue of the validity of the contract would in any event be considered in the proceedings for payment which had been instituted earlier. On 29 June 1999 the first-instance judgment was delivered. The court found the contract between the parties to be null and void. On 14 September 1999 the applicant company filed an appeal. On 4 April 2000 a hearing was held before the Warsaw Court of Appeal and the appellate court dismissed the appeal. On 5 July 2000 the applicant company filed a cassation appeal. On 5 February 2002 the Supreme Court rejected the cassation appeal, finding that no issue of legal importance justified its examination on the merits. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” Article 418 of the Civil Code, as applicable until 18 December 2001 (see “Constitutional Court”s judgment of 4 December 2001 below) provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.” On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 38-41 below). Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) shall apply to all events and legal situations that subsisted before that date. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution (see paragraphs 36-37 below). On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.” Article 45 § 1 of the Constitution states: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Article 64 of the Constitution reads: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.” Article 77 § 1 of the Constitution reads: “Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.” On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act. Article 2, in so far as relevant, reads as follows: Article 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 (see paragraph 46 below) in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.” Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
| 0
|
train
|
001-72556
|
ENG
|
ROU
|
CHAMBER
| 2,006
|
CASE OF STERE AND OTHERS v. ROMANIA
| 3
|
Violation of P1-1;Inadmissible under Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
| null |
4. The applicants were born in 1960, 1956 and 1948 respectively and live in Alba Iulia. 5. In connection with the restructuring of the armed forces, which had begun in 1995, a number of legislative measures were passed with a view to encouraging professional soldiers to apply for reassignment to the reserve force and thereby to take early retirement. 6. In addition to their retirement pension, section 7 of Government Ordinance no. 7 of 26 January 1998 (“Ordinance no. 7/1998”) granted those concerned a tax-free “income replacement allowance” calculated in relation to their gross monthly pay. Under section 31 (1) of Law no. 138 of 20 July 1999 (“Law no. 138/1999”), they were additionally entitled to a tax-free “maintenance allowance”, also calculated in relation to their gross monthly pay. The method of calculating those allowances was amended by Government Emergency Ordinance no. 136 of 14 September 2000 (“Ordinance no. 136/2000”), which provided that the net monthly pay would be used as the basis of calculation. 7. At their request, the applicants were assigned to the reserve force and thereby took early retirement, on 31 March 2000 for the first and third, and on 31 May 2000 for the second, with entitlements to the above-mentioned pension and allowances. However, when those sums were paid out, the Ministry of Defence deducted income tax, calculated in accordance with Ordinance no. 73 of 27 August 1999 concerning income tax (“Ordinance no. 73/1999”), thereby depriving the first applicant of 85,804,572 Romanian lei (ROL), the second of ROL 77,945,656 and the third of ROL 59,605,499. 8. In an action against the Ministry of Defence, the applicants claimed the reimbursement of those sums, which they alleged had been wrongfully deducted, on the ground that their allowances were exempt from tax under Ordinance no. 7/1998 and Law no. 138/1999. The Ministry disputed their claim, contending that the taxation in question was consistent with Ordinance no. 73/1999. 9. In a judgment of 11 January 2001 the Alba Iulia Court of First Instance allowed the applicants’ action and ordered the Ministry to reimburse the amounts deducted for tax. The court considered that on the date of their retirement, that is to say some time before the entry into force of Ordinance no. 136/2000, the applicants had acquired an entitlement to tax-free allowances calculated in relation to their gross monthly pay. Moreover, the court observed that section 5 of Ordinance no. 73/1999 provided that maintenance allowances were likewise tax exempt. 10. The Ministry of Defence appealed, arguing that the tax exemption provision in respect of the income replacement allowance, under section 7 of Ordinance no. 7/1998, had been expressly repealed by section 86 of Ordinance no. 73/1999, which had also implicitly abolished the exemption in respect of maintenance allowances under section 31 (1) of Law no. 138/1999. 11. In a final decision of 27 March 2001 the Alba County Court upheld the merits of the judgment at first instance on the following grounds: “Even assuming, purely for the sake of argument, that the provisions of section 7 of Ordinance no. 7/1998 had been repealed, those of section 31 (1) of Law no. 138/1999 – which also provide for tax exemption and for the calculation [of the allowance] in relation to gross monthly pay – would remain as a legal basis. The Ministry contends that the provision in question was implicitly repealed, but that view has not been substantiated, because Ordinance no. 73/1999 post-dates Law no. 138/1999 and if the legislature had wished to repeal the section in question, nothing would have prevented it from making express provision to that effect, as was the case for other legislative instruments referred to in section 86 of Ordinance no. 73/1999. ... In any event, a Government Ordinance, being of secondary legislative importance in relation to statute law, cannot repeal a statute. In addition, the Ministry wrongly contends that Ordinance no. 73/1999 constitutes a lex specialis in relation to Ordinance no. 7/1998 and to Law no. 138/1999. In actual fact, Ordinance no. 73/1999 is the framework instrument concerning taxation, and, in relation to the other two instruments mentioned above, which grant tax relief to a specific category of employees, it lays down the ordinary rules from which the special provisions of those instruments derogate. Moreover, section 6 of Ordinance no. 73/1999 states that income replacement allowances and maintenance allowances, such as those concerned in the present case, are exempt from income tax, thus indicating the legislature’s intention that they should not be taxable. The provisions of Ordinance no. 136/2000 to the effect that the allowance is calculated in relation to net pay do not apply in the case of the applicants, who retired before the entry into force of the Ordinance, which does not have retrospective effect ... The possibility of discrimination [between servicemen who retired after the entry into force of Ordinance no. 136/2000, whose allowances were calculated in relation to net pay, and those who retired before that date, who were entitled to allowances based on gross pay] is not left to the discretion of the employer or of the courts, but is a matter for the legislature, which should have taken this into account and found an appropriate solution in the course of the legislative process, by means of precise and specific regulatory provisions. Accordingly, neither an employer nor a court can substitute itself for the legislature in harmonising the various provisions which have come into force at different times but which concern situations that are similar, although they arose, changed or ceased to exist under different statutes.” 12. The court also considered that the two allowances in issue could not be characterised as a “salary” or “income treated as a salary” for the purposes of sections 22 and 23 of Ordinance no. 73/1999, especially as they were not included among the forms of taxable income referred to in section 4 of that Ordinance. Lastly, the court looked at the practice of other courts in similar disputes and found that it supported the claims of the former servicemen. 13. As the judgment of 11 January 2001 had become res judicata and had been endorsed with a writ of execution, the applicants received, on an unspecified date, the amounts they had claimed. 14. On 11 September 2001 the Procurator-General of Romania applied to the Supreme Court of Justice to have the 11 January 2001 judgment of the Alba Iulia Court of First Instance and the 27 March 2001 decision of the Alba County Court quashed. 15. He considered that in construing domestic law the two courts had committed serious errors of law which had vitiated the settlement of the dispute. He argued that section 86 of Ordinance no. 73/1999 had superseded the provisions of section 7 of Ordinance no. 7/1998 and section 31 of Law no. 138/1999, and added that under sections 4 and 23 of Ordinance no. 73/1999 the allowances and other entitlements of military personnel were treated as salaries and were therefore liable to the taxation provided for in that Ordinance. 16. The applicants sought the dismissal of the Procurator-General’s application to have the judgments quashed, disputing his arguments that the above-mentioned provisions had been superseded and that the allowances were treated as salaries. They argued that, in any event, even assuming that the allowances could have been treated as salaries, they should not have been liable to tax, since section 6 (f) of Ordinance no. 73/1999 exempted from tax any allowances that were calculated in relation to net monthly pay. Moreover, under section 24 (2) of that Ordinance, net earnings were not defined as gross earnings minus tax but as gross earnings minus social-insurance contributions. Accordingly, they considered that the Ministry of Defence had wrongly deducted tax from their allowances. 17. In a judgment of 30 January 2002 the Supreme Court of Justice allowed the Procurator-General’s application, quashed the impugned judgments and ordered the reimbursement of the sums that the Ministry of Defence had paid to the applicants on the basis of those judgments. The relevant passage of the decision provided: “Whilst section 31 of Law no. 138/1999 provides that, upon their reassignment to the reserve force, servicemen benefit from a tax-free maintenance allowance, calculated in relation to their gross monthly pay, that provision must be read in the light of the provisions of section 5 of Government Ordinance no. 73/1999 and of the Government Order [no. 1066 of 29 December 1999 – “Order no. 1066/1999”], which, whilst providing that income from maintenance allowances is exempt from tax, specify which forms of income are included in that category and exclude any salaries or income treated as such. Considering that Law no. 138/1999 pertains precisely to salaries and entitlements relating to the status of Ministry of Defence employee, it is clear that the grant of a maintenance allowance under section 31 of the above-mentioned Law stems from employee status, and that such allowances are accordingly liable to tax, in accordance with Ordinance no. 73/1999. That conclusion is confirmed by Government Order no. 1066/1999 which, referring to section 5 of Ordinance no. 73/1999, specifies what forms of income are exempt from tax, among them maintenance allowances. It can be seen from the enumeration in that provision that the maintenance allowances contemplated in Ordinance no. 73/1999 are confined to those granted for special purposes, such as maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, funeral grants, etc. The above-mentioned provision makes no reference to maintenance allowances paid to servicemen upon their reassignment to the reserve force and calculated in relation to their gross monthly pay. Consequently, since such allowances are comparable to a salary and are calculated on the basis of gross monthly pay, they are taxable like any gross income. In addition, section 86 of Ordinance no. 73/1999 expressly provides that any provision contrary to that Ordinance is superseded, thereby confirming once again that the legislature’s intention was to render such income taxable. As regards the income replacement allowances granted to the applicants under section 7 of Ordinance no. 7/1998, being tax-exempt and likewise calculated in relation to gross monthly pay, it should be noted that section 86 of Ordinance no. 73/1999 expressly superseded that provision as regards the tax exemption of such income. Accordingly, the applicants are also liable for tax on such income. Furthermore, it is to be observed that section 6 (f) of Ordinance no. 73/1999 exempts from income tax only those income replacement allowances and maintenance allowances that are calculated in relation to net monthly pay, whereas the allowances granted to the applicants were calculated in relation to their gross monthly pay. It follows that this income was also taxable.” 18. As the authorities failed to bring any action for the enforcement of the judgment of the Supreme Court of Justice, the applicants have not, to date, reimbursed the disputed amounts. 19. Article 330 of the Code of Civil Procedure provided: “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds: 1. that the court in question has exceeded its jurisdiction; 2. that the decision concerned by the application has seriously breached the law, leading to erroneous findings on the merits of the case, or that the decision is ill-founded.” This Article was repealed by Government Emergency Ordinance no. 58 of 25 June 2003. 20. The relevant provisions read as follows: “During the restructuring of the armed forces, officers, non-commissioned officers and instructors [having completed at least 20 years of service] may request to be reassigned to the reserve force, before reaching the statutory age-limit, with a military pension entitlement ...” “Military personnel reassigned to the reserve force who are entitled to a military pension ... shall receive, in return for their service in the armed forces, the compensation provided for in the statutory provisions on remuneration of military personnel. Moreover, for each remaining year of service until the age of fifty-five, they shall be entitled to a tax-free income replacement allowance of which the amount shall be double that of their last gross monthly pay.” “Military personnel having completed less than twenty years of service may request to be reassigned to the reserve force or may be assigned thereto automatically ... and shall receive a tax-free income replacement allowance, calculated on the basis of their length of service and their last gross monthly pay.” 21. Section 31 of Law no. 138 provides: “Military personnel reassigned to the reserve force who are entitled to a military pension, ... shall receive a tax-free maintenance allowance calculated according to their length of service ... and their last gross monthly pay ... Military personnel reassigned to the reserve force, with a military pension entitlement, before reaching the statutory age-limit, shall also receive, for each remaining year of service until that age, a tax-free maintenance allowance of which the amount shall be double that of their last gross monthly pay. The provisions of the second paragraph shall not apply to military personnel receiving the income replacement allowance provided for by Ordinance no. 7/1998.” 22. The relevant provisions read as follows: “The category of taxable income shall consist of income from self-employment, rent from property, salaries, interest, dividends and other income.” “The following shall not be considered taxable income and shall not be liable to taxation: (a) maintenance allowances, grants and other forms of benefit for special purposes, being paid from the State budget, the social insurance fund, special funds, local councils, other public funds or third-party sources ...” “The following shall be considered tax-free income: ... sums constituting income replacement allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force in connection with the restructuring of the armed forces, and maintenance allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force with or without a pension entitlement”. “A salary shall be defined as any income in money or in kind received by an individual who pursues an activity under a contract of employment, regardless of the term of the contract, the designation given to the income or the means of payment ...” “The following shall be treated as salaries for tax purposes: monthly pay, allowances, bonuses, subsidies and other statutory entitlements of armed-forces personnel.” “The net amount of taxable salaries shall be calculated by subtracting the following from the gross amount ...: (a) statutory contributions to supplementary pension, unemployment benefit and medical insurance funds; (b) a 15% deduction in respect of professional expenses ....” “The present Ordinance, upon its entry into force, shall supersede ... the provisions on tax exemption in respect of the income replacement allowances provided for in section 7 and section 8 (1) of Ordinance no. 7/1998 ..., together with any other provisions that may be incompatible.” 23. The Order in question provides: “Tax-free income [for the purposes of section 5 (a) of Ordinance no. 73/1999] shall include: ... maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, unemployment benefit, professional reintegration allowances, funeral grants, humanitarian, medical or social relief ...” 24. The relevant provisions read as follows: “The amount of the income replacement allowance provided for in sections 7, 8 and 11 of Ordinance no. 7/1998 ... and that of the maintenance allowance provided for in section 31 and section 32 (1) of Law no. 138/1999 shall be calculated on the basis of net monthly pay.” “The amount of the net monthly pay shall be calculated by subtracting the statutory monthly tax from the amount of the gross monthly pay in respect of the last month of service. The amount of the monthly tax shall be calculated as provided in Ordinance no. 73/1999 on income tax”.
| 0
|
train
|
001-58196
|
ENG
|
TUR
|
CHAMBER
| 1,998
|
CASE OF TEKİN v. TURKEY
| 2
|
No violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5-1;Not necessary to examine Art. 6-1;No violation of Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
C. Russo
|
7. The applicant, Mr Salih Tekin, a Turkish citizen of Kurdish origin, was born in 1964 and lives in Diyarbakır. Prior to the events in question, he had been employed as a journalist for the newspaper Özgür Gündem. The facts in the case are disputed. 8. It was not disputed that in February 1993, during a visit to his family in the hamlet of Yassıtepe, the applicant was arrested, on suspicion of threatening village guards, by gendarmes under the command of Officer Harun Altın and taken to Derinsu gendarmerie headquarters. The applicant alleged that his arrest took place on the morning of 15 February 1993, whereas the Government claimed that it occurred on 17 February 1993. 9. He was held at Derinsu until 19 February 1993. He alleged that during his time in custody there he was detained in a cell without any lighting, bed or blankets, in sub-zero temperatures, and fed with only bread and water. He claimed to have been assaulted in his cell by gendarmes, including Officer Altın. He stated that he would have died of cold had his three brothers not been permitted to enter his cell on the night of 18 February and wrapped him in extra clothing. The Government denied that Mr Tekin had been ill-treated. They stated that it would have been impossible for the temperature in the security room to have dropped below freezing-point, since it was situated in the centre of the building and surrounded by other units heated by coal-burning stoves. They also denied that his brothers had been allowed to join him there. 10. On the morning of 19 February 1993, the applicant was taken to Derik district gendarmerie headquarters. He was released on the same day. He alleged to have been tortured at Derik, through the application of cold water, electric shocks and beatings, with the purpose of forcing him to sign a confession statement. He claimed that the district gendarmerie commander, Musa Çitil, threatened him with death if he returned to the area. The Government contested that any ill-treatment had taken place. 11. Prior to being released, Mr Tekin was brought before the public prosecutor, Hasan Altun. It was not disputed that he complained to Mr Altun of having been tortured and ill-treated at both Derinsu and Derik. The applicant claimed in addition that he had handed Mr Altun a wet piece of cloth with which he had been blindfolded while being hosed with water. Mr Altun recorded these allegations, but took no further action in relation to them. 12. The Supreme Council of Judges and Prosecutors consequently decided to commence an investigation into the reasons for Mr Altun’s inaction, which led to disciplinary proceedings being launched against him. During the hearing before the Court the Government confirmed that these proceedings had not yet been concluded. 13. Mr Tekin returned to Diyarbakır on 20 February 1993. He did not see a doctor after his release. The following week he lodged a complaint about his treatment with the Human Rights Association, which advised him to make an application to the Commission. 14. Since the offence with which the applicant was charged (see paragraph 8 above) fell within the competence of the National Security Courts (see paragraph 29 below), a Derik public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır National Security Court. Following a hearing on 13 May 1993, the applicant was acquitted on 2 August 1993. 15. Following the Commission’s communication to the Government on 11 October 1993 of Mr Tekin’s application, the Ministry of Justice (International Law and External Relations General Directorate) contacted the public prosecutor’s office in Derik on 18 December 1993, informing it of the applicant’s complaints. A preliminary investigation was opened. 16. Officer Altın was questioned in connection with Mr Tekin’s allegations by a public prosecutor in Daday district on 20 April 1994, at the request of the Derik public prosecutor, Bekir Özenir. 17. Mr Özenir issued a decision of non-prosecution in relation to officers Altın and Çitil on 4 May 1994, on the grounds that there was no evidence that they had ill-treated or threatened Mr Tekin, other than the latter’s unsubstantiated allegations. 18. However, this decision was not made final following the intervention of the Ministry of Justice, which took the view that Mr Tekin should be given the opportunity to file an appeal against it. Furthermore, because of the identities of the defendants and the nature of the allegations against them, the Ministry of Justice considered that the alleged offences might fall within the scope of the Law on the Prosecution of Civil Servants, over which the public prosecutor had no jurisdiction (see paragraph 30 below). 19. A decision of non-jurisdiction was subsequently issued by the Derik public prosecutor’s office on 4 May 1995 and the case was referred to the Derik District Administrative Council. 20. In this connection, on 14 July 1995, a statement was taken from Commander Çitil by a gendarmerie lieutenant-colonel. 21. The Derik District Administrative Council submitted its summary investigation report to the office of the Mardin provincial governor on 5 September 1995. On 12 September 1995, this report was referred to the Mardin Provincial Administrative Council (see paragraph 30 below). The latter decided, on 13 September 1995, that, due to lack of evidence, officers Altın and Çitil were exempt from public prosecution. 22. This decision was subject to an automatic appeal to the Supreme Administrative Court (see paragraph 30 below). The latter confirmed the decision of non-prosecution. 23. The Commission conducted an investigation into the facts, with the assistance of the parties. It accepted written material, including witness statements, reports about Turkey, documents relating to the applicant’s detention at Derinsu and Derik gendarmerie headquarters and to the investigation on the domestic level into the applicant’s allegations, and a floor plan of Derinsu gendarmerie headquarters. In addition, three delegates of the Commission heard the oral evidence of seven witnesses in Diyarbakır on 8 November 1995 and a further hearing took place before the Commission in Strasbourg on 7 March 1996. The witnesses included the applicant, his father, Hacı Mehmet Tekin, officers Harun Altın and Musa Çitil, and three neighbours of the applicant’s father, Sinan Dinç, Mehmet Dinç and Halit Tutmaz, who alleged to have spoken to the applicant shortly after his release. The Commission had requested the attendance of the public prosecutors Hasan Altun, Bekir Özenir and Osman Yetkin (the latter was the public prosecutor at the Diyarbakır National Security Court), but none of them appeared to give evidence. 24. The Commission was unable to determine the date of the applicant’s arrest or the precise details of his treatment in custody. However, cautiously evaluating the evidence, the Commission was satisfied that the applicant had been kept in a cold and dark cell and blindfolded and treated in a way which left wounds and bruises on his body in connection with his interrogation. 25. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 26. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” 27. The Turkish Criminal Code makes it a criminal offence: (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), (b) to issue threats (Article 191), (c) to subject an individual to torture or ill-treatment (Articles 243 and 245). 28. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 29. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 30. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 26 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any public prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.
| 1
|
train
|
001-72123
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,006
|
İÇYER v. TURKEY
| 1
|
Inadmissible
| null |
1. The applicant, Mr Aydın İçyer, is a Turkish national who was born in 1946 and lives in Istanbul. He is represented before the Court by Mr M. A. Kırdök and Mr Özcan Kılıç, lawyers practising in Istanbul. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Until October 1994 the applicant lived in Eğrikavak, a village of the Ovacık district in Tunceli, where he owns property. 4. On 3 October 1994 the inhabitants of Eğrikavak were forcibly evicted from their village by security forces on account of the disturbances in the region. The security forces also destroyed the applicant’s property. The applicant and his family then moved to Istanbul. 5. On 4 October 1994 the applicant lodged a petition with the Public Prosecutor’s Office in Ovacık complaining that his house was burned down by the security forces on 3 October 1994. 6. On 9 December 1994 the Ovacık public prosecutor declined jurisdiction and sent the case file to the office of the Administrative Council in Ovacık, in accordance with Article 4 (b) of Decree no. 285 and the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu). 7. On 25 October 1995 the Administrative Council sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified. With reference to a letter from the Ovacık District Gendarme Command of 1 November 1994, the Administrative Council also noted that no house had been burned down by the security forces in the region. 8. On 26 October 2001 the applicant filed petitions with the Governor’s office in Tunceli and the District Governor’s office in Ovacık requesting permission to return to his village. 9. On 31 October 2001 the state-of-emergency office attached to the Ovacık District Governor’s office stated the following in response to the petition submitted by the applicant: “Your petition requesting permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” 10. The applicant was a resident of Eğrikavak village. The official records indicated that the inhabitants of Eğrikavak had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicant or his fellow villagers to leave their village. 11. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages, as demonstrated by 110 applicants who indicated in their petitions to the Diyarbakır Compensation Commission that their current domiciles were in their respective villages (see paragraph 43 below). 12. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004. That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. 13. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. 14. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions (see paragraph 43 below). Many villagers had already been awarded compensation for the damage they had sustained (see paragraphs 28-40 below). 15. According to this document, at the time of the burning down of his house and the eviction of the inhabitants from Eğrikavak village, the applicant owned three hundred sheep, one hundred goats, one horse, six hundred trees, one TV set, one refrigerator, one bed and fifty kitchen utensils. 16. It appears from this document that the applicant owns five plots of land in Eğrikavak. 17. This report was prepared by a commission of inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,523 hamlets were evicted and forced to move to other regions of the country. The number of people evicted from 183 villages and 823 hamlets in the province of Tunceli, which includes Eğrikavak village, was estimated to be around 40,933. The detailed content of this report can be found in the Court’s judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). 18. This Resolution gives a detailed account of the abuses by members of the Turkish security forces and urges the Turkish Government to take the necessary administrative, judicial and legislative measures to halt human rights violations (Doğan and Others, cited above, § 36). 19. This report was prepared by a working and monitoring group composed of five scholars and experts commissioned by the TESEV (hereafter “TESEV report”). It contains the findings of the working and monitoring group subsequent to field researches they had conducted in Diyarbakır, Batman, Hakkâri and Istanbul. The TESEV report examines the problems arising from the implementation of Law no. 5233 on compensation for losses sustained as a result of terrorism or the fight against terrorism. It also aims to suggest policy proposals to the Government, national and international bodies and NGOs. 20. According to the TESEV report, there are serious problems concerning the return of internally displaced persons (“IDP”) to their villages. Firstly, IDPs are unable to fund their travel and removal expenses in order to return to their villages from the cities. Secondly, the infrastructure of the villages is not in a good shape. In most villages there is no electricity, water, mains or health services. Thirdly, IDPs still worry about the lack of sufficient security in their former places of residence on account of intimidation by the PKK, military operations and clashes or possible pressure exerted on them by the State authorities to agree to become village guards. Finally, non-governmental organisations point to the presence of land mines which cause the death or injury of people living in the region. 21. The TESEV report welcomes the enactment of Law no. 5233 and considers it a positive step towards redressing the human rights violations caused by the forced displacements. However, it is unclear whether persons who left the country can benefit from the Law in question. It appears that the a majority of IDPs misconceive the rights contained in the Law. Although Law no. 5233 provides a remedy for cases of death or injury, most IDPs consider that the Law is confined to cases of forced evacuation of villages. Furthermore, since Law no. 5233 includes the term “terrorism” in its title, IDPs generally think that they might be considered terrorists if they lodged an application under the Law and complained about the State. Some IDPs think that the remedy envisaged by the Law falls far short of meeting their needs since it does not offer sufficient compensation and there is no possibility of bringing the perpetrators of unlawful acts to justice. Moreover, Law no. 5233 does not contain a right to non-pecuniary damages. IDPs therefore prefer to lodge an application with the European Court of Human Rights. 22. As regards the implementation of Law no. 5233, there are three major problems. Firstly, the members of the compensation commissions have a very limited margin of appreciation in rendering decisions. Secondly, even if they are in good faith, the members of the compensation commissions, who are civil servants, do not want to take any risks and therefore expect the Government to demonstrate a clear political will in implementing the Law. Thirdly, some of the commission members seem to be prejudiced towards IDPs, considering them to be opportunists and/or PKK sympathisers who want to misuse the Law. 23. The burden of proof on the victims to prove their claims used to be a major problem. However, subsequent to decision no. 9239 of the Council of Ministers, on 15 September 2005, claimants can prove their allegations by means of any information or document. 24. Concerning the composition of the compensation commissions, it was noted that the majority of their members are civil servants. Accordingly, in the eyes of the victims there are doubts about their independence and impartiality. 25. It was recommended that the Law should stay in force for another year so that justice can be done and the process of redress achieve its aim. 26. Consequently, the TESEV report makes a number of other recommendations with a view to tackling the problems of the IDPs and to establishing peace and security in south-east Turkey. 27. The documents listed below concern the inability of the administrative and judicial authorities to visit or to conduct on-site inspections in the villages of Ovacık on account of the lack of security in the area. 28. The Government claimed that the Damage Assessment and Compensation Commissions (“compensation commissions”) established to provide an effective domestic remedy for the grievances of persons who were affected either by terrorism or the acts of the security forces in combating terrorism had become fully functional. In this connection they furnished the Court with copies of decisions and declarations issued by these bodies with a view to demonstrating the effectiveness of the new remedy offered by the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism. 29. The Government submitted a copy of 440 decisions issued by the compensation commissions set up in Tunceli and Diyarbakır. These decisions exclusively concern awards of compensation to persons who suffered damage as a result of their inability to gain access to their homes and land in villages in the Tunceli and Diyarbakır provinces. 30. In a decision of 29 September 2005 the Tunceli Compensation Commission awarded compensation to twenty-four persons. As an example, in the case of Cafer Biçici (application no. 6607), the compensation commission found that the claimant had been unable togain access to his possessions in Boydaş village of the Hozat district in Tunceli for seven years between 1994 and 2001. Relying on expert opinions, the compensation commission considered that the claimant should be awarded 5,404 new Turkish liras (YTL) for damage caused to his immoveable property, YTL 1,100 for his poplar trees, YTL 1,060 for his land and fruit trees and YTL 7,420 for deprivation of income from agriculture for seven years (7 X 1,060 = 7,420). Thus, the compensation commission decided to award the claimant a total amount of YTL 14,000 (approximately 8,725 euros (EUR)) to compensate his damage. 31. In the case of Hüseyin Biçici (application no. 10436), the compensation commission awarded the claimant YTL 26,600 (approximately EUR 16,580) for the damage he had suffered on account of his inability to gain access to his possessions in Boydaş village. On the basis of the expert opinions and investigations, the compensation commission found that the claimant had sustained damage in the amounts of YTL 7,720 for his immoveable property (house, barn etc.) and YTL 18,900 for deprivation of income from agriculture for seven years between 1994 and 2001 (7 x 2,700 = 18,900). Likewise, in the case of Hüsnü Özkay (decision of 9 September 2005, no. 2005/4-564) the Diyarbakır Compensation Commission awarded the claimant YTL 27,520 (approximately EUR 23,000) for the damage he had suffered as a result of his inability to return to his village since 1993. This amount consisted of compensation of YTL 15,269 for the destruction of Mr Özkay’s house, YTL 8,950 for his barn, YTL 7,700 for his inability to cultivate his land, and YTL 5,250 for his vineyard. The compensation commission issued similar decisions with similar conclusions in respect of the applications by twenty-two other claimants. It sent the claimants friendly-settlement declarations specifying the amounts to be paid. 32. By a decision of 1 August 2005 the Diyarbakır Compensation Commission no. 4 decided to award YTL 50,246 (approximately EUR 31,365) to Mustafa Narin, who had been unable to gain access to his possessions since 1993 in Şaklat village of the Kocaköy district in Diyarbakır province. Subsequent to the determination of the damage and the decision to award the aforementioned amount of compensation, the compensation commission sent the claimant a friendly-settlement declaration. The Diyarbakır Compensation Commission issued similar decisions with similar conclusions in respect of 415 other applications lodged by persons who had sustained damage as a result of their inability to gain access to their possessions in villages in Diyarbakır. 33. The Government also submitted a number of decisions issued by the compensation commissions in Şırnak, Diyarbakır, Batman and Hakkâri. The subject matter of these decisions is the award of compensation to persons who sustained damage to their property as a result of terrorist acts. 34. In a decision of 14 June 2005 the Şırnak Compensation Commission decided to award YTL 8,000 (approximately EUR 5,000) to Kemal Ecer, whose house in Oymakaya village of the Beytüşşebap district in Şırnak province had been burned down by a group of terrorists. 35. In an application lodged by Abdullah Salman, Mehmet Salman and İsmail Tekin, the Diyarbakır Compensation Commission decided to award YTL 1,692 (approximately EUR 1,056) to claimants on account of the damage caused to their fruit trees in the course of an anti-terrorist operation by the security forces in Diyarbakır. 36. As regards the application lodged by Adil Erdoğan, the Bitlis Compensation Commission decided to award YTL 466.88 (approximately EUR 300) for the death of the claimant’s cow during a clash between the village guards and PKK terrorists in Kavakdibi village in Bitlis province. 37. By a decision of 20 June 2005 the Diyarbakır Compensation Commission decided to award YTL 25,000 (approximately EUR 15,600) to İ. Burhan Aslan on account of the burning down of his tractor by members of the PKK in Ağıllı village of the Bismil district in Diyarbakır province. 38. The compensation commissions also issued a number of decisions awarding compensation to persons who were injured or whose relatives were killed during terror incidents. 39. As an example, in a decision of 20 June 2005 the Tunceli Compensation Commission decided to award compensation to Hasan Dalkılıç, Mevlüt Cantürk, Sinan Yıldırım, Dilber Karik Dal, Hıdır Yadigaroğulları and Ali Kes on account of the killing of their relatives during terror incidents. The compensation commission awarded a fixed amount of YTL 14,035 (approximately EUR 8,760) to each of the claimants. The claimants all signed the friendly-settlement declarations sent by the compensation commissions. 40. On 8 June 2005 the Tunceli Compensation Commission decided to award YTL 1,294.95 to İsmail Baştimur on account of the injuries he had suffered as a result of the explosion of a mine. It also awarded YTL 8,421 to Alişan Bulut, who was injured and became disabled as a result of a terrorist attack. 41. The Government submitted a copy of three judgments rendered by the Supreme Administrative Court. In an appeal lodged with the latter court (decision no. 2000/5120, on file no. 1999/2162, 11 October 2000) against the judgment rendered by the Erzurum Administrative Court, the appellant, Mr Ömer Akakuş, alleged that he had left his village in the province of Ağrı on account of terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since 1993. The Supreme Administrative Court acceded to his request and overruled the first-instance court’s judgment. The former court noted that the appellant had left his village owing to the terrorist incidents and not at the request or on the instructions of the authorities. On that account, it considered that, even if the damage sustained by the appellant could not be ascribed to the authorities and though there was no “causal link”, the authorities were liable since they had failed to prevent terrorist incidents and maintain security. 42. The Supreme Administrative Court delivered judgments with similar conclusions in the cases of Muammer and Burhan Gürtürk (decisions nos. 2001/4431-35, on files nos. 2000/4372 and 2000/4997, 5 December 2001). 43. According to this list, 800 persons, whose applications are pending before the Court, have also applied to the Diyarbakır Compensation Commission and claimed compensation for the damage they incurred as a result of their inability to gain access to their possessions in their villages. In their petitions to the Diyarbakır Compensation Commission, 110 persons, whose names appear on this list, indicated their addresses as being in their villages. 44. On 14 July 2004 Law no. 5233, entitled “Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism” (“Compensation Law”), was passed by the Grand National Assembly and entered into force on 27 July 2004. On 28 December 2005 the Grand National Assembly enacted Law no. 5442 and amended several provisions of the compensation law. This Law lays down the principles and procedure for compensating damage sustained by persons as a result of terrorist acts or of measures taken by the authorities to combat terrorism. In particular, it aims to indemnify the material damage sustained by natural or legal persons who have migrated or have been displaced due to terrorism or anti-terrorist activities. It also aims to partially compensate the damage sustained by civil servants who cannot be considered as part of the internally displaced population or migrants, but who have been affected by terrorism or by anti-terrorist activities carried out by the security forces. 45. Section 7 of the Compensation Law reads: “The damage to be compensated by this Law, through friendly settlement, is as follows: a) All types of damage caused to livestock, trees, agricultural products and any moveable or immoveable property; b) Damage resulting from injury, physical disability and death and expenditure incurred for medical treatment and funeral expenses; c) Material damage suffered by those who could not gain access to their property because of the acts carried out within the context of the fight against terrorism.” 46. The damage incurred and the compensation payable under section 7 are determined by damage assessment commissions (“compensation commissions”). In this connection section 4 provides: “Damage assessment commissions shall be established in provinces within a period of ten days from receipt of applications made under this Law. The commission shall be composed of a chairman and six members. The chairman of the commission shall be the deputy governor designated by the governor; and the members shall be appointed by the governor from among the public employees working in that particular province and shall be experts on finance, public works and housing, agriculture and rural affairs, health, industry and commerce; and a lawyer appointed from among bar members by the relevant bar association. The commission must be quorate when it convenes and its decisions shall be taken by an absolute majority of the number of participants at the meeting. The working principles and procedures of the commission shall be regulated by a regulation.” 47. In accordance with section 5, the compensation commissions’ duties mainly involve the determination of damage suffered by claimants and the preparation of friendly-settlement declarations (sulhname) for payment of compensation to the claimants in cash or in kind. In this respect prior aid received from public funds is deducted from the amount to be paid to the claimants. In case of a disagreement about the terms of the friendlysettlement declaration, the compensation commission prepares a protocol of non-agreement to be sent to the complainant. 48. Under section 6, anyone who has suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism can lodge an application with the relevant compensation commission claiming compensation. The application must be lodged within sixty days of the date on which knowledge was obtained of the incident causing damage and, in any event, within one year of the impugned incident. The compensation commission must reach a decision within a maximum period of six months after the application is lodged. Where necessary, this period can be extended by the governor for another three months. 49. Under section 8, in determining the compensation payable, the compensation commissions will take into account the damage declared by the claimants, the information to be provided by the legal, administrative and military authorities, the circumstances of the incident causing the damage and, if applicable, the negligence of the claimants. In accordance with an amendment introduced by the Council of Ministers on 15 September 2005, the claimants can prove their allegations by means of any information or document. The commissions determine the amount of compensation on the basis of equity and current economic conditions. Expert opinion can also be obtained with a view to determining whether compensation should be awarded. 50. Under section 12, following the determination of the amount of compensation payable the compensation commission prepares a friendlysettlement declaration and serves it on the claimant in an annex to a letter stating that the claimant must apply to the commission to sign the declaration within thirty days of receipt and that failure to appear will be deemed to be a refusal by the claimant, in which case, he or she will have to apply to the courts for compensation. Should the claimant accept the terms of the settlement declaration prepared by the commission, the declaration must be signed by the claimant or his or her representative and by the president of the commission. If the claimant refuses to sign the declaration or is deemed to have refused the terms of the declaration, a protocol of nonagreement must be prepared and sent to the claimant, following which the claimant can bring an action for compensation in the courts. 51. Section 13 provides that after the parties have signed the friendlysettlement declaration and the governor has approved it, the amount of compensation specified in the friendly-settlement declaration shall be paid within three months from an appropriation earmarked in the budget of the Ministry of the Interior. Following payment of the compensation, the State has a right to bring proceedings against the perpetrators of the acts which caused the damage in question. 52. Finally, Section 14 provides that the compensation commissions are subject to the supervision of the Ministry of the Interior and the relevant Governor. 53. On 20 October 2004 Regulation no. 25619 was issued by the Council of Ministers for the implementation of Law no. 5233 on Compensation for Losses resulting from Terrorism and the Fight against Terrorism. This regulation sets out the duties of the compensation commissions, the procedure to be followed by/before the compensation commissions and the assessment and payment of compensation for damage to life, physical integrity and property. 54. A description of the further relevant domestic law at the material time and background information can be found in the Court’s judgment of Doğan and Others (cited above, §§ 68-88).
| 0
|
train
|
001-58133
|
ENG
|
SWE
|
CHAMBER
| 1,998
|
CASE OF ALLAN JACOBSSON v. SWEDEN (No. 2)
| 3
|
No violation of Art. 6
| null |
7. The applicant is a Swedish citizen, born in 1927, and living in Tullinge, Sweden. In 1974 he bought a property of 2,644 sq. m, Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south-west of Stockholm. On the property there is a one-family house. 8. When the applicant bought the property it was covered by a so-called subdivision plan (avstyckningsplan), adopted in 1938. According to this plan no building could be constructed on a plot of less than 1,500 sq. m until sufficient water and sewerage facilities had been provided for. Such facilities appear to have been built at the end of the 1960s. The property was also covered by an area plan (områdesplan), adopted in 1972, which described the property mainly as a public area containing open spaces, streets and car parking, and by a building prohibition made pursuant to section 35 of the Building Act (byggnadslagen) 1947 and issued on 26 August 1974. 9. The first building prohibition under the Building Act 1947 was issued by the County Administrative Board (länsstyrelsen – “the Board”) of the Stockholm County as far back as September 1965 and was valid for one year. This prohibition was subsequently prolonged by the Board for one or two years each time. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Planning and Building Act 1987 (Plan- och bygglagen – “the 1987 Act”) replacing the Building Act 1947, the existing system for prohibition on construction was abolished and replaced by a possibility for the Building Committee (byggnadsnämnden) to defer its decision on an application for a building permit, or a preliminary opinion on an application, for a maximum period of two years. 10. Ever since he bought the property in question the applicant has tried in vain to obtain from the competent authorities a permit to divide his plot and/or to build, in addition to the existing house, more houses on it. On 28 July 1975 the Building Committee of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots, referring inter alia to the area plan adopted in 1972 (see paragraph 8 above). 11. On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant’s property was earmarked for blocks of flats of more than two storeys. On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that having regard to the master plan it was not prepared to grant him either an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was invalid. The Board rejected the appeal on 25 April 1980, stating inter alia that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979. 12. On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant’s property is situated should be used for the construction of multi-family housing in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect. 13. On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant’s appeals against this were, as before, unsuccessful. 14. On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant’s property. This plan mentioned the possibility of using the area for single or multi-family housing development. 15. The proceedings and the interference with the applicant’s enjoyment of his possessions referred to above formed the subject matter of the Allan Jacobsson v. Sweden judgment of 25 October 1989 (Series A no. 163). In that case the Court concluded that there had been no violation of Article 1 of Protocol No. 1. On the other hand, it found that there had been a violation of Article 6 § 1 of the Convention in that the applicant did not enjoy a right to a court to enable him to challenge the decisions whereby the building prohibitions on his property were maintained in force. 16. On 9 July 1987, while the above case was pending before the Convention institutions, the applicant requested under the 1987 Act (which had entered into force on 1 July 1987) a preliminary opinion from the Building Committee on whether a permit to build a house on his property could be granted. On 13 October 1987 the Building Committee decided, however, pursuant to the rules laid down in the 1987 Act, to defer its decision on the request for a period of two years (see paragraph 26 below). It informed the applicant that a building permit could not be expected for the time being. 17. On 21 June 1989, before the expiry of the above two-year period the Salem Municipal Assembly revoked the detailed development plan (previously called a subdivision plan) which had been in force since 1938 (see paragraph 8 above). 18. Following this decision the Building Committee confirmed, on 11 September 1990, its preliminary opinion of 13 October 1987 rejecting the applicant’s request for a building permit. In its reasons the Committee referred to the need for a new detailed development plan and to the Municipality’s intention to earmark the land for single or multi-family housing development in accordance with the area plan adopted in 1986 (see paragraph 14 above). The applicant did not appeal against this decision. 19. In the meantime, however, the applicant had lodged an appeal with the Administrative Court of Appeal (kammarrätten) of Stockholm against the Municipal Assembly’s decision of 21 June 1989 revoking the 1938 plan. On 6 July 1989 the Court declined to entertain the appeal on the grounds that, under the 1987 Act, the County Administrative Board was the competent body. Leave to appeal against this decision was refused by the Supreme Administrative Court (regeringsrätten) on 20 September 1989. 20. Subsequently the applicant lodged an appeal with the Board. He observed that under Chapter 8, section 23, of the 1987 Act, a decision (on building permission) could be postponed if work had been initiated to amend, revoke or adopt a plan. However, in the present case, such steps had only been taken nineteen days before the expiration of the two-year period within which the planning measure should be completed (see paragraph 26 below). Moreover, he maintained that the above-mentioned provision had only authorised alternative measures, not a combination of measures which, as here, consisted of a revocation of a plan in order to amend it or adopt a new plan. By proceeding in this manner, the Municipality had circumvented the legal time-limit for consideration of his request for a building permit. The applicant further pointed out that a revocation should comply with, inter alia, Chapter 1, section 5, of the 1987 Act which requires the authorities to take into consideration both private and public interests (see paragraph 26 below). The applicant invited the Board to find that the revocation of the detailed development plan was to be considered as a real revocation, not as a method of prolonging the time-limit for deciding on his application for a building permit. In the alternative, he requested that his application be examined without undue delay. 21. On 7 September 1989 the Board rejected the appeal and upheld the revocation by the Municipal Assembly of the detailed development plan of 1938, giving the following reasons: “The area is covered by a detailed development plan, approved by the County Administrative Board on 16 September 1938. Pursuant to Chapter 17, section 4, of the 1987 Act the implementation period for the plan is to be considered as having elapsed. In such circumstances the municipality has a strong position in respect of the right to revoke a detailed development plan, something which has been exemplified by the fact that the revocation may be decided without the rights which derived from the plan being taken into consideration (Chapter 5, section 11, subsection 2, of the 1987 Act). This presupposes that public interests militate in favour of revocation. The existence of such interests has been expressed by the issuing of an area plan for Östra Rönninge. The review of issues under the 1987 Act must take into consideration both public and individual interests, unless otherwise has been specifically provided. The above provision is an example thereof. The meaning of this provision is that the person who has obtained a right according to the plan cannot rely on it during the examination of whether the plan should be repealed. However, when it comes to examining the contents of a new plan the main rule in Chapter 1, section 5, concerning the individual’s interests must obviously be considered, but even in these circumstances it is not required that the rights under the old plan must be respected. As regards the adoption of a new plan, the 1987 Act does not constitute an obstacle to the adoption being preceded by a revocation of a detailed development plan. The possible result of an examination of a request for a building permit in respect of a new construction on Salem 2[3]:1 following revocation of the detailed development plan cannot be examined in this case. The applicant’s submissions in support of his appeal do not provide a reason for refusing the implementation of the decision appealed against.” 22. The applicant appealed against this decision to the Government, which, on 14 June 1990, rejected it on the grounds that they agreed with the assessment made by the County Administrative Board. 23. In accordance with the provisions of the 1988 Act on Judicial Review of Certain Administrative Decisions (lag 1988:205 om rättsprövning av vissa förvaltningsbeslut – “the 1988 Act”) the applicant challenged the Government’s decision in the Supreme Administrative Court. He also requested the court to examine a request for a building permit and to hold an oral hearing. The applicant stressed that, according to Chapter 8, section 23, of the 1987 Act, where steps had been taken to draw up, amend or revoke a detailed development plan, the Building Committee could, pending the completion of the planning measure, postpone its decision on a request for a building permit. If the Municipality had not completed the measure within a period of two years, the request should be decided without delay. It followed from this provision that a prolongation of the said period could not be made by means of revocation of the plan. Moreover, the Municipality had not been free to opt for both revocation and either amendment of the plan or adoption of a new plan. In the applicant’s view, whilst the plan in question had been revoked with a view to adoption of a new plan, the measure fell to be considered as an amendment of the plan. Since the amendment had not been effected within the two-year time-limit, the Municipality had not been permitted both to amend and revoke the plan. Revocation of the plan was meaningless as Chapter 5, section 11, did not apply to a detailed development plan the completion of which had not been subjected to any time-limit. Contrary to what the Board and the Government had suggested, Chapter 1, Section 5, should apply in his case. In view of these considerations, the applicant requested that the Government’s decision be quashed and that his application for a building permit be examined without further delay. 24. On 11 November 1990 the Supreme Administrative Court, without holding an oral hearing, rejected the applicant’s complaints against the Government’s decision. The Court held: “According to section 1 of the [1988 Act] the Supreme Administrative Court must, at the request of a private party in certain administrative matters dealt with by the Government or an administrative authority, examine whether the decision is contrary to any legal rule. In the present case the examination concerns the Government’s decision of 14 June 1990. In this decision the Government rejected an appeal lodged by [the applicant] against a decision of the County Administrative Board of Stockholm to uphold a decision to revoke [the 1938 detailed development plan] concerning a land area within the Municipality of Salem. This means that the Supreme Administrative Court cannot in the present proceedings examine [the applicant’s] request to be granted a building permit. The Supreme Administrative Court dismisses [avvisar] this request and rejects the request for a public oral hearing. As regards the question whether the revocation of [the 1938 plan] is contrary to any legal provision, it can be established that the plan, according to Chapter 17, section 4, of the 1987 Act, was to be regarded as a detailed development plan with regard to which the implementation period had elapsed. According to Chapter 5, section 11, of the 1987 Act such a plan may be amended or annulled without regard to the rights which may have accrued during the plan’s existence. The latter provision constitutes an exception to the main rule in Chapter 1, section 5, of the 1987 Act that consideration must be given to both public and private interests when examining issues under the 1987 Act (see Government Bill 1985/86:1 pp. 175 and 464). The facts of the case do not indicate that the revocation of the plan is contrary to Chapter 5, section 11, or Chapter 1, section 5, of the 1987 Act or to any other provision in the law. The decision is upheld.” 25. The Planning and Building Act which entered into force on 1 July 1987 contains provisions about the planning of land and water areas as well as building. Their purpose is to promote a development of society characterised by equal and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1). 26. The provisions of the 1987 Act which have been invoked in the present case read as follows: “Chapter 1 – Introductory provisions … Section 5. When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise prescribed. … Chapter 5 – Detailed development plans and area regulations Section 1. The examination of the suitability of a site for development and the regulation of manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to new continuous developments; 2. new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or a provisional opinion. … Section 5. The detailed development plan shall contain a time-limit for development. This time-limit shall be fixed in such a way that there is a reasonable chance of the plan’s implementation taking place within at least five and at most fifteen years. ... When the time-limit expires, the plan will continue to be valid until it is amended or annulled. … Section 11. Before the expiry of the implementation period a detailed development plan may only be amended or annulled contrary to the wishes of the property owners concerned when this is required as a result of new conditions of great public importance and which could not be foreseen when the plan was drawn up. When the implementation period has elapsed, the plan may be amended or annulled without regard to the rights which may have accrued during the plan’s existence... … Chapter 8 – Building permit, demolition permit and site improvement permit … Section 23. If authorisation has been requested for the expropriation of a building or land in respect of which a permit has been sought, or if work has been initiated to adopt, amend or annul a detailed development plan, area regulations or property regulation covering the building or land, the Building Committee may postpone its decision regarding the permit until the expropriation issue has been solved or the planning work has been completed. If the municipality has not completed the planning work within two years from the Building Committee’s receipt of the application of a permit, the application shall be dealt with without further delay. … Chapter 17 – Transitional provisions … Section 4. Town development plans and rural development plans adopted under the Building Act (1947:385) or the Town Planning Act (1931:142), older types of plans and regulations referred to in sections 79 and 83 of the latter act as well as subdivision plans, which are not covered by a directive issued in accordance with section 168 of the Building Act, shall be regarded as a detailed development plan in accordance with this Act. Subdivision plans, to the extent they are covered by the above-mentioned directives, will cease to be valid with the coming into force of this Act. With regard to town development plans and rural development plans which have been adopted before the end of 1978, the implementation period will be considered, in accordance with section 5, subsection 5, to be five years from the date of their gaining legal force. For other plans and regulations, referred to in the first subsection, the implementation period will be regarded as having elapsed. Unless otherwise prescribed in a plan or regulation which, according to the first subsection is to be regarded as a detailed development plan in accordance with this Act, section 39 in the Building Ordinance (1959:612) shall apply as a regulation in the plan.” 27. The Act on Judicial Review of Certain Administrative Decisions 1988 was introduced as a result of the European Court of Human Rights’ findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time. 28. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3, of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case. 29. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23–24), its review of the merits of cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case. 30. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority. 31. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996, section 3(a) of the 1988 Act provided that in matters of judicial review the Supreme Administrative Court should hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.
| 0
|
train
|
001-97155
|
ENG
|
ARM
|
CHAMBER
| 2,010
|
CASE OF ASATRYAN v. ARMENIA
| 3
|
Violation of Art. 5-1-c;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Non-pecuniary damage - award
|
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
|
4. The applicant was born in 1960 and lives in Yerevan. 5. On 23 September 2005, at 5.50 p.m., the applicant was taken into custody on suspicion of attempted murder. 6. On 26 September 2005 formal charges were brought against the applicant. 7. On the same date the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the investigator’s relevant motion and ordered the applicant’s detention on remand for a period of two months, to be calculated from 23 September 2005. 8. On 14 November 2005 the investigator filed a motion with the District Court, seeking to have the applicant’s detention on remand prolonged for another two months. 9. On 22 November 2005 the District Court examined and dismissed this motion. This decision was subject to appeal. 10. On 23 November 2005 at around 11 a.m. a copy of this decision was presented by the applicant’s lawyer to the Chief of the Yerevan-Kentron Detention Facility («Երևան-Կենտրոն» քրեակատարողական հիմնարկի պետ) where the applicant was held. 11. On the same date the prosecutor lodged an appeal against the above decision. 12. Later that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) commenced the examination of the prosecutor’s appeal. The applicant was escorted to the hearing by four national security officers in an official car. 13. At 5.45 p.m. the applicant’s lawyer arrived and requested a ten-minute recess to be able to consult with the applicant. The Government alleged that the lawyer was deliberately late for the hearing, while the applicant claimed that her lawyer was informed by telephone about this hearing only at 5.30 p.m. 14. At 5.50 p.m. the applicant’s detention period authorised by the decision of 26 September 2005 expired. 15. Following the recess, the lawyer challenged the impartiality of the bench. He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms. Furthermore, there were four national security officers in the court building who prevented the applicant, who was formally already at liberty, from going out of the building. Thus, the fact that such things were happening in the building of the Court of Appeal suggested that the outcome of the proceedings was already pre-determined. 16. The court departed to the deliberation room to examine this challenge, after which it returned and announced its decision dismissing it. 17. Thereafter another twenty-minute recess was announced by the court for the defence to be able to familiarise itself with the prosecutor’s appeal and the materials of the case. During the recess an ambulance was called because the applicant felt unwell. Her blood pressure rose to 180/100 but no injections could be administered as she was allergic, so the doctor recommended adjourning the hearing. 18. The hearing resumed at 8.03 p.m. The applicant’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant’s health and in order for him to be able to familiarise himself with the prosecutor’s appeal in adequate conditions. The court granted this request and adjourned the hearing until 1 p.m. on 24 November 2005. 19. The court hearing was over at around 8.30 p.m. 20. The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by four national security officers and was not allowed to move freely, to leave the courtroom during the breaks or to go home. After the court hearing was over, she was forcibly taken by these officers and pushed into the same car and taken back to the Yerevan-Kentron Detention Facility. This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room. 21. On 24 November 2005 at 1 p.m. the Court of Appeal resumed the examination of the prosecutor’s appeal. The applicant was not present at this hearing. 22. The applicant’s lawyers again challenged the impartiality of the bench, alleging that the court had manifested a biased attitude. In particular, the court summoned a hearing on the prosecutor’s appeal immediately before the expiry of the applicant’s detention period. Furthermore, the court did not release the applicant despite the fact that her detention had not been prolonged. Finally, after the hearing was over, the presiding judge departed to the deliberation room where he had a consultation with a national security officer, as a result of which it was decided to keep the applicant in detention. Thereafter she was transported to a national security isolation cell. The lawyers claimed that all the above suggested that the Court of Appeal was not impartial. 23. The court examined and dismissed this challenge. 24. Thereafter, one of the applicant’s lawyers made a declaration stating that, following the court hearing of 23 November 2005, the applicant had been taken away by national security officers in an unknown direction, despite the fact that she was already free by virtue of the law. The lawyers refused to participate in the hearing in such circumstances and left the courtroom. 25. The Court of Appeal examined the prosecutor’s appeal in their absence and decided to quash the decision of the District Court of 22 November 2005 and to prolong the applicant’s detention on remand for another two months. 26. On 28 November 2005 one of the applicant’s lawyers addressed a letter to the Chief of the Yerevan-Kentron Detention Facility, complaining: “... You ..., as the chief of administration of the detention facility where [the applicant] is kept, at 5.45 p.m. on 23 November 2005 not only did not release her, but had her escorted to court by four officers in an official car having State licence no. 150 SS 02, during the entire [court hearing] you monitored her actions until 8.30 p.m. on [that date], forbidding her to move freely, and at around 8.30-8.45, with the assistance of the same officers, you forcibly (holding her arms, pushing her) placed her in the above car and transported her to the Yerevan-Kentron Detention Facility where you received her, according to the information at our disposal, without a relevant court decision. In that period (between 9 p.m. and 11 p.m.) the defence called you on numerous occasions and you stated that you would keep [the applicant] until the court hearing scheduled for 1 p.m. on the next day was over...” 27. On 5 December 2005 the applicant’s lawyers lodged an appeal on points of law against the Court of Appeal’s decision. In their appeal, they again complained about the fact that the applicant had not been released from custody on 23 November 2005. 28. On 8 December 2005 the applicant’s lawyers made a similar declaration addressed to the Prosecutor General. 29. By a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the appeal since it was no longer competent to examine it following the constitutional amendments. 30. The relevant provisions of the CCP read as follows: “5. The court, the body of inquest, the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty. The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired.” “2. Detention ... shall be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case...” “5. The court’s decision to choose detention as a preventive measure can be contested before a higher court.” “1. The accused’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest... ... 3. In the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code... 4. In the pre-trial proceedings of a criminal case the accused’s detention period can be prolonged by a court for up to one year in view of the particular complexity of the case.” “1. If it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, if it agrees on the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period. ... 3. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.” “The administration of a detention facility is obliged: ... (10) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired.” “1. The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case, if: ... (4) when deciding on the question of detention, the detention period set by the court has expired and has not been prolonged... ... 3. ... In cases envisaged under [sub-paragraph 4] of paragraph 1 of this Article ... the chief of administration of the detention facility shall immediately release the detainee.” “2. A court decision imposing a preventive measure can be contested before the court of appeal.” 31. The relevant provisions of the Law read as follows: “An arrested or detained person is entitled to ... lodge applications and complaints, both himself and through his lawyer or lawful representative, with ... the courts...” “...[C]omplaints ... addressed to ... a judge ... shall be sent to [him] in a sealed envelope within one day.”
| 1
|
train
|
001-59155
|
ENG
|
GBR
|
GRANDCHAMBER
| 2,001
|
CASE OF BEARD v. THE UNITED KINGDOM
| 2
|
No violation of Art. 8;No violation of Art. 14
|
Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza
|
10. The applicants are gypsies by birth. All their lives, they have moved between official sites and unofficial stopping places, mostly in the Lancashire area. 11. The applicants regard themselves as being Lancashire folk. The first applicant is a carpet seller and does most of his business in Lancashire. Both their children were born in Lancashire, and at present their daughter lives with them and works nearby. Their son travels independently, but stays with them frequently. 12. Over the ten years before 1986, the applicants had to move between a number of sites in Lancashire, often staying in unofficial stopping places. As they wanted to set up a family site, in 1986 they bought a piece of land, known as Cinderbarrow Malt Kiln, Yealand Redmayne, Carnforth in Lancashire. The site is 0.365 hectares in area, and is positioned in the countryside between the M6 motorway and the London-Carlisle railway line. When the applicants bought it, they stated that it was generally regarded as being an eyesore. They referred to letters from local residents describing the site as having been used for car breaking and tipping rubbish, being littered and infested with rats. They spent two years cleaning it up and developing it. The Government disputed this assertion, stating that local authority records indicate that it was after the applicants had occupied it that complaints were received about its condition. They stated that the land was previously used for grazing and growing crops. 13. In August 1991, the applicants moved onto the site and on 17 September 1991 they applied for planning permission to Lancaster City Council (“the Council”) for a small close-knit gypsy family site for six caravans. 14. On 18 October 1991, they were prosecuted in Lancaster Magistrates' Court for being on the land unlawfully. They were convicted and fined 75 pounds sterling (GBP). 15. On 11 November 1991, the applicants' planning application was refused, by letter, on the grounds of adverse effect on highway safety and impact on visual amenity. On 17 December 1991, the applicants submitted an appeal to the Secretary of State. 16. On 18 December 1991, they were served with an enforcement notice requiring them essentially to move the caravans off the land and to reinstate the land to its former condition. They were given 56 days to comply with the latter condition. 17. On 30 December 1991, the applicants submitted a further appeal against the enforcement notice. 18. On 9 June 1992, a public local inquiry was held to consider both appeals. These appeals were heard by an Inspector appointed by the Secretary of State for the Environment. 19. On 9 September 1992, these appeals were dismissed. In his report, the Inspector stated inter alia: “9. Planning policies for the area are contained in the 1990 Lancashire Structure Plan. Policy 6 seeks to limit development of land in the open countryside outside the Green Belt to that needed for the purposes of agriculture and forestry, or other uses appropriate to a rural area. ... Policy 14 refers to Areas of Special Landscape, the appeal site is within such an area. The object is to safeguard such areas from development that is not in keeping with the special character of the landscape and is a of a standard of design appropriate to the area. The site is in an area of open countryside, it is undulating pasture land with a few buildings in the locality and can be seen from a number of public viewpoints, including the canal towpath close at hand, and further afield, from points along Tarn Lane. In my opinion, the appearance of 6 caravans on the site would cause serious harm to the character of the landscape and be in conflict with Policy 14, even allowing for the proximity of the site to Cinderbarrow Cottage. ... 11. By all accounts the land was overgrown until 1990 or thereabouts; it is not overgrown now but I consider that the harm caused to the character of the area by using the site for stationing 6 caravans for residential purposes materially outweighs any benefits that may have accrued from <the applicant's> cleaning up operation. Hedging can reduce the visual impact of a development, <the first applicant> proposed to plant hedging along 3 of the boundaries and he has already done some of this. The types of hedging which are characteristic of the area would not provide much in the way of screening for many years, <the applicant's> approach is to plant quick growing conifers but I share the Council's view that these are not in keeping with the character of the area. 12. With regard to highway safety, you suggest that a common sense view be taken. Cinderbarrow Lane is an unclassified road approximately 2 km long, it is narrow for much of its length and contains a number of bends. In many places, 2 cars could not pass. The hedges along the lane obstruct the visibility at bends, alterations in the hedge line along the site would be a help but in my view such alterations would not go far towards improving the overall situation. The land leads to the A6070 at one end where visibility is significantly below the standards recommended in Planning Policy Guidance Note 13. At the other end, access to and from the A6 can be obtained via Tarn Lane, where visibility at the junction is adequate, and directly along Cinderbarrow lane; the visibility of the junction of this land with the main road is significantly below the recommended standards. <The first applicant> says he uses only the Tarn Lane junction, but I consider that others may well use the other junctions either because of convenience or because they do not appreciate the different standards of visibility at the 3 junctions. ... 14. Cinderbarrow lane and its junctions with the main roads clearly have hazards for traffic. <The first applicant's> use of the appeal site adds to those hazards, in my opinion, because of the increase in the number of traffic movements likely to result from the use and the increased likelihood of vehicles having to be reversed when meeting vehicles coming the other way. I accept that caravans are not likely to be towed onto and off the site on many occasions each year, and if that were the only consideration I would not have regarded the implications for highway safety to be so unacceptable as to warrant a refusal of permission. It is, however, one of a number of drawbacks and I consider that, overall, the highway objection is sustained. 15. The effect of Section 54(A) of the 1990 Act is that the determination of these appeals shall be made in accordance with the development plan, unless material considerations indicate otherwise. The development plan in this case is the Lancashire Structure Plan and on the basis of the evidence I consider that <the first applicant's> development does not accord with it. Highway safety is a material consideration but it is one, which in my view, weighs against his case. A further material consideration, an important one, namely a special need for accommodation to be provided for gypsies, remains to be considered. 16. <The first applicant's> gypsy status is not a matter of dispute, nor is the fact that, since April 1987, the Council's district is designated under the provisions of the Caravan Sites Act 1968, ..., as an area where adequate provision has been made for gypsies residing in, or resorting to the area. Circular 28/77 emphasises, at paragraph 23, that the additional power accruing from a designation order should be seen by Local Authorities as a means of ensuring that gypsies use the accommodation available to them rather that as a means of avoiding the need to provide further sites. Authorities may also have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area. The Council say that provision has been made over and above that which led to the area being designated. Fourteen additional residential pitches and 4 pitches for touring caravans have been provided on 4 private sites ... The Council's own site at Mellishaw Park has 20 double pitches and can, therefore, accommodate 40 caravans. 17. The larger picture for the County is that, under Policy 11 of the Structure Plan and in the context of residential development, the aim is to provide land for caravan sites for gypsies within, or close to, the main urban areas. There are 5 permanent gypsy sites in the County, including the one at Mellishaw Park. The County Council are actively pursuing the provision of 3 further sites, none of which are in Lancaster. 18. The half-yearly count of gypsy caravans since January 1990 discloses that there have been spaces available on authorised sites on every count, except the last one in January 1992. In July 1991, during the period when <the first applicant> was evidently clearing up the appeal site prior to moving onto it in August, the Council say there were 21 vacancies on authorised sites. The Council also say that on the day before the inquiry there were 17 vacancies. 19. In my view the special need for accommodation to be provided for gypsies is not so weighty in the present case as to outweigh the harm caused to the character of the area and the adverse effects on highway safety. 20. <The applicants> put forward a number of reasons why they did not wish to go onto authorised sites in the area. Some of the reasons related to incidents in recent years which led them to embrace the concept of self-help and moving onto the appeal site, which they bought in 1986. I have accorded some weight to these matters but I remain of the opinion that the Council's case is the one that should prevail. ...” The time period for compliance was extended to 6 months. The Inspector also revoked the condition of returning the land to its former condition finding it excessive due to the tidying work carried out by the applicants. 20. The applicants did not appeal against this decision to the High Court, as such appeals can only be made on limited grounds (see paragraph 38). 21. The applicants tried unsuccessfully to find an alternative site both in the Lancashire City Council area and in the nearby Cumbria City Council area. They were offered places on an authorised site, Mellishaw Park, which they turned down for strong personal reasons, namely, since this particular site was occupied by a large, violent gypsy family who had attacked them on more than one occasion. In May 1992, the first applicant received serious injury, being beaten with a baseball bat and being showered with glass as his car was smashed. His assailant was convicted of actual bodily harm. The applicants were advised by the police to stay away from the area. 22. On 28 May 1993, the applicants were prosecuted in Lancaster Magistrates' Court and given a conditional discharge for one year, which would expire on 28 May 1994. 23. On 7 June 1993, they applied for planning permission for a smaller gypsy site which would consist of one mobile home and a transit pitch. 24. On 19 July 1993, their application was refused and they appealed against this decision. 25. On 21 December 1993, a public local inquiry was held. On 25 January 1994, the appeal was dismissed again, on grounds of visual amenity and adverse effect on highway safety. Even though the applicants had offered to provide whatever form of screening was necessary, the Inspector considered that an effective screen would take too long to establish and would look alien. The use of the site for the stationing of a caravan and the addition of a second would “seriously harm the character and appearance of the surrounding area”. He gave weight to the highway authority evidence that the exit from Cinderbarrow Lane to the A6 suffered from lack of visibility. While he noted that the applicants'submission that they could use the alternative exit in Tarn Lane, he considered that the greater convenience of the shorter route would be likely to encourage its regular use. Given the lightly trafficked nature of the road, he did not find this to be a crucial matter however. As regarded the needs of the applicants, he stated: “11. Since 1987 Lancaster District has been designated under the provisions of the Caravan Sites Act 1968, as amended, as an area where adequate provision has been made for gypsies residing in or resorting to the area. The current level of authorised provision within the district is 100 caravan pitches of which 20 pitches are on a council-owned site. Surveys taken during 1993 show that an average of 29 vacancies existed each month on private sites in the district, and an average of 7 vacancies on the council owned site. 12. Circular 28/77 states that it may be necessary to accept the establishment of gypsy sites within areas of open land where the land use policies which apply are severely restrictive to development, but in such cases there will be a special obligation to ensure that the arguments in favour of a departure from the development plan are convincing. <The applicants> put forward reasons why they did not wish to go to authorised sites in the area. Although these reasons were understandable, these are essentially personal reasons which do not, in my opinion, outweigh the harm caused to the character of the area and the adverse effects on highway safety. In my judgment the provision made within the district and the site availability revealed by survey is sufficient for me to conclude that the special need for accommodation to be provided for gypsies is not so weighty in this case as to justify a departure from established planning policy.” 26. In June 1994, further prosecution was adjourned to 7 October 1994. On that date, the applicants were convicted of failing to comply with the enforcement notice and were fined GBP 300 plus costs. 27. In January 1995, the applicants appeared once more in the magistrates' court charged with failing to comply with the enforcement notice. The proceedings were adjourned until 12 May 1995, when the applicants elected to be tried in Preston Crown Court by judge and jury. At a hearing on 8 December, the applicants were directed by the judge that they had no alternative but to plead guilty as they did not have a defence to the charges. He deferred sentence and granted leave to appeal to the Court of Appeal. On 10 May 1996, the Court of Appeal dismissed the appeal, inter alia, endorsing the judge's finding that: “Subsection 3 <of the Town and Country Planning Act 1996> is not concerned with a balance of social factors. It is not concerned with the policy issues as arise in relation to the circumstances in which gypsies live.” 28. The case was remitted to the Crown Court judge, who took the view that there was “powerful mitigation” and sentenced the applicants to a fine of GBP 150 and GBP 100 costs. He observed that it would have been inappropriate to commence a third prosecution and that it would have been more appropriate to commence civil injunctive proceedings in the County Court. 29. On 14 October 1996, the Council decided to take injunctive action against the applicants. At the hearing on 27 February 1997, the County Court had before it an affidavit from the first applicant and two affidavits from the Council. In the affidavit of Mr Dennison for the Council, it was accepted that the applicants had not been able to secure accommodation within the area for their caravan elsewhere but it was suggested that insufficient efforts had been made. In his affidavit, to which were annexed refusals from 25 sites, the first applicant stated that: “Since 1992 my wife and I have been making extensive enquiries about alternative situations... It is wrong for the Council to suggest that we have only tried holiday sites thereby implying that we knew they would fail; to the best of my knowledge and belief all the sites we tried had some residential accommodation. We repeated these efforts prior to the most recent proceedings.” 30. Due to the pressure of the proceedings, the first applicant made an undertaking to the Court to remove his caravans from his land and to break up the hard surface laid out on the land by 1 January 1998. On 26 August 1997, the applicants applied for a variation of the undertaking, seeking an extension of the time for compliance as they had been unable to find anywhere else to site their caravan and due to the first applicant's ill health. The second applicant submitted in an affidavit to the County Court that they had made continuous and strenuous enquiries since February 1997, but had been met with refusals – letters from 22 sites were enclosed. The application was refused and the applicants ordered to pay the Council's costs. 31. On 7 November 1997, the Council served on the first applicant a “Notice to Show Good Reason why an Order for Your Committal to Prison should not be made” which applied for the first applicant to be committed to prison. At the hearing on 14 November 1997, the judge committed the first applicant to prison for three months but suspended the imprisonment on condition that the applicant complied with his undertaking by 21 February 1998. Counsel's notes of the judge's judgment indicated that the order was made to enforce the law as fining had achieved nothing – “If it means that the applicants have to seek something other than static caravan accommodation, so be it”. In order to avoid committal and the ensuing deleterious consequences on the first applicant's health and the applicants' family, the applicants vacated their land and are currently without a fixed address. They have been unable to find alternative accommodation elsewhere. 32. As regards the availability of pitches elsewhere, the Government submitted that during the period of May 1993–June 1995 12 vacancies arose on Mellishaw Park, the official site in the district. There was a waiting list but the applicants would only have had to wait 4–6 months for a vacancy to occur. The conditions on this site were closely monitored by weekly inspections by a resident warden. In the local authority's area, there were also, according to the figures given to the Commission by the Government, space for 99 caravans on seven authorised private sites, where there were currently 31 vacant pitches and a further 107 private authorised/touring and residential sites, comprising, respectively, 4,834 and 561 pitches, with substantial numbers of vacancies. Some of these sites were used by travellers particularly in the winter months. The applicants stated that these sites are largely seasonal for tourists and that gypsies were not welcome. Only one of them has been designated as official gypsy site but is still inhabited mostly by non-gypsies. This site had 40 pitches. According to the 1999 statistics of the Department of the Environment however, the number of authorised private sites had increased by six (from 68 to 74), while the number of public sites had decreased by the same number (from 25 to 19). However, the total number of unauthorised encampments in the area had almost doubled from 11 to 21. II. RELEVANT DOMESTIC LAW AND PRACTICE 33. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). 34. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). 35. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). 36. If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). 37. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. 38. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. 39. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). 40. Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as: “persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”. 41. Section 6 of the 1968 Act provided that it should be the duty of local authorities: “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. 42. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 43. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act). 44. The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). 45. In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of section 10. 46. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”). 47. Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: “Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.” 48. The report made numerous recommendations for improving this situation. 49. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. 50. Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [gypsies'] applications for planning permission and site licences”. Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area. 51. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone's advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”. 52. In addition, approximately GBP 100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 53. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. 54. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner's consent”. 55. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates' court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 56. In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that: “For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils... For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used. The culmination of the tensions underlying the history of non-compliance was the enactment of ...the Act of 1994...” 57. New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above). Councils were told that: “In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para. 20) However: “As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22). It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13). 58. Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments: “6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies' presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 59. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. 60. In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and that detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government's objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process. 61. The Advisory Council for the Education of Romany and Other Travellers (ACERT), which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in this report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected. 62. The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively. 63. The report stated that the figures for success rates in the 624 planning appeals looked at showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable. 64. In January 2000, the Department of the Environment, Regions and Transport's survey on gypsy caravans in England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites. 65. Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation. 66. This Convention, opened for signature on 1 February 1995, provides inter alia: “Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.” 67. The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe's 41 member states and ratified by 28. 68. The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition. 69. Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia: “6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7. Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.” Its recommendations included: “xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; ... xviii. further programmes should be set up in the member states to improve the housing situation, education... of those Gypsies who are living in less favourable circumstances. ...” 70. In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included: “... to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of ... housing and education. ... ... to ensure that the questions relating to 'travelling' within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; ...” 71. On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe's Gypsy population still lives at the present time.” 72. Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe's Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities' recommendations. 73. The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments – the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities – also concerned protection of Roma and Sinti as minorities. 74. On 7 April 2000, the High Commissioner's Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report deals with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma are now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization: “It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSC participating States have at times breached this principle, either by making a determination of a group's fundamental lifestyle that is inconsistent with its members' choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99) 75. The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need: “... The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109) 76. The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found: “Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property...” (pp. 112-113). 77. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated: “... This scheme allows wide ply for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as 'a daunting one laced with many opportunities for failure'. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. ... In face of these difficulties, the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114) 78. The report's recommendations included the following: “... in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162)
| 0
|
train
|
001-106653
|
ENG
|
UKR
|
COMMITTEE
| 2,011
|
CASE OF KYRYLYUK v. UKRAINE
| 4
|
Violation of Art. 6-1
|
Angelika Nußberger;Ganna Yudkivska
|
4. The applicant was born in 1972. 5. On 24 May 2005 the police instituted criminal proceedings against him on suspicion of fraud. Subsequently, additional charges were brought against the applicant (unlawful acquisition of a vehicle, money laundering and forging documents). Since 6 September 2005, he has remained in detention on remand. 6. Following the completion of the pre-trial investigation, on 24 March 2006 the case was transferred to the Solomyanskyy District Court of Kyiv, which on 24 November 2008 delivered a judgment. 7. On 27 April 2010 the Kyiv City Court of Appeal quashed that judgment and remitted the case for fresh examination to the Solomyanskyy Court, before which the proceedings are still pending. 8. According to the Government, in the course of the proceedings fifty four witnesses and four victims were interrogated, questioned or confronted, some of them repeatedly. This took the authorities about three months in total. Seven forensic examinations were ordered and lasted for about five months in total. Nine hearings were adjourned due to the applicant’s and two other co-defendants’ representatives’, victims’ and witnesses’ failure to appear. The applicant disagreed stating that his representative had not been informed of the hearings which he had not attended. One hearing was adjourned on the applicant’s request. Thirty further hearings were adjourned, mainly because the defendants were not escorted to the court, due to the witnesses’ or prosecutor’s failure to appear or because the judge was absent. On several occasions the courts issued compulsory summonses for witnesses.
| 1
|
train
|
001-79619
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,007
|
PAVEL IVANOV v. RUSSIA
| 2
|
Inadmissible
|
Christos Rozakis
|
The applicant, Mr Pavel Petrovich Ivanov, is a Russian national who was born in 1948 and lives in Velikiy Novgorod. The applicant is the sole founder, owner and editor of the Russkoye Veche newspaper. The newspaper has been published monthly since 2000 at the applicant's expense and has a circulation of 999 copies. In 2003 the applicant was committed for trial on a charge of public incitement to ethnic, racial and religious hatred through the use of the mass-media (an offence under Article 282 § 1 of the Criminal Code). The prosecution's case was that the applicant, through a series of publications in his newspaper, called for the exclusion of Jews from social life, alleged the existence of a causal link between social, economic and political discomfort and the activities of Jews, and portrayed the malignancy of the Jewish ethnic group. The case was tried by the Novgorod Town Court. At the trial the applicant asserted his innocence, maintaining that the “Ziono-Fascist leadership of the Jewry” was the source of all evils in Russia. He believed that, in the absence of reliable information, the Russian public could not learn the causes and reasons of its predicament. The aim of the publications in his newspaper had been to “[educate] the Russians and Jews who [had] suffered from Ziono-Fascist ideology”. On 8 September 2003 the Town Court acquitted the applicant, finding that it was not proven that he was the author of the publication. On 14 October 2003 the Novgorod Regional Court quashed the acquittal and remitted the case. On 9 and 30 December 2003 the Town Court refused the applicant's petitions for a new socio-humanitarian and authorship report into his publications. On 10 February 2004 the applicant asked the Town Court to commission a history-social report that would clarify the following questions: “1. Are the Jews a race? 2. Are the Jews a nation? 3. If the Jews are a nation, from what historical period? 4. Are the Jews in Russia a nation or a Judaic diaspora? 5. May the adjective 'national' or the term 'national dignity' be used in respect of a member of the Judaic diaspora?” On 11 February 2004 the Town Court refused the applicant's request, noting that the answers to those questions had already been obtained by the initial socio-humanitarian report. The Town Court also noted: “In the court's view, it is a generally accepted fact that members of any nation, nationality or ethnic group have national dignity, which is determined by their national self-consciousness, on the basis of which they identify themselves as members of that ethnic group.” On 20 February 2004 the Novgorod Town Court found the applicant guilty of inciting to racial, national and religious hatred and prohibited him from engaging in journalism, publishing and disseminating in the mass-media for a period of three years. The finding of guilt was based, in particular, on socio-humanitarian, socio-psychological and linguistic reports and on oral testimony by the experts. The applicant maintained before the court that he could not have incited to national hatred because the Jews did not exist as a race or nation. The applicant lodged an appeal, reiterating that the Town Court wrongly considered that the “Jewish nation” existed. On 27 April 2004 the Novgorod Regional Court upheld the conviction. It struck down the prohibition on journalistic activity because that particular form of penalty had been introduced into the Criminal Code after the imputed events, and instead sentenced the applicant to a fine of 10,000 Russian roubles (approximately 300 euros).
| 0
|
train
|
001-92372
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF MOSKOVETS v. RUSSIA
| 3
|
Remainder inadmissible;Violation of Art. 5-1-c;No violation of Art. 5-1-c;Violation of Art. 5-3;Violations of Art. 6-1;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
4. The applicant was born in 1977 and is currently serving a prison sentence. 5. On 25 December 1999 the applicant was arrested on suspicion of several counts of aggravated murder and taken to a police station. The police officers allegedly intimidated the applicant and forced him to confess. The applicant’s representative was present when the applicant made his confession. 6. On 26 December 1999 a medical examination was conducted on the applicant. The expert recorded a bruise on the left side of the applicant’s chest and three abrasions on the backs of his hands, which did not cause harm to the applicant’s health. The above injuries were caused in the period from one to three days prior to the examination. The applicant stated that on the night of 24 December 1999 he had tried to stop a fight, and that as a result he had scratched his hand and been punched in the chest. 7. The applicant sought to have criminal proceedings instituted against the police officers, however his allegations were found to be unsubstantiated. 8. On 28 December 1999 the applicant was detained in custody. 9. On 3 January 2000 the applicant was charged with murder under Article 105 of the Criminal Code. 10. On 9 February, 27 March, 6 April and 19 December 2000 the applicant’s detention pending investigation was extended until 18 June, 25 June, 25 September 2000 and 25 February 2001 respectively. The extension orders referred to the particular gravity of the charges against the applicant, the fact that he had no permanent place of residence and that he had previously absconded, thus breaching the preventive measure applied to him in connection with another criminal case. 11. On 23 February 2001 the investigation was completed, and the case file was submitted to the St. Petersburg City Court for trial. 12. On 25 April 2001 the St. Petersburg City Court referred the case back to the prosecution authorities for additional investigation on account of serious breaches of procedure. The court held that the preventive measure applied to the applicant “should remain unchanged”. 13. On 25 May, 18 June and 11 September 2001 the applicant’s detention pending investigation was extended until 24 June, 26 September 2001 and 26 March 2002 respectively, for the reasons set out above. 14. On 25 December 2001 the additional investigation was completed and the case was resubmitted to St. Petersburg City Court for trial. 15. On 8 January 2002 the St. Petersburg City Court accepted the case for trial and held that the preventive measure applied to the applicant “should remain unchanged”. 16. Starting from 1 July 2002 the St. Petersburg City Court extended the applicant’s detention every three months. In particular, on 1 July 2002 it extended the applicant’s detention from 1 July 2002 until 1 October 2002; on 24 September 2002 from 30 September until 30 December 2002; on 15 December 2002 from 30 December 2002 until 30 March 2003; on 11 March 2003 from 30 March to 30 June 2003; on 13 May 2003 from 30 June to 30 September 2003; on 4 July 2003 from 30 September to 30 December 2003; on 28 November 2003 from 30 December 2003 until 30 March 2004, and on 26 February 2004 from 30 March 2004 until 20 June 2004. 17. The above extension orders concerned the applicant and five other co-defendants. All of the extension orders referred to the gravity of the charges against the applicant and his co-defendants and the risk of their absconding, without providing any further detail. The extension order of 28 November 2003 was more elaborate and, in so far as it concerned the applicant, read as follows: “[The applicant] is charged with particularly serious crimes, including several counts of aggravated murder, committed while under a written undertaking not to leave applied in the framework of another criminal case on the charges of, inter alia, several aggravated murders and other serious and particularly serious crimes ... Even after being detained in custody [the applicant] had committed a crime for which on 26 November 2001 he had been sentenced by St Petersburg Dzerzhinskiy (Tsentralniy) District Court to one year and six months’ imprisonment.” 18. The applicant appealed to the Supreme Court of Russia against these extension orders. The extension orders of 1 July and 24 September 2002 were found to be unlawful, on 11 November and 2 December 2002 respectively, because in the first case neither the applicant nor his representative were given proper notice of the hearing and, as a consequence, were absent, and in the second case the hearing took place in the absence of the applicant’s representative. The remaining extension orders of 15 December 2002, 11 March, 13 May, 4 July and 28 November 2003, and 26 February 2004, were upheld on appeal by the Supreme Court on 27 March, 4 June, 11 August and 22 September 2003 and on 18 February and 11 May 2004 respectively. 19. On 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30 December 2002. 20. On 26 November 2001 the Dzerzhinskiy (Tsentralniy) District Court of St Petersburg convicted the applicant of stealing and destruction of official documents and attempted forgery of documents and sentenced him to two years’ imprisonment starting from 26 November 2001. The court further held that the applicant’s detention from 27 September 2000 to 19 July 2001 in the above case should be counted toward the applicant’s prison term. 21. On 28 February 2002 the St Petersburg City Court commuted the applicant’s sentence to one year and six months’ imprisonment. 22. It appears that the applicant completed his sentence in August 2002. 23. Having studied the case file before the completion of the preliminary investigation, in November 2001 the applicant requested that his case be dealt with by one professional and two lay judges. 24. On 8 January 2002 St Petersburg City Court scheduled the first hearing for 5 August 2002. 25. On 5 August 2002, however, the proceedings were suspended in view of the necessity to search for Zh. – one of the applicant’s co-defendants. 26. On 15 December 2002 the proceedings were resumed despite the failure to find Zh. Starting from that date the court was composed of a professional judge, Mr Kurguzov, and two lay judges, Ms D. and Mr S. Prior to that, on 27 September 2002 in accordance with Section 6 of the Lay Judges Act the acting president of the St Petersburg City Court selected 102 lay judges, including Ms D. and Mr S., to sit at the examination of the cases by the St Peterburg City Court; and on 11 November 2002 Judge Kurguzov, to whom the case had been assigned, drew lots between six unidentified lay judges (their names did not appear in the relevant decision) and determined that lay judges Ms D. and Mr S. should sit with him on the bench. 27. The applicant challenged the composition of the bench. He alleged a breach of rules on the appointment of lay judges in that lay judges Ms D. and Mr S. had not been drawn by lot, contrary to the requirements of the Federal Law on Lay Judges of the Federal Courts of General Jurisdiction (Федеральный Закон «О народных заседателях федеральных судов общей юрисдикции в Российской Федерации», “the Lay Judges Act”). However, the applicant’s challenge was dismissed by the court. No breach of the rules governing the calling of lay judges was established. 28. Of thirty-one hearings scheduled between 15 December 2002 and 19 April 2004 twenty-two were adjourned for various reasons: five due to the submission by the applicant of requests and the prosecution’s need to study the case file, three due to the failure of the guard unit to deliver the applicant and his co-defendants to the court, nine because the lawyers were either sick or absent, three due to the necessity to summon witnesses, and two on the court’s initiative, on the first occasion because the applicant’s co-defendants had agreed to testify at the forthcoming court hearing, and on the second because the applicant had refused to testify. 29. On 19 April 2004 the applicant again challenged the composition of the bench, without success. 30. On 30 April 2004 the St. Petersburg City Court convicted the applicant of aggravated murder, theft and fraud and sentenced him to life imprisonment. 31. On 30 September 2004 the Supreme Court of Russia modified the qualification of the applicant’s crime and left the sentence unchanged. 32. At the applicant’s request, on 24 April 2008 the Supreme Court of Russia by way of supervisory review modified the qualification of the charges against the applicant and left the sentence unchanged. 33. For a summary of domestic law provisions on pre-trial detention and time-limits for trial see Khudoyorov v. Russia (no. 6847/02, §§ 76-96, ECHR 2005X (extracts)). 34. The Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”) provided that hearings in first-instance courts dealing with criminal cases were to be conducted, subject to certain exceptions, by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges (Article 15). 35. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”) does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the appointment of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 36. The Federal Law on enactment of the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction becomes ineffective as from 1 January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, becomes effective as from 1 January 2004. Before that date serious crimes should be dealt with by a single professional judge or by one professional and two lay judges if an accused has made such a request prior to the appointment of a trial hearing. 37. On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. Under Section 1 § 2 of the Act, lay judges were persons authorised to sit in civil and criminal cases as non-professional judges. 38. Section 2 of the Act provided that lists of lay judges had to be compiled for every district court by local self-government bodies, such lists being subject to validation by the regional legislature. 39. Section 5 of the Act determined the procedure for the selection of lay judges for the examination of cases by district courts. It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to the competent district court. The number of lay judges assigned to every professional judge had to be at least three times the number of persons needed for a hearing. 40. Section 6 of the Act provided that the selection of the lay judges for the examination of cases by regional (city) courts was carried out by the president of the relevant court in accordance with the rules set out by Section 5 of the Act on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region (city). It further provided that the selection of lay judges for examination of a particular case in a regional (city) court was carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by Section 5 of the Act. 41. In accordance with Section 9, lay judges were to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called more than once a year. 42. On 18 September 2002 the St Petersburg City Legislature validated the general list of lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg. The addendum to the above regulation contained the general list of 514 lay judges. 43. On 14 January 2000 the Presidium of the Supreme Court of Russia on the basis of Section 5 of the Lay Judges Act issued a regulation on the procedure for 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 lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned. 44. The new CCrP provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).
| 1
|
train
|
001-68554
|
ENG
|
HRV
|
CHAMBER
| 2,005
|
CASE OF KLJAJIC v. CROATIA
| 4
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1951 and lives in Karlovac, Croatia. 5. On 11 November 1991 business premises in Karlovac leased by the applicant were blown up by unknown perpetrators. 6. On 10 November 1994 the applicant instituted civil proceedings against the State before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages. He based his claim on section 180 of the Civil Obligations Act. 7. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending enactment of new legislation on the subject. 8. On 14 February 1996 the Municipal Court stayed the proceedings pursuant to the 1996 Amendment. 9. On 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”). 10. Pursuant to the 2003 Liability Act, on 19 November 2003 the Municipal Court resumed the proceedings and, at the same time, dismissed the applicant's action finding that it no longer had the jurisdiction in the matter. The applicant did not appeal against that decision. 11. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima – Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) provided as follows: “Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 12. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/1996) (“the 1996 Amendment”) reads as follows: “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.” This Act entered into force on 3 February 1996. 13. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku – Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 14. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no. 117/2003) (“the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting in bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed. This Act entered into force on 31 July 2003. 15. In its judgment Rev-276/04-2 of 8 April 2004 the Supreme Court held, while dismissing the plaintiff's claim on its merits, that, after the entry into force of the 2003 Liability Act, the State was no longer liable for the damage ensuing from the destruction of the plaintiff's business premises (attorney's office) that had been blown up by unknown perpetrators. 16. The relevant part of the Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war. The request is to be submitted to the competent ministry.
| 1
|
train
|
001-5760
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,001
|
M.L. v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British national, born in 1973 and living in Glasgow The facts of the case, as submitted by the parties, may be summarised as follows. The applicant met Ms X whilst he was still at school, and on 21 May 1992 a child was born. The child and Ms X initially stayed with the applicant and his parents, but the relationship came to an end in September 1992 when they separated. Both the applicant and Ms X applied to the Glasgow Sheriff Court for custody of their child on 22 and 23 September 1992 respectively. On 23 September 1992, the mother obtained an interim order for the delivery of the child to her, and the child lived with the mother and an older child thereafter. On 26 November 1992 the applicant was awarded interim access to the child by the Sheriff. This allowed him to visit the child on the first Saturday of each month between 1 p.m. and 3 p.m. commencing Saturday 5 December 1992. On 18 June 1993 the two sets of custody proceedings were joined. The applicant sought three continuations (a form of adjournment) during the course of these initial custody proceedings before the Sheriff. On 21 July 1993 the Sheriff awarded custody of the child to the applicant. Ms X’s appeal to the Sheriff Principal was refused on 23 September 1993. Ms X appealed to the Court of Session on 4 October 1993. With the exception of a ten day delay in lodging the case papers and a six week extension being granted on an unopposed motion of Ms X in respect of the lodging of some further documentation, the appeal to the Court of Session was dealt with according to the relevant Rules of Court. The appeal was successful, and on 24 June 1994 custody of the child was awarded to Ms X. The applicant appealed to the House of Lords. Under the House of Lords Practice Directions which regulated such appeals, the applicant had three months in which to lodge his appeal, or one month after the final determination of his legal aid application, whichever was the later. The applicant’s appeal was lodged on 19 June 1995. The applicant was required by the House of Lords Practice Directions to lodge a statement and appendix consisting of the relevant case papers within six weeks of lodging his appeal. He did this on 4 October 1995. The appeal could not be set down until the appendix had been lodged. Between October and December 1995, the Judicial Clerk of the House of Lords Judicial Office was in correspondence with the applicant’s representatives about a proposal raised by the applicant to provide the House of Lords with a report on the child’s current circumstances. The Judicial Clerk suggested that the applicant write to the Appellate Committee of the House of Lords offering to submit such a report if their Lordships wished. No response was received from the applicant. The hearing took place before the Appellate Committee of the House of Lords on 12 June 1996. Judgment was delivered on 4 July 1996, when the appeal was dismissed. Following the hearing of the appeal the Judicial Clerk wrote on 13 June 1996 to the applicant’s representatives at the request of a member of the Appellate Committee to establish why it took so long for the case to reach a hearing given that it involved a very young child. Again, no response was received from the applicant or his representatives. Lord Jauncey of Tullichettle, giving the judgment of the House of Lords on 4 July 1996, found, inter alia, as follows: "The sheriff found as a fact that apart from being subject to respiratory infections [the child] was happy, healthy and well cared for in the mother’s house. In his note he drew attention to the different social backgrounds from which the parties came. The father was, he said, comfortably middle class, while the mother had had none of the educational and social advantages which he had had. The mother’s lifestyle was not particularly stable although that was not unusual for a person of her background. However he concluded that were the mode of life of each parent much the same he would not think that there were sufficient grounds for separating the child from her mother and sister.(...) In delivering the opinion of the [Court of Session] Lord Morison, after referring to the restrictions imposed on an Appellate Court in disturbing the conclusions of a sheriff as to the child’s best interest, continued: ‘However, in determining whether the sheriff has failed to take sufficiently into account any significant factor, it is legitimate for this court to have regard to any general practice, approach or principles which may be derived from a consideration of previous cases dealing with the custody of young children. (...)’ [It] is in our opinion quite clear, as we understood to be conceded on behalf of the respondent in the present case, that it has been and remains the practice of the courts in Scotland to recognise as an important factor which has to be fully taken into account in a dispute concerning custody between the mother and father of a very young child, that during his or her infancy the child’s need for the mother is stronger than the need for a father. This principle should not be regarded as creating any presumption in favour of the mother, nor, certainly, as a rule of law. But nonetheless there is a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child’s needs than is a father. It is also clear from the cases cited that this general preference in favour of the mother is substantially strengthened if preservation of the status quo also favours her case for custody. If, as in the present case, the infant has been in the mother’s care since birth and is, as the sheriff found, ‘happy, healthy and well cared for’ the correct approach is that referred to in Wilkinson at p. 212, viz. ‘it may therefore be better, especially where the mother has until the dispute arose had the child in her care, for the child to be in the mother’s custody rather than to embark on the risks inherent in the father’s fulfilling a maternal role or in the creating of a new relationship in which there will be a surrogate mother’. The opinion at p. 850b expressed the view that in holding the advantages of the father’s background to be decisive the sheriff failed to balance these advantages against the important general considerations above referred to. It went on to point out at p. 850f that the court must take account of this omission. The opinion further criticised the sheriff for failing to have regard to the consequences of material changes which were likely to occur in the future, for example if the father were to marry or move out of his parent’s house unmarried. Having concluded that the sheriff had failed to have regard to the foregoing important matters the [Court of Session] considered that the matter was at large for their determination. They decided that it would not be in [the child]’s best interest to be removed from the care of her mother (...) At the time of the sheriff court proof [the child] who was only 14 months old had been with her mother since birth apart from the periods of access enjoyed by the father. Her home was with her mother and half sister where she was happy, healthy and well cared for. In awarding custody to the father the sheriff was clearly much influenced by the advantages moral and particularly material which he considered would accrue to [the child] from becoming a member of the father’s family. He did not, as [the Court of Session] pointed out at p. 850c, specifically address the benefit of leaving [the child] where she was with the availability of maternal care nor did he address the situation which would arise in the long term if the father, who was then unemployed, were to obtain employment and/or leave the family home, but rather accepted that he was granting custody to the father’s family or to his mother as much as to the father. Given that the mother’s care for [the child] was not criticised the sheriff undoubtedly erred in not addressing the advantages of the status quo when considering the advantages of an upbringing in the father’s family, which would in effect involve substituting the maternal grandmother for the natural mother. It follows that the [Court of Session] were fully justified in interfering with the sheriff’s decision and in substituting therefore a decision of their own. (...) My Lords, to summarise, the advantage to a very young child of being with its mother is a consideration which must be taken into account in deciding where lie its best interests in custody proceedings in which the mother is involved. It is neither a presumption nor a principle but rather recognition of a widely held belief based on practical experience and the workings of nature. Its importance will vary according to the age of the child and to the other circumstances of each individual case such as whether she is or is not capable of providing proper care. Circumstances may be such that it has no importance at all. Furthermore it will always yield to other competing advantages which more effectively promote the welfare of the child. However where a very young child has been with its mother since birth and there is no criticism of her ability to care for the child only the strongest competing advantages are likely to prevail. Such is not the case."
| 0
|
train
|
001-91347
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,009
|
COMANDARI v. MOLDOVA
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicants, Mr Vasile Comandari and Dumitru Comandari, are Moldovan nationals who were born in 1974 and 1978 respectively and live in Bălţi. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu. Following the unlawful criminal prosecution of the applicants, they instituted civil proceedings against the Government and claimed non-pecuniary compensation. By a final judgment of 21 September 2004 the Balti Court of Appeal ordered the Ministry of Finance to pay each of them 16,190 Moldovan lei. On 19 October 2004 the applicants formally requested the enforcement of that judgment and the money was paid to them on 14 September 2005. The applicants did not inform the Court about the enforcement of the judgment in their favour, even in their post-communication correspondence. It was only through the Government’s observations that the Court learned about the enforcement of the judgment in September 2005.
| 0
|
train
|
001-90026
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF TROFIMOV v. RUSSIA
| 3
|
Violation of Art. 6-1 and 6-3-d
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The applicant was born in 1960 and lives in the town of Apatity in the Murmansk region. 7. On 6 June 2000 the Apatity Town Court of the Murmansk Region convicted the applicant and his co-defendant, Ms Sk., of concerted drug trafficking under Article 228 § 4 of the Criminal Code. It established that the applicant had repeatedly procured large quantities of drugs from unidentified sources and had handed them over to Sk. with a view to selling them to individual customers. Sk. had packaged the drugs, resold them and returned the proceeds to the applicant. On 1 October 1999 the applicant had come to Sk.’s flat and had collected the usual proceeds in the amount of 2,000 Russian roubles (RUB). He had been arrested shortly after leaving the flat. 8. At the trial Sk. pleaded guilty and submitted that the applicant had suggested that she sell drugs and that she had agreed. The applicant had repeatedly brought heroin and marijuana to her flat, she had sold the drugs to third persons and had returned to the applicant the proceeds in the amount of RUB 2,000 per gramme of heroin. The applicant pleaded not guilty to all charges and claimed that he had lent RUB 2,000 to Sk. and she had finally paid this amount back to him on the day of his arrest. He contended that during the search at his flat he had voluntarily surrendered heroin to the police and that marijuana seized there had been a plant. 9. In convicting the applicant the Town Court relied on the statements made by Sk. at the trial. It found that they were corroborated by the following evidence: - In a pre-trial statement Mr S., the partner of Sk.. who had previously cohabited with her, confirmed that the applicant had repeatedly handed drugs over to Sk. and that she had subsequently resold them. According to S., on 1 October 1999, before being arrested, the applicant had collected from Sk. the usual proceeds for the sale of heroin and had promised to return later and to hand her over a further amount of drugs for sale. S. was not questioned at the trial; his deposition was read out despite the applicant’s and his counsel’s objections. - In a pre-trial statement K. testified that she knew both from the applicant and Sk. that he had systematically provided Sk. with drugs for sale. - Ya. testified at the trial that the applicant had suggested that she sell drugs but she had refused. - Five police officers, questioned in court, submitted that prior to the applicant’s arrest they had arrested several persons leaving Sk.’s flat in possession of drugs. They also stated that they had seized drugs during the searches of the apartments of both co-accused. - Five persons testified in court that they had bought drugs from Sk. - Attesting witness V. confirmed at the trial that narcotic-like substances had been seized at Sk.’s flat. - Forensic reports established that the substances seized from the co-defendants were heroin and marijuana and whereas it had been impossible to establish any match between the heroin samples seized from the applicant and Sk., the marijuana samples seized from them had not matched. 10. The applicant was sentenced to eleven years and three months’ imprisonment. Sk. was sentenced to three years’ imprisonment and was relieved from the punishment under the Amnesty Act. 11. The applicant appealed and contended, among other things, that his conviction had been based on circumstantial evidence and that the trial court had failed to summon S. despite the applicant’s requests and the fact that S.’s whereabouts had been known to it. Furthermore, he claimed that he had repeatedly requested a confrontation with S. during the preliminary investigation and at the Town Court’s preliminary hearings, but all his requests had been either disregarded or turned down without any reasons given. He claimed that, contrary to the statement by Sk. that he had started supplying her with drugs in July 1999, S. had allegedly testified that Sk. had started dealing in drugs in April 1999. The applicant also averred that in her initial statements to the police Sk. had submitted that she had procured drugs from several other sources and not from him. He further complained that the court had convicted him of concerted trafficking in drugs despite the conclusions of the forensic reports that the heroin samples seized from him and his co-defendant were differently coloured and that the expert had been unable to establish whether those samples matched. The marijuana samples seized from him and Sk. had not matched at all. The applicant also alleged that the police had planted marijuana on him during the search of his flat. 12. On 1 November 2000 the Murmansk Regional Court quashed the trial judgment and ordered a retrial. The Regional Court found that some of the trial court’s findings had lacked a proper evidentiary basis, that the trial court had found the applicant guilty of trafficking in bigger amounts of heroin than initially imputed to him by the prosecution, and that it should have questioned the attesting witnesses present when the seizure was carried out at the applicant’s flat. It also held that the trial court had breached Article 286 of the Code of Criminal Procedure by failing to take any measures to secure the attendance of witness S., whose testimony had had major importance for the determination of the charge against the applicant and whose whereabouts had been known to it. 13. During a new trial, the applicant pleaded guilty to unlawful purchase of drugs (Article 228 § 1 of the Criminal Code), but not to the concerted sale of drugs. He maintained that Sk. had slandered him under the influence of drugs and had yielded to pressure from the police officers. Sk. confirmed at the court hearings her statements made during the initial trial. 14. Having re-examined the case, on 22 January 2001 the Town Court delivered a new judgment. It found both defendants guilty of unlawful procurement, storage and concerted trafficking in drugs, repeatedly and on a large and particularly large scale under Article 228 § 4 of the Criminal Code. It sentenced the applicant to eleven years and three months’ imprisonment and Sk. to three years’ imprisonment, referring, among other things, to the fact that she had “unmasked her accomplice”. By the same judgment it relieved Sk. from punishment by virtue of the Amnesty Act and ordered that she be treated for drug addiction. 15. The court based the applicant’s conviction on the statements made at the retrial by Sk. It dismissed the applicant’s allegations that Sk. had slandered him as unfounded and held that her statements were corroborated by other evidence: - It referred to the pre-trial deposition from S., noting that “his statements were read out pursuant to Article 286 of the Code of Criminal Procedure”. - It questioned K. who had previously asserted that she had learnt from the co-defendants that they had been dealing in drugs. K. retracted, but the trial court preferred to rely on her earlier pre-trial statement. - It also read out the statement from Ya. made at the initial trial in which she submitted that the applicant had been trafficking in drugs, in particular heroin, after his release from prison and that he had suggested that she sell drugs but she had refused. - It further had regard to the fact that RUB 2,000 (according to Sk., the usual proceeds for the sale of one gramme of heroin) had been seized from the applicant during his arrest, and referred to handwritten notes seized at his flat. Those notes contained columns, arithmetical operations, and figures, including “2,000”, “1,150”, “500” and so forth. - Attesting witness Kh. submitted to the court that during the search he had seen the applicant surrender to the police what was supposed to be heroin and the police discover what was supposed to be marijuana. - The police officers and the drug buyers confirmed to the court their statements made at the first trial. - The court also referred to the forensic reports and other pieces of evidence used in the previous trial. The expert was not summoned to be heard as a witness. 16. On 8 February and 22 March 2001 the applicant submitted his grounds of appeal to the Murmansk Regional Court. He complained, among other things, that the Town Court had failed to question S., although his testimony had contradicted Sk.’s and his own accounts of the events; that he had twice requested the court to question S.; that the trial court had known that S. had been held in a detention facility in the Murmansk Region and thus had had a real opportunity to obtain his attendance and, finally, that the first conviction had been quashed precisely because S. had not been questioned in open court. The applicant pointed out that the trial court had not referred to any circumstances which would justify the reading out of S.’s statement. He also complained that the trial court had incorrectly assessed the forensic reports on the seized substances and that it had refused to summon the expert who could have given his opinion as to the difference in colour of the heroin seized from him, Sk. and the drug buyers. 17. On 15 May 2001 the Murmansk Regional Court upheld the applicant’s conviction. It held that Sk.’s statements had been coherent and consistent throughout the proceedings and that the applicant’s conviction was based on her testimony, corroborated by other evidence. As to the failure to secure the attendance of S., the court of appeal ruled as follows: “The fact that witness ... S. was not directly questioned at a court hearing is not a significant breach of the law on criminal procedure.. By the time of the retrial, S. was already serving a prison sentence. Transferring him to the town of Apatity would have entailed a lengthy adjournment of the trial. Therefore, in the present case the court, in the [appeal court’s] opinion, lawfully read out ... the statements of witness S. and subsequently assessed them together with other pieces of evidence...” 18. By a decision of 22 October 2001, the President of the Murmansk Regional Court dismissed the applicant’s request for supervisory review of his conviction. 19. By a decision of 18 March 2004, a judge of the Murmansk Regional Court dismissed an application by the prosecutor of the Murmansk Region for supervisory review of the applicant’s conviction. The decision stated, among other things, that the fact that the expert had been unable to confirm the match of the heroin samples seized from the applicant and Sk. and had concluded that the marijuana samples seized from them had not matched at all did not undermine the court’s finding that the co-defendants had been trafficking in drugs in concert. This was because it had been established that the applicant had procured drugs from different sources on several occasions and had repeatedly supplied Sk. with small quantities of drugs for further sale. It was also noted that, according to the trial court verbatim record, the applicant had not submitted any requests for the expert to be summoned or any further examinations to be carried out. 20. On 18 January 2005 the Kolskiy District Court of the Murmansk Region ordered the applicant’s release on parole. It found that the applicant had already served half of his prison sentence and that he had proved by his conduct that he did not need to serve it in full. 21. On 2 November 2006 the President of the Murmansk Regional Court dismissed the application by the Deputy Prosecutor General for supervisory review of the applicant’s conviction, finding that it did not contain any arguments which would not have been examined in the decision of 18 March 2004. 22. Article 228 § 1 of the Criminal Code (as in force at the material time) provided that unlawful purchase or possession of a large quantity of drugs without the intention to sell was punishable by up to three years’ imprisonment. Unlawful purchase or possession of a large or especially large quantity of drugs with the intention to sell, or the selling of drugs in the above quantities, committed by a group of persons and repetitively, carried a sentence of from seven to fifteen years’ imprisonment (Article 228 §§ 2, 3 and 4). 23. Article 240 of the Code of Criminal Procedure of 1960 (as in force at the material time) provided that the trial court was to examine the evidence in the case directly: it had to question defendants, victims, witnesses and experts, and examine material evidence, read out records and other documents. Article 286 provided that statements made by a witness during the inquiry or pre-trial investigation could be read out in two circumstances: (i) if there was a substantial discrepancy between those statements and the testimony given at the trial; or (ii) if the witness was absent from the court hearing for reasons that made it impossible to secure his or her attendance.
| 1
|
train
|
001-75689
|
ENG
|
DEU
|
GRANDCHAMBER
| 2,006
|
CASE OF SÜRMELI v. GERMANY
| 1
|
Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alvina Gyulumyan;Antonella Mularoni;Christos Rozakis;Georg Ress;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Lucius Caflisch;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Volodymyr Butkevych
|
8. The applicant was born in 1962 and lives in Stade (Germany). 9. On 3 May 1982 he was involved in an accident with a cyclist on the way to school and sustained injuries including a broken left arm. On 22 May 1982 he left hospital. He subsequently entered into negotiations with the cyclist’s liability insurers, who paid him a sum of approximately 12,500 euros (EUR) in respect of any damage he might have sustained. The accident insurers for Hanover City Council, the authority responsible for the applicant’s school, paid him a temporary disability pension (Verletzenrente) until the end of 1983. They also paid him approximately EUR 51,000 in compensation. 10. The applicant subsequently instituted proceedings against the City Council’s accident insurers, in the course of which a considerable number of expert reports and medical opinions were produced. In a judgment of 16 November 1989, the Lower Saxony Social Court of Appeal (Landessozialgericht), which itself had asked experts in the fields of orthopaedic surgery, neurology and, at the applicant’s request, hand surgery to produce reports on his medical problems, acknowledged that he had become 20% permanently disabled as a result of the accident and was entitled to a pension on that account with effect from 1 June 1984. 11. Since 1 July 1994, after falling on his left arm or hand in January 1993, the applicant has been in receipt of an occupational-disability pension of approximately EUR 800 per month. 12. The applicant instituted a second set of proceedings against Hanover City Council’s accident insurers, seeking in particular the award of an increased pension. He submitted that the accident had caused him mental damage and a stomach disorder. In a judgment of 19 February 2001, the Social Court of Appeal dismissed the applicant’s claim. It based its decision on two reports by experts in neuropsychiatry whom it had appointed during the proceedings, on a large number of other medical reports, some of which had been drawn up shortly after the accident, and on files from other administrative and judicial proceedings concerning the applicant. 13. On 18 September 1989, after the negotiations aimed at securing increased payments had failed, the applicant brought an action against the cyclist’s insurance company in the Hanover Regional Court (Landgericht), in particular seeking damages and a monthly pension, among other claims. On 10 June 1991, after holding several hearings and taking evidence about the accident from four witnesses between July 1990 and March 1991, the Regional Court delivered a partial decision. It held that the applicant’s liability for the accident was limited to 20% and that he was entitled to damages for the remaining 80%. 14. On 26 November 1992 the Celle Court of Appeal (Oberlandesgericht) dismissed an appeal by the applicant. On 29 January 1993 the applicant appealed on points of law. He twice requested an extension of the time he had initially been allowed for filing his grounds of appeal. On 2 June 1993 the applicant’s new representative applied for a third extension until 14 July 1993. On 14 December 1993 the Federal Court of Justice (Bundesgerichtshof) dismissed the appeal. 15. In March 1994 the proceedings for the assessment of the damages and the pension resumed in the Hanover Regional Court. The applicant was represented by counsel. On 18 April 1994 the court held a hearing. 16. On 9 May 1994 it ordered an expert medical assessment. On 25 May 1994 the applicant applied for the three judges dealing with his case to withdraw, but his application was dismissed. On 19 July 1994 Hanover Medical School proposed a Professor B. to draw up the expert report that had been ordered. On 21 July 1994 the applicant appealed against the court’s decision of 9 May 1994. On 2 August 1994 the Celle Court of Appeal dismissed his appeal. 17. On 15 September 1994 the court appointed Professor B. as the expert. Professor B. informed the court that it would be preferable for the report to be drawn up by a specialist in accident surgery and that it was likely to take at least one year to produce. On 2 December 1994, following a reminder from the court, the applicant agreed to the appointment of a surgical expert. 18. On 15 December 1994 a Professor T. was proposed. The applicant objected to his appointment on the ground that he was not a specialist hand surgeon (Handchirurg). On 6 February 1995 the court accordingly asked Professor B. to draw up the expert report. On 7 February 1995 the applicant informed the court that he agreed with the deadline set; he insisted, however, that there should not only be an expert assessment by a general surgeon but also one by a specialist hand surgeon. Professor B. informed the court that he was unable to draw up the report as requested because the fractures observed in the applicant’s forearm did not come within his field of expertise but were a matter for a specialist in traumatology or an orthopaedic surgeon. On 20 February 1995 the defendant proposed appointing Professor T. On 24 April 1995, following a reminder from the court, the applicant suggested appointing Professor B. or, failing that, a Professor B.-G. 19. On 12 May 1995 the court appointed Professor T., who informed it that an additional assessment by a specialist hand surgeon was necessary and that it was likely to take at least one year to produce the report. On 28 July 1995 the court informed the applicant that Professor B. had refused to draw up the report and asked him whether Professor B.-G., whom he had suggested, had already drawn up an expert report on him. On 27 November 1995 the court informed the parties that Professor B.-G. had retired but that his successor, Professor P., would be appointed as expert. On 23 January 1996 Professor P. informed the court that it would take him nine to twelve months to draw up the report. 20. On 3 September 1996 the applicant informed the court that the accident had caused him severe depression, and asked it to order an expert psychiatric assessment. 21. On 10 June 1997 the court asked the expert how his report was progressing. The expert replied that the report would be ready in four to six weeks. On 22 August 1997 the court again contacted the expert. He initially replied that the report would be completed by the end of September but subsequently stated that, owing to an excessive workload, he would need a further month. Professor P.’s report was received at the court on 6 November 1997. The applicant criticised Professor P.’s work and requested that he submit an additional report. He also requested an expert assessment (Schmerzgutachten) of the pain he had felt since the accident. On 3 December 1997 the court granted the defendant company an extension of the time it had been allowed for filing observations on the report; it submitted its observations on 6 January 1998. On 27 April 1998 the applicant’s representatives informed the court that as their client had been ill they would not be able to submit their observations in reply until mid-May. 22. On 31 August 1998 the applicant’s representatives informed the court that the parties had not been able to reach a partial friendly settlement. They subsequently began fresh out-of-court negotiations on a friendly settlement, asking on three successive occasions for the deadline to be put back. On 5 May 1999 they informed the court that the negotiations had failed and asked for the proceedings to be resumed. The defendant stated that the failure of the negotiations had been due to the applicant’s unreasonable demands. 23. On 27 May 1999 the president of the division dealing with the case asked the parties to inform him whether they still wished to submit observations. In a note of 8 September 1999, the reporting judge stated that the proceedings had not been able to progress more quickly owing to an excessive workload and to certain priority cases. In a note of 23 December 1999 he made a similar observation, referring to a number of periods of leave, in particular sick-leave, in addition to the reasons stated previously. 24. On 18 February 2000 the president of the division asked the parties to inform him whether they intended to submit any further observations. The applicant replied that negotiations for an out-of-court settlement could take until mid-May and that he reserved the right to submit further observations if they were unsuccessful. On 26 June 2000 he informed the court that the negotiations had failed and asked for an expert assessment of his total loss of earnings resulting from the accident. In support of that request, he submitted an expert psychiatric assessment that had been drawn up during the proceedings in the Social Court of Appeal (see paragraph 12 above). On 17 August 2000 the defendant informed the court that the negotiations had failed because the applicant had refused to make payment of the sum negotiated conditional on the findings of an expert assessment. 25. On 17 October 2000 the applicant requested the court to deliver a decision promptly, seeing that the proceedings had already taken eighteen years. In support of his request he submitted an expert psychiatric assessment of his state of health. In a note of 19 January 2001, the court pointed out to him that the proceedings had been pending only since 18 September 1989. 26. On 21 February 2001 the applicant revised his claim, which now concerned a lump sum of 702,122 German marks (DEM – approximately EUR 359,000) and a monthly pension of DEM 1,000. On 2 March 2001 the court assessed the value of the subject matter of the case at DEM 985,122. 27. On 17 April 2001 the applicant asked the court when it would be holding a hearing. On 15 May 2001 the court set the case down for hearing on 9 July 2001 and asked the applicant to provide information, concerning in particular his alleged loss of earnings. It was important to establish his likely career path had the accident not taken place and the extent to which the physical injury from which he was now suffering was the direct consequence of the accident. 28. On 9 July 2001, having obtained the parties’ consent at the hearing, the court decided to admit in evidence the file from the proceedings in the Social Court of Appeal. The file could not be forwarded immediately because it was at the Federal Social Court (Bundessozialgericht). 29. On 14 August 2001, at the applicant’s request, the court ordered Professor P. to supplement his expert report of 30 October 1997. He replied that it would take him at least ten months to do so. 30. On 20 September 2001 the court asked the applicant to give his consent in writing to its consulting the file in the possession of the Federal Social Court. Pointing out that he was undergoing treatment abroad which was expected to take until mid-November, the applicant asked for an extension of the time allowed for his reply. On 26 October 2001 the court told him that he had not provided sufficient evidence of the injury to his forearm and asked him to inform it whether he intended to pursue his request for an assessment by a specialist hand surgeon. The applicant asked for a further extension of the time allowed for his reply. On 18 December 2001 he stated that he did not agree to the use in evidence of the file from the proceedings in the social courts and requested a further extension with regard to the expert surgical assessment. 31. On 8 February 2002 the court ordered the applicant to submit a number of documents and asked Professor P. to draw up the additional report. In reply to two letters from the applicant it reminded him that he had requested the additional report himself. On 7 May 2002 the applicant submitted his observations, having twice requested further time to do so. On 24 May 2002 he personally informed the court by telephone that he no longer required the additional report and only wanted an assessment of his pain, on the ground that he was suffering from neurosis caused by the proceedings (Prozessneurose). 32. On 28 May 2002 the court declared inadmissible an application for the judges to withdraw, which the applicant had lodged on 23 May 2002. 33. On 29 May 2002 the court asked the applicant’s representatives for clarification as to the additional expert report. On 12 July 2002 they informed the court that their client no longer wished the report to be produced. 34. On 1 August 2002 the President of the Regional Court asked to be sent the file in the applicant’s case. 35. On 16 September 2002 the court decided to appoint a Professor X to draw up an expert report concerning in particular the onset and cause of the pain suffered by the applicant. It also requested the applicant to provide certain items of information. 36. On 7 October 2002 the applicant again applied for the members of the court to withdraw. On 8 October 2002 he asked for an extension of the time allowed for submitting the information requested. On 22 October 2002 he objected to the expert who had been appointed, proposed another one (Dr J.), sought leave to consult the file and applied for a further extension of six weeks. On 29 October 2002 the court invited him to submit reasons for his objection to the expert, proposed other experts and gave him until 20 December 2002 to produce the information requested. 37. On 12 November 2002 the applicant personally informed the court by telephone that he was unable to inspect the file because he had broken his arm. On 18 November 2002 the defendant proposed an expert. The applicant expressed the view that the expert proposed, not being a specialist in the field, was not competent to carry out an assessment of his pain, and asked the court to deliver a partial decision. 38. On 5 December 2002 Dr J. informed the court that he would be unable to draw up a report before the end of 2003. On the same day the court appointed Professor X as expert and dismissed the applicant’s reservations as to his professional credentials. It pointed out that it was unable to give a partial decision. The applicant objected that Professor X had already acted as expert, and requested that an “interdisciplinary” report be produced in addition to the report on his pain. 39. On 15 January 2003 the applicant applied for the reporting judge in his case to withdraw. 40. On 3 March 2003 the president of the division dealing with the case held discussions with the parties’ representatives with a view to reaching a friendly settlement and scheduled a hearing to that end for 10 March 2003. At the hearing the applicant stated that he would not let Professor X examine him. The president asked him to stop telephoning the judges dealing with the case and stated that, with a view to speeding up the proceedings, he would not be so willing in future to accept requests to consult the file. On 2 May 2003 the court, in reply to a further request by the applicant, informed him that he could consult the file at the court’s registry but that, to avoid delays in dealing with the case, the file would not be sent to the registry of the District Court in Stade, his place of residence. 41. On 16 May 2003 a division of the Regional Court dismissed three applications by the applicant for the reporting judge to withdraw. 42. On 4 June 2003 the applicant again sought leave to consult the case file at the registry of the Stade District Court. 43. On 11 June 2003, after learning that the applicant had instituted disciplinary proceedings against Professor X, the court appointed Professor W. to replace him as expert. On 25 June 2003 the applicant left a message for the president of the division on his answering machine, expressing his concerns about the choice of expert. The applicant’s representatives also expressed reservations as to Professor W.’s credentials and proposed another expert. The president of the division informed the parties that Professor W. had stated that he was prepared to draw up the report, and indicated that he was standing by his choice of expert despite the applicant’s reservations about him. 44. On 16 September 2003 Hamburg-Eppendorf University Hospital informed the court that the applicant’s medical examination was scheduled for 23 October 2003. On 29 September 2003 Professor W. returned the file to the court and asked it to relieve him of his duties on the ground that the applicant had stated his opposition to the production of the report and had contacted the hospital’s legal department to tell them so. On the same day the court sent the file back to Professor W., asking him to wait and see whether the applicant kept his appointment for the medical examination. On 29 October 2003 Professor W. informed the court that he had been able to examine the applicant and asked whether a further expert assessment on pain therapy could be produced by a Professor Y. On 21 November 2003 the court ordered a further examination of the applicant by Professor Y. 45. On 9 December 2003 Professor W.’s report was received at the court. The president of the division informed the expert that further explanations were necessary. On 26 February 2004 the hospital informed the court that a Dr M., from its psychiatric department, was prepared to examine the applicant. On 26 March 2004 Professor W. informed the court that he would be submitting his final conclusions in collaboration with Dr M. The applicant’s representatives proposed another expert who, in their opinion, was better qualified to examine their client. On 24 May 2004 the court eventually appointed a Dr W. as expert. Dr W. replied that the case was a difficult and complex one requiring approximately forty hours’ work and that he would not be able to submit the report until October 2004. On 14 June 2004 the court decided to ask the parties to pay advances on the fees for the production of the expert report, but the applicant refused to do so. His representatives objected to the decision of 14 June 2004 but paid the advances as requested. On 28 June 2004 the court dismissed the objection. 46. On 19 July 2004 the court, in reply to a request by the applicant, decided not to supplement its decision of 16 September 2002 on the production of the expert report. 47. On 10 January 2005 Dr W.’s report was received at the court. It was forwarded to the parties on 21 February 2005. On 8 March 2005 the applicant’s representatives requested an examination of their client by a different expert. 48. On 5 April 2005 the court’s registry asked to be sent the file. 49. On 14 April 2005 the applicant submitted an expert report he had himself commissioned from a Dr K. 50. On 6 October 2005 the court held a hearing at which Professor W. gave evidence and Dr W. and Dr K. were present. 51. In a judgment of 31 October 2005, the court awarded the applicant a total of EUR 20,451.68 for non-pecuniary damage. Taking into account the payments already made after the accident, the defendant was required to pay the outstanding sum of EUR 12,015.36 under this head and EUR 417.93 for loss of earnings. The court dismissed the remainder of the applicant’s claim and ordered him to pay 97% of his costs. Relying on the expert reports ordered in the course of the proceedings, on the judgments of the Social Court of Appeal and on various other expert reports and medical opinions produced in separate proceedings, the court outlined the injuries sustained by the applicant in the accident and examined whether any other forms of damage, such as chronic pain and mental disorders, were attributable to the accident as he claimed them to be. It concluded that there was not a sufficiently established link between the accident and most of the damage alleged. In assessing non-pecuniary damage, the court had regard to the circumstances of the accident, the subsequent conduct of the parties and the relevant case-law of the Celle Court of Appeal. It pointed out that the length of the proceedings could be taken into account only in small measure because the defendant could not be held responsible for the fact that the applicant had not brought his claim until seven years after the accident, making it more difficult to adduce evidence, that he had refused to allow the file from the proceedings in the Social Court of Appeal to be used in evidence, and that he had objected on several occasions to the choice of experts appointed. 52. The applicant subsequently applied to the Celle Court of Appeal for legal aid in order to appeal against the judgment. 53. On 14 March 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court, stating: “The proceedings at first instance before the Hanover Regional Court in case no. 20 O 186/89 have lasted since 1989 and have irreparably destroyed my existence. I am lodging a constitutional complaint on account of an infringement of Article 2 § 1 and Article 20 § 2 of the Basic Law because the excessive length of the proceedings is no longer compatible with the rule of law and I request the Court to find a breach of the law and of Article 839 of the Civil Code in that Article 139 of the Code of Civil Procedure has not been complied with. Evidence: Hanover Regional Court, no. 20 O 186/89. Information: no. 1 BvR 352/2000. Please inform me if you need any other documents.” On 23 March 2001 the Federal Constitutional Court requested information on the state of the proceedings from the Regional Court, which informed it on 22 May 2001 that it had scheduled a hearing for 9 July 2001. On 22 June 2001 it sent the applicant the Regional Court’s reply. 54. On 5 and 11 August 2001 the applicant filed additional observations. 55. On 16 August 2001 the Federal Constitutional Court, sitting as a panel of three judges, decided not to examine the applicant’s complaint (no. 1 BvR 1212/01). The decision, in which no reasons were given, stated: “The complaint is not accepted for adjudication. No appeal lies against this decision.” 56. On 26 May 2002 the applicant again complained to the Federal Constitutional Court about the length of the proceedings. His complaint, which referred to his previous one, was worded as follows: “I, the undersigned, Mr Sürmeli, residing at ..., hereby lodge a constitutional complaint on account of a breach of the rule of law [Rechtsstaatsprinzip] by the Hanover Regional Court (no. 20 O 186/89), because the proceedings in that court continue to be delayed.” 57. On 27 June 2002 the Federal Constitutional Court, sitting as a panel of three judges, decided not to examine this new complaint (no. 1 BvR 1068/02. In its decision it stated: “Since the requirements of section 93a(2) of the Federal Constitutional Court Act have not been satisfied, the constitutional complaint cannot be accepted for adjudication. It does not raise any issue of fundamental significance [grundsätzliche Bedeutung]. Nor is there any need to examine the complaint for the purpose of safeguarding the constitutional rights which the complainant alleges to have been infringed, since it does not have sufficient prospects of success. The complaint lacks substance in that it cannot be ascertained from the complainant’s observations whether the length of the proceedings [in the Hanover Regional Court] has exceeded a reasonable time. In accordance with the third sentence of section 93d(1) of the Federal Constitutional Court Act, no further reasons for this decision are necessary. No appeal lies against the decision.” 58. On 27 July 2005 the registry of the Federal Constitutional Court informed the applicant that it was not possible to reopen the proceedings. 59. On 23 May 2002 the applicant applied to the Hanover Regional Court for legal aid in order to bring an action for damages against the State on account of the excessive length of the proceedings in issue. 60. On 14 May 2003 the Regional Court refused his application on the ground that the delays in the proceedings had not been attributable to the justice system but were due to the courts’ excessive workload. It added that the applicant had not provided sufficient details of the damage allegedly sustained. 61. On 21 July 2003 the Celle Court of Appeal upheld that decision, basing its conclusion, in particular, on the Government’s observations in the present case before the Third Section of the Court, which the applicant had produced in the proceedings before it. 62. The relevant provisions of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht) of 12 December 1985, in its version of 11 August 1993, read as follows: “(1) Any person who claims that one of his basic rights or one of his rights under Article 20 § 4 and Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. (2) If legal action against the violation is admissible [zulässig], the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant ...” “(1) A complaint of unconstitutionality shall require acceptance prior to a decision. (2) It is to be accepted (a) if it raises a constitutional issue of general interest; or (b) if this is advisable for securing the rights mentioned in section 90(1); or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage [besonders schwerer Nachteil] for the complainant.” The third sentence of section 93d(1) provides that no reasons need be given for a decision by a panel of three judges not to accept a constitutional complaint for adjudication. “(1) If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission. The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law. (2) If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision [and] in the cases contemplated in the first sentence of section 90(2) above it shall refer the matter back to a competent court ...” 63. Article 34 of the Basic Law (Grundgesetz) provides: “Where a person, in the exercise of a public office entrusted to him, breaches an official duty [Amtspflicht] towards a third party, liability shall in principle rest with the State or the public authority in whose service the person is engaged. An action by the State for indemnity shall remain possible in the event of intentional wrongdoing or gross negligence. The possibility of bringing an action for damages or indemnity in the ordinary civil courts shall remain open.” 64. Article 839 of the Civil Code (Bürgerliches Gesetzbuch) provides: “1. A public servant who wilfully or negligently commits a breach of his official duties towards a third party shall afford redress for any damage arising in consequence. If the public servant merely acted negligently, he may be held liable only if the injured party is unable to obtain redress by other means. 2. A public servant who commits a breach of his official duties when adjudicating on an action may not be held liable for any damage sustained unless the breach of duty constitutes a criminal offence. This provision shall not apply where the breach of official duties consists in a refusal to discharge a function or a delay in performing it contrary to professional duty. 3. The obligation to afford redress shall not arise where the injured party has wilfully or negligently omitted to avoid the damage by means of a legal remedy.” By Article 253 of the Civil Code, in the version in force until 31 July 2002, compensation for non-pecuniary damage could be awarded only if it was provided for by law. In this connection, Article 847 § 1, which was in force until 31 July 2002, provided for compensation only in the event of physical injury or deprivation of liberty. The new Article 253 § 2 of the Civil Code, as in force since 1 August 2002, has not introduced any amendments relevant to the matters in issue in the instant case. 65. According to the settled case-law of the Federal Constitutional Court, Article 2 § 1 of the Basic Law, in conjunction with the principle of the rule of law as enshrined in Article 20 § 3 of the Basic Law, guarantees effective protection by the law. The rule of law dictates that, in the interests of legal certainty, legal disputes must be settled within a reasonable time (angemessene Zeitof the parties and any other persons (experts or others) acting independently of the court. The longer the proceedings as a whole or at one particular level of jurisdiction, the more pressing the obligation on the court to take steps to expedite or conclude them (see, among other authorities, the decisions of 20 April 1982, no. 2 BvL 26/81, published in the Reports of Judgments and Decisions of the Federal Constitutional Court, volume 60, p. 253 (at p. 269), and of 2 March 1993, no. 1 BvR 249/92, Reports, volume 88, p. 118 (at p. 124)). 66. Where the Federal Constitutional Court considers that the length of pending proceedings has been excessive, it holds that there has been an infringement of the Basic Law and requests the court dealing with the case to expedite or conclude the proceedings. For example, in its decision of 20 July 2000 (no. 1 BvR 352/00 – see Grässer v. Germany (dec.), no. 66491/01, 16 September 2004), concerning the length of proceedings that had lasted twenty-six years, it held: “... In view of the exceptional fact that the proceedings had already lasted fifteen years by the time the case reached the Court of Appeal, that court should not simply have treated it as an ordinary complex case. On the contrary, it should have ... used all available means to expedite the proceedings. If necessary, it should also have sought ways of lightening its own workload. It is not for the Federal Constitutional Court to order the courts to take specific measures to expedite proceedings, that being a matter for assessment by the court dealing with the case. The decision [as to the measures required] cannot be taken in the abstract but must have regard to the specific to the reasons for the length of the proceedings. The fact that the Court of Appeal was dependent on the collaboration of an expert in the instant case was not an obstacle to expediting the proceedings. By way of example, when selecting the expert the Court of Appeal should have taken account of the particular need to speed up its examination of the case and, to the extent that it had a choice between several similarly qualified experts, should have attached decisive weight to the time that appeared necessary to draw up the expert report. The court must keep track of the production of the report by setting deadlines. If there are any matters requiring the involvement of several experts, organisational arrangements calculated to allow the experts to work simultaneously, such as making a copy of the file, should be made wherever possible. ... The legal analysis of the case and the assessment of the evidence relevant for establishing the facts are tasks entrusted to the judges. A review of their findings is only possible in the context of an appeal. In the absence of any specific evidence it is not necessary to assess whether the Federal Constitutional Court may intervene at an earlier stage of the proceedings in exceptional cases, for example, where the court’s manner of proceeding is arbitrary in that it is not based on any objective reasons. ... Seeing that the Court of Appeal has not yet given judgment, the Federal Constitutional Court must confine itself [muss sich beschränken] to a finding of unconstitutionality pursuant to section 95(1) of the Federal Constitutional Court Act. The Court of Appeal is now required, in the light of the above findings, to take effective steps to ensure that the proceedings can be expedited and concluded as quickly as possible. ...” Similar reasoning was adopted in decisions of 17 November 1999 (no. 1 BvR 1708/99), concerning civil proceedings that had lasted fifteen years, and 6 May 1997 (no. 1 BvR 711/96), concerning a case that had been pending before a family court for six and a half years. In its decision of 6 December 2004 (no. 1 BvR 1977/04), concerning civil proceedings pending in the Frankfurt am Main Regional Court since 1989, the Federal Constitutional Court reached the following conclusions: “In view of the exceptional amount of time the proceedings have already taken, the Regional Court can no longer simply treat this as an ordinary complex case. The longer the proceedings, the more pressing the obligation on the court to seek to expedite and conclude them. In such circumstances, the court is obliged to take all steps available to it to speed up the proceedings. Where necessary, the reporting judge must ask to be relieved of other duties within the court ... In accordance with section 95(1) of the Federal Constitutional Court Act, the Federal Constitutional Court is confined to making a finding of unconstitutionality [of the length of the proceedings]. The Regional Court is now required, in the light of the above findings, to take effective steps to ensure that the proceedings can be concluded promptly.” 67. In certain decisions the Federal Constitutional Court, while declining to examine a constitutional complaint lodged with it, has given particular indications to the court complained of. For example, in a decision of 18 January 2000 (no. 1 BvR 2115/98, unreported), it requested the regional court concerned to expedite the proceedings, which had been pending for almost nine years, and to give a final decision promptly (see Herbolzheimer v. Germany, no. 57249/00, § 38, 31 July 2003). Similar reasoning was adopted in a decision of 26 April 1999 (no. 1 BvR 467/99) concerning the length of civil proceedings lasting seven years at one level of jurisdiction, and in a decision of 27 July 2004 (no. 1 BvR 1196/04) concerning civil proceedings that had been pending for three years, in which the Federal Constitutional Court stated that it was assuming that the hearing scheduled for the end of 2004 would be held on the appointed date. In a decision of 15 December 2003 (no. 1 BvR 1345/03), concerning proceedings which had been pending in the Administrative Court for two years but in which the complainant had reason to believe that his case would not be dealt with until late 2005, the Federal Constitutional Court observed that, according to what was at stake for the parties, a case could call for priority treatment and an exemption from the rule on examining applications in the order in which they were lodged. 68. In a number of cases the Federal Constitutional Court, after finding the length of proceedings to be unconstitutional, has set aside the appellate court’s refusal to grant the complainant’s request to expedite the proceedings and has remitted the case to the same court. For example, in a decision of 11 December 2000 (no. 1 BvR 661/00), it set aside a judgment in which a court of appeal had dismissed a special complaint alleging inaction on the part of a family court, and remitted the case to the court of appeal on the ground that there had been a violation of the right to a decision within a reasonable time and that it was not inconceivable that the court of appeal might have reached a different conclusion if it had taken account of the length of the proceedings. The same reasons were given in a decision of 25 November 2003 (no. 1 BvR 834/03). Similar findings were reached in decisions of 14 October 2003 (no. 1 BvR 901/03), concerning a period of five and a half years for an application for legal aid, and 28 August 2000 (no. 1 BvR 2328/96), concerning administrative proceedings that had been pending for ten years. In case no. 1 BvR 383/00 (decision of 26 March 2001), concerning a constitutional complaint about the length of proceedings that had ended, the Labour Court of Appeal had taken eighteen months to draft its judgment and the Federal Labour Court had considered that, notwithstanding the fact that, by law, judgments were to be drafted within a period of five months from the date on which they were delivered in public, there were no grounds for allowing the appeal on points of law in the case before it. The Federal Constitutional Court, holding that there had been an infringement of the Basic Law, considered that such cases could be referred to it as soon as the five-month period had elapsed and remitted the case to a different division of the Labour Court of Appeal. Similar reasoning was adopted in a decision of 27 April 2005 (no. 1 BvR 2674/04). 69. In some cases complainants have declared their constitutional complaint to have lost its purpose where, after the complaint has been lodged, the court in question has taken action by scheduling a hearing or giving a decision. In such cases the Federal Constitutional Court has merely had to rule on costs. In case no. 2 BvR 2189/99 (decision of 26 May 2000), the tax court before which proceedings had been pending for eight years held a hearing after the applicant had complained to the Federal Constitutional Court of their excessive length. He consequently withdrew his complaint and was refunded the legal costs incurred in lodging it in so far as it related to the length of the proceedings. However, in so far as he had challenged statutory provisions, he was required to await the outcome of the proceedings in the tax court. Similar reasoning was adopted in case no. 1 BvR 165/01 (decision of 4 July 2001), concerning proceedings in the social courts. 70. In a decision of 30 April 2003 (no. 1 PBvU 1/02), adopted by a majority of ten votes to six, the Federal Constitutional Court, sitting as a full court, called upon the legislature to create a remedy in respect of infringements of the right to be heard by a court. The final part of the decision contains the following passage: “To redress certain deficiencies in the system of judicial protection, the courts have allowed the creation of special remedies partly outside the scope of written law. These remedies do not satisfy the requirements of constitutional law regarding the transparency of legal remedies [Rechtsmittelklarheit]. Remedies must be provided for in the written legal order and the conditions for their use must be visible to citizens.” In the Federal Constitutional Court’s view, the principle of the transparency of legal remedies resulted from the principle of legal certainty (Rechtssicherheit), which was an integral part of the rule of law. Citizens had to be in a position to assess whether a remedy could be used and, if so, under what conditions. “The current system of special remedies in respect of violations of the right to be heard by a court does not comply with this principle of transparency. Doubts thus exist as to whether a special remedy has to be used first or whether a complaint should be lodged immediately with the Federal Constitutional Court. To avoid forfeiting their rights of appeal, litigants often avail themselves of both remedies at the same time. Such constraints provide a clear illustration of the shortcomings of special remedies in terms of the rule of law. At the same time they create an unnecessary burden for citizens and the courts. The shortcomings referred to above preclude the Federal Constitutional Court from making the admissibility of a constitutional complaint contingent on the use of such special remedies. They are not among the remedies that must be used for the purposes of the first sentence of section 90(2) of the Federal Constitutional Court Act. In so far as such an approach has hitherto been adopted by the Federal Constitutional Court, it can no longer be pursued. ...” In a decision of 19 January 2004 (no. 2 BvR 1904/03), the Federal Constitutional Court nevertheless declined to examine a constitutional complaint by a prisoner concerning the length of proceedings before a court responsible for the execution of sentences, holding that the complainant should first have lodged a complaint alleging inaction. After observing that some courts accepted such a remedy only where the lack of activity could be deemed to amount to a final rejection of the initial application, the Federal Constitutional Court pointed out that other courts applied less stringent criteria. It concluded: “This remedy was not bound to fail in advance. The complainant could have been expected to attempt it. He should first have sought judicial protection from the appropriate courts, even if the admissibility of a remedy was the subject of dispute in the case-law and among legal writers and there was consequently some doubt as to whether the court in question would accept it or not.” In case no. 2 BvR 1610/03 (decision of 29 March 2005), the division of the Hamburg Regional Court responsible for supervising the execution of sentences had remained inactive despite several requests to expedite the proceedings and despite a decision in which the Hamburg Court of Appeal had held that their length was unlawful. The Federal Constitutional Court declared the constitutional complaint admissible in so far as it concerned the court’s inaction but dismissed it in so far as it concerned the impossibility for the Court of Appeal to give a ruling in place of the Regional Court in order to put an end to the lack of activity. The Regional Court’s persistent inaction did not show that the legislative framework failed to satisfy the requirements of Article 19 § 4 of the Basic Law. Besides the possibility of a finding by the appellate court that such inaction was unlawful, there were other remedies for restoring the proper administration of justice, namely an appeal to a higher authority and an action for damages against the State. 71. The special remedy of a complaint alleging inaction (ausserordentliche Untätigkeitsbeschwerde) has been recognised according to varying criteria by a number of courts of appeal. While some have accepted it where there have been significant delays, others have limited its application to cases in which the court’s inactivity cannot be objectively justified and amounts to a denial of justice. Decisions falling into the latter category include those delivered by the Celle Court of Appeal on 17 March 1975 (no. 7 W 22/75, in which the remedy was found to be admissible only if the court’s decision amounted to a denial of justice) and 5 March 1985 (no. 2 W 16/85, in which the remedy was found to be admissible in respect of an unjustified delay by the lower court in dealing with an application for legal aid). The Federal Court of Justice, for its part, has to date left open the question whether, in exceptional cases and with due regard to constitutional law, a special complaint may be allowed in respect of arbitrary inaction that could be construed as a denial of justice on the part of a lower court (see the decisions of 21 November 1994 (no. AnwZ (B) 41/94) and 13 January 2003 (no. VI ZB 74/02)). 72. The Government have cited several decisions in which a court of appeal has allowed a special complaint alleging inaction and has called on the lower court to continue its examination of the case (decisions of the Cologne Court of Appeal (23 June 1981, no. 4 WF 93/81), the Hamburg Court of Appeal (3 May 1989, no. 2 UF 24/89), the Saarbrücken Court of Appeal (18 April 1997, no. 8 W 279/96) and the Bamberg Court of Appeal (20 February 2003, no. 7 WF 35/03)) or has referred the case back to it (the Zweibrücken Court of Appeal’s decision of 15 November 2004 (no. 4 W 155/04)). More recent decisions have clarified the consequences of a complaint alleging inaction. For example, in two decisions of 24 July 2003 (nos. 16 WF 50/03 and 51/03) the Karlsruhe Court of Appeal allowed such a remedy not only where there had been unjustifiable inactivity amounting to a denial of justice, but also where the delay complained of was likely to be prejudicial to a parent claiming parental responsibility, or to the child’s well-being. It observed that it could not take the place of the family court, even if this was the most efficient manner of proceeding. Nor could it impose a procedural timetable on the lower court, since unforeseen circumstances might arise. The action it could take was limited to calling on the court to expedite the proceedings as much as possible. However, to give more substance to its order, it set the court deadlines for dealing with an objection to an expert, for giving the expert six weeks in which to produce his report or, otherwise, appointing a new one, for interviewing the parents and child and for arranging a hearing. The Naumburg Court of Appeal delivered a similar decision on the same subject on 20 December 2004 (no. 14 WF 234/04). In other cases courts of appeal have given decisions in place of the lower courts on account of the delays observed and in so far as the case was ready for decision (decisions of the Zweibrücken Court of Appeal (10 September 2002, no. 4 W 65/02), the Naumburg Court of Appeal (19 July 2004, no. 14 WF 38/04) and the Cologne Labour Court of Appeal (9 June 2004, no. 3 Ta 185/04)). 73. The Government have not produced any decisions of the Federal Constitutional Court on this subject. In a decision of 26 February 1999 (no. 1 BvR 2142/97, unreported – see Mianowicz v. Germany, no. 42505/98, § 40, 18 October 2001), the Federal Constitutional Court refused to examine a constitutional complaint on the following grounds, inter alia: “... The constitutional complaint is inadmissible in so far as the complainant is asking the Federal Constitutional Court to award him damages for the excessive length of the proceedings in issue. If a complainant seeks compensation for pecuniary or non-pecuniary damage sustained by him as a result of an infringement of his fundamental rights, he must first exhaust the remedies available in the civil courts. It is for those courts to assess, where appropriate, the extent to which the provisions on the State’s liability (Article 34 of the Basic Law) and those deriving from the European Convention on Human Rights as incorporated in domestic law form a basis for awarding compensation for the excessive length of proceedings ...” In a decision of 12 March 2004 (no. 1 BvR 1870/01, unreported), the Federal Constitutional Court confirmed that position: “In so far as the constitutional complaint concerns the Labour Court of Appeal’s decision of 18 May 2001 and that court’s alleged inaction, it has become inadmissible because the Court of Appeal has in the meantime given judgment. The complainant is not entitled to seek an ex post facto finding of a violation of the Basic Law on account of the excessive length of the proceedings. There is no statutory basis in constitutional law for applying to have a court decision set aside because of the excessive length of the proceedings, or for seeking damages on that account. Setting aside the Labour Court of Appeal’s judgment of 3 December 2002 would not remedy the violation of the Basic Law resulting from the excessive length of the proceedings but would simply delay them further ...” 74. The Government cited a judgment delivered by the Munich I Regional Court on 12 January 2005 (no. 9 O 17286/03). The case concerned an action for damages in which the claimant alleged that the Bavaria Administrative Court of Appeal had remained inactive for a period of four years and seven months. He had lodged a special complaint with the Federal Administrative Court alleging inaction on that account. Shortly afterwards, the Administrative Court of Appeal made an interlocutory order in the proceedings, with the result that the complainant informed the Federal Administrative Court that his complaint alleging inaction had lost its purpose and that his claim now related solely to the reimbursement of his legal fees. The president of a division of the Federal Administrative Court replied that as no official proceedings had been instituted before it – the complaint alleging inaction being a special remedy – it was unnecessary to rule on the question of costs. The Regional Court granted the claimant approximately EUR 1,400 in damages for the legal fees incurred within the limits of the applicable rates. The court further noted that the claimant had satisfied the conditions in Article 839 § 3 of the Civil Code by having appealed to a higher authority before bringing his action before it. The Karlsruhe Regional Court, however, awarded compensation in a decision of 9 November 2001 (no. 3 O 192/01) for damage sustained as a result of the length of proceedings in the Saarland Court of Appeal after the Federal Constitutional Court had found their length to be unlawful (decision of 20 July 2000, no. 1 BvR 352/00 – see paragraph 66 above). It pointed out that State liability was not precluded by the “judicial privilege” enshrined in the first sentence of Article 839 § 2 of the Civil Code, since that rule did not apply in the event of inaction on the court’s part. The decision has not become final (see the Court’s decision in Grässer, cited above).
| 1
|
train
|
001-72757
|
ENG
|
GRC
|
CHAMBER
| 2,006
|
CASE OF EKO-ELDA AVEE v. GREECE
| 1
|
Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
|
Anatoly Kovler;Christos Rozakis;Françoise Tulkens;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova
|
8. The applicant is a limited company specialising in petroleum products. Its predecessor was called Greek petroleum, oil and lubricants – Industrial and commercial limited company (EKO AVEE). 9. On 8 May 1987 the applicant company paid the tax authorities 137,020,491 drachmas (GDR) (approximately 402,338 euros (EUR)) as an advance payment on the income tax due for the tax year 1987. On 11 May 1987 the tax authorities granted the applicant company a 10% reduction on the amount paid, as a bonus for paying the full advance payment due without requesting to pay by instalments. Accordingly, the advance tax payment ultimately paid by the applicant company amounted to GDR 123,387,306 (approximately EUR 362,105). 10. On 10 May 1988 the applicant company filed its tax return with the tax authorities for the year 1987. The return showed that the company had sustained a substantial loss of profit, which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid. 11. On 24 June 1988 and 9 December 1991 the applicant company sought a refund of GDR 123,387,306 from the Athens tax authorities dealing with limited companies, which was the amount levied in income tax for the year 1987. On an unspecified date the State refused to comply with its request. 12. On 27 December 1991 the applicant company brought proceedings against the State in the Athens Administrative Court. It requested a refund, under section 38(2) of Law no. 1473/1984, of the sum of GDR 123,387,306 that had been unduly paid in income tax. It also claimed default interest on that amount accruing from 10 May 1988, when the State had been informed that the tax had been unduly paid, up until payment. The applicant company based its claims on Article 345 of the Civil Code, which provides for the payment of default interest in the event of a pecuniary debt. 13. Law no. 2120/1993 was published on 4 March 1993. Section 3 of that Law provides that the State will pay interest in the event of a refund of tax unduly paid. With regard to cases pending at the time of publication of the Law, it provides that interest shall start to accrue on the first day of the month following a period of six months after its publication. 14. On 12 November 1993, prior to the hearing in the case listed for 23 September 1994, the State refunded the applicant company GDR 123,387,306, which corresponded to the tax it had paid. In its submissions before the Administrative Court, the applicant company limited its claims to statutory interest for the delay in paying the refund. 15. On 26 January 1995 the Administrative Court declared the applicant company’s application inadmissible (decision no. 512/1995). On 3 November 1995 the applicant company appealed. 16. On 6 June 1996 the Athens Administrative Court of Appeal declared the applicant company’s appeal admissible, but held that it was ill-founded on the ground that at the material time the Code for the Collection of Public Revenues did not provide that the State was liable to pay interest in the event of a delay in refunding tax unduly paid. Moreover, the court held that Article 345 of the Civil Code did not apply to the present case, since the provision governed only civil-law relations (decision no. 4042/1996). 17. On 27 June 1997 the applicant company lodged an appeal on points of law. 18. On 8 November 2000, by judgment no. 3547/2000, the Supreme Administrative Court dismissed the appeal. It found that the State was not bound to pay late-payment interest in the event of tax unduly paid. Such an obligation did not derive from the relevant provisions of the Civil Code relating to late-payment interest because these did not apply to a debt arising from a public-law relationship. Furthermore, the Supreme Administrative Court pointed out that no such obligation had been incumbent on the State prior to Law no. 2120/1993, published on 4 March 1993 (see paragraphs 21 and 22 below). That judgment was finalised and certified by the court on 26 October 2001. 19. The relevant Articles of the Civil Code provide: “A creditor of a pecuniary debt is entitled, when serving notice to pay, to claim default interest stipulated by law or by the legal document concerned without having to prove loss. Subject to any contrary statutory provision, a creditor who also establishes other loss is entitled to claim compensation for that as well.” “A debtor owing a pecuniary debt, even if not served with a notice to pay, shall be liable to pay statutory interest accruing from the date of service of legal proceedings relating to the debt due.” “Anyone who has been unjustly enriched by means of or to the detriment of another’s property shall make restitution of the gain. This obligation shall apply, inter alia, in the event of a payment made unduly or a service rendered for a purpose that has not been realised or has ceased to exist or is illegal or immoral. ...” “Anyone who benefits [inter alia from unjust enrichment] shall be subject to the same obligations as if a writ of action had been served on him: (1) in the event of a claim for an amount unduly received, if he was aware that the debt did not exist or from the time when he became aware; (2) in the event of a claim on grounds of an illegal or immoral purpose.” 20. Article 6 of Legislative Decree no. 356/1974 provides: “Debts due and owing from the State shall be subject to a late-payment surcharge that shall accrue from the first working day following the date on which the debt falls due. The surcharge shall accrue at a rate of 1% per month’s delay.” 21. Section 38(2) of Law no. 1473/1984 provided that the State was bound to refund tax unduly paid without having to pay interest. Section 3 of Law no. 2120/1993 amended section 38(2) of Law no. 1473/1984. That provision, as amended, now provides: “Any direct or indirect, principal or additional, tax or duty, or any fine, recognised in a final decision of an administrative court as having been unduly paid ... shall be offset or refunded with interest at the rate applicable to State bonds for a three-month period. ... With regard to cases pending at the time of publication of this statute, interest shall start to accrue from the first day of the month following a period of six months after publication of the said statute.” 22. In two judgments (nos. 1274 and 1275/2002) the Supreme Administrative Court held that the State had an obligation to pay default interest even in respect of cases that were pending, that is, those in which the tax unduly paid had not yet been refunded on the date of publication of Law no. 2120/1993 (4 March 1993). According to the Greek Supreme Administrative Court, that obligation was incumbent on the State from the date on which proceedings were brought in the relevant courts.
| 0
|
train
|
001-90957
|
ENG
|
POL
|
ADMISSIBILITY
| 2,008
|
STUMPE v. POLAND
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicant, Mr Gerhard Stumpe, is a German national who was born in 1929 and lives in Eppendorf. He 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, §§ 4-5, ECHR-2008-...). The applicant submits that he and his family were forced to leave their 7.96 hectare farm in Falkenhain (at present Sokołowiec in Poland). Each person was allowed to take only the barest personal essentials that they could hold in their hands. 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 Gmb & CO. Kg A. A., cited above, § 3). Afterwards, they were interned in Jelenia Góra where they were required to perform forced labour and seriously ill-treated by the Polish militia. Finally, they were expelled from Poland. On 6 December 1945 they reached the Soviet occupation zone. The family’s property was confiscated by the Poles. The applicant has still not been allowed to return to his home and has been refused restitution of his family’s 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
|
001-89504
|
ENG
|
UKR
|
CHAMBER
| 2,008
|
CASE OF KHAYLO v. UKRAINE
| 4
|
Violation of Article 2 - Right to life (Procedural aspect)
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
|
5. The applicants were born in 1954 and currently live in Kyiv. 6. In 1998 the applicants paid Mrs N.T. and Mrs T.T. the purchase price of a house located at D. street in Dnipropetrovsk and moved into it. Instead of registering the transaction in accordance with the applicable law, however, the applicants had the nominal house owners issue an authorization to Mr B., to whom the first applicant owed a debt, allowing him to perform any transactions relating to the house. As a result of the first applicant defaulting on his debt, in September 1999 Mr B. signed this house over as a gift to his daughter, although the applicants continued to live in it. 7. In 1999 Mr B. instituted civil proceedings against the applicants seeking repayment of the debt and various compensatory payments. The applicants lodged a counterclaim, seeking to confirm the validity of their unregistered purchase of the house. By the final decision of 29 August 2007 the claims of both parties were dismissed. 8. Since 1999 the applicants also lodged numerous complaints with law enforcement authorities alleging that they had been deprived of their house and money by gang members and that their lives were in danger on account of threats from Mr B. In support of their allegations, the applicants submitted tapes of their telephone conversations with Mr B., in which he had referred to his organized crime connections. 9. Criminal proceedings were instituted, in which Mr A.Kh., the first applicant’s cousin and a member of the applicants’ household, born in 1957, acted as one of the witnesses. 10. On 3 May 2001 the applicants’ family was provided with police bodyguards to secure their safety in connection with these proceedings. On 1 November 2001 the measure was lifted with reference to the first applicant’s inappropriate behaviour towards the guards. By the final decision of 2 September 2002 the Supreme Court upheld the earlier decisions finding the lifting of the measure lawful. The applicants subsequently made unsuccessful attempts to have the matter reopened. 11. Mr B. was eventually tried, but acquitted of extortion, as the applicants’ tapes were not admitted as permissible evidence. However the applicants insisted on bringing various other criminal actions against him, some of which appear to be currently pending. 12. At 9 a.m. on 30 April 2002 the applicants informed the Zhovtnevyy District Police that they had found Mr A.Kh. dead in his bed in the annex to their house at D. street. 13. On the same day several police officers and medical experts in presence of lay witnesses broke into the annex which was purportedly locked from the inside. A decomposing corpse was found in the bed on its back, with the head on the pillow. The group recorded no traces of a struggle or other evidence suggesting homicide. Pictures of the site were taken; however, they could not be developed on account of a defect in the film. The body was taken to the mortuary. However, as 1 May was a national holiday, the autopsy was not carried out until 2 May 2002. According to the applicants, no precautions were taken to prevent decomposition of the body in the mortuary. 14. Following the autopsy of 2 May 2002, the experts found it impossible to establish the cause of the death as the body had significantly decomposed. They further noted that no broken bones or other visible injuries could be found on the body. Finally, they suggested that the death, which must have occurred on or around 28 April 2002, was likely to have been caused by atherosclerosis of brain and heart vessels. 15. On 20 May 2002 the police decided not to institute a criminal investigation in relation to the death having found no appearance of a homicide. 16. The applicants appealed maintaining that Mr A.Kh. could have been killed late 28 April 2002 by a gang in which Mr B. was involved or by other members of organized crime groups who feared him as an important witness in criminal proceedings, in which the applicants were the aggrieved parties. They noted, in particular, that they had found rubber gloves and a hammer of an unknown origin on the table in his room, which could have been used to murder Mr A.Kh. Furthermore, Mr A.Kh.’s height according to his records had been 196 cm, while the height of the autopsied corpse was recorded as being 177 cm. Finally, Mr A.Kh. had no record of atherosclerosis or any other life-threatening illness. 17. On 4 June 2002 the Dnipropetrovsk Prosecutors’ Office remitted the case for additional investigation. It found, in particular, that in light of the second applicant’s report about having seeing Mr A.Kh. alive on the evening of 28 April 2002, it was strange that his body had decomposed so rapidly. It further noted that a photographic record of the site had not been prepared, the deceased’s medical record had not been checked and the applicants’ assertion that he could have been killed by individuals involved in organized crime had not been investigated. 18. Subsequently on numerous occasions (20 June 2002, 18 July 2002, 21 October 2002, 7 January 2003 and 26 March 2003) the law enforcement authorities refused to initiate criminal proceedings having found no evidence of a homicide. All of these decisions were subsequently annulled by the prosecutors’ office (on 10 July 2002, 27 September 2002, 2 January 2003, 12 February 2003 and 1 October 2003) as having been based on only superficial inquiries. 19. On 22 October 2003 the Zhovtnevyy District Prosecutors’ Office refused to initiate criminal proceedings. Following additional questioning, it found, in particular, that the difference in height could have been due to a clerical error by mortuary personnel. As regards the gloves and the hammer, although certain witnesses had recalled seeing them, these objects were no longer available and it was not possible to determine their origin. Furthermore, although no mention of atherosclerosis or any other life-threatening illness had been found in Mr A.Kh’s medical records, regard being had to the fact that the annex had been locked from inside, no traces of any struggle or disorder had been noticed in the room and no injuries had been found on the body, there was no reason to suspect a homicide. 20. On 6 April 2004 the Zhovtnevyy District Court of Dnipropetrovsk annulled this decision and remitted the case for additional investigation. It referred to several omissions in the preliminary inquiries, such as the failure to measure the body at the site, failure to establish a probable cause of death against the absence of any record concerning atherosclerosis and the superficial examination of the door to the annex. In particular, the results of the investigation stated that the door could only be locked from the inside, while, according to a photographic record of the scene, the door had both a lock and a padlock. 21. On 1 February 2005 the law enforcement authorities refused to institute criminal proceedings. 22. On 21 April 2005 the General Prosecutors’ Office annulled this decision, having found that the’ Office. 23. On 10 March 2006 the Prosecutors’ Office discontinued the criminal proceedings having found no evidence of a homicide. It noted, in particular, that due to the lapse of time witnesses could not accurately recall certain details. On the other hand, the witnesses clearly recalled having seen no traces of a struggle or other signs of a homicide. Mr B., implicated by the applicants as being involved in the murder, could not be interviewed as he had moved abroad. His son-in-law denied any family involvement in Mr A.Kh.’s death. The discrepancy in the records concerning Mr A.Kh.’s height appeared to be due to a typographical error by the mortuary registrar. The gloves on the table had been left by one of the medical experts. As regards the hammer, the first applicant had mentioned having taken it together with the gloves and Mr A.Kh.’s linen, but its existence was doubtful as he had refused to surrender these objects without explanation. The investigation further found that the applicants’ hypothesis that Mr A.Kh. had been killed late on 28 April 2002 was improbable, in particular, as the case file records contained a certificate from Mr A.Kh.’s employer that he had undergone a medical test on the morning of 29 April 2002. 24. In June 1999 the first applicant offered the family’s other house, located at V. street in Dnipropetrovsk, as collateral for a bank loan of 200,000 hryvnyas (UAH). In June 2000 the house at V. street was sold in default at a public auction to Mr R.K. In September 2002 Mr R.K. leased it out to Mr S.K., who moved in with his family. 25. The applicants unsuccessfully attempted to secure the criminal conviction of the individuals implicated in the sale and instituted civil proceedings, claiming back the house. As appears from scarce documents presented by the applicants, these proceedings are currently still pending. 26. Pending examination of their proceedings for annulment of the sale, on 15 October 2002 the applicants broke the lock on the door and entered the house with their three acquaintances – Mrs Ch., Mrs S. and Mr O.V. They refused to leave the house at the tenants’ request. An argument and a fight between the tenants and the applicants broke out. The police were allegedly called, but the applicants explained that they were the owners of the house and the police left. Several hours later Mrs Ch. and Mrs S. left, while the applicants and Mr O.V. remained for the night. 27. At about 10 a.m. on 16 October 2002 the tenants called the police again, complaining about the applicants’ and Mr O.V.’s obnoxious behaviour: smoking inside the house, putting pressure on them to leave, threatening them and swearing at them. Several police officers from the special detachment responsible for keeping order in courts entered the premises and ordered the applicants and Mr O.V. to follow them out of the house. The applicants and Mr O.V. protested. The first applicant and Mr O.V. were eventually restrained and handcuffed and the group was brought to the police station. According to the police records, the applicants stayed in the police station from 11 a.m. to 14 p.m. pending the drawing up of a report about an administrative offence. According to the applicants, they stayed in the police station for seven hours. 28. On the same date the first applicant and Mr O.V. stood trial before the Zhovtnevyy Court accused of “malicious resistance to the lawful demands of law-enforcement officers” (an administrative offence). They were accused, in particular, of grabbing the officers by their uniforms, pushing them, threatening and swearing at them in response to their demands to cease disorderly conduct. The court discontinued the administrative proceedings having found that the defendants’ conduct at the house warranted a criminal investigation on account of the possible trespass of the dwelling. The case was remitted to the Zhovtnevyy District Prosecutors’ Office. Subsequently (on 23 October 2002) the Prosecutors’ Office decided not to press charges in relation to the trespass. They found that the defendants’ actions could potentially qualify as infliction of minor bodily injuries on Mr S.K. and vigilantism, which could be prosecuted privately by the aggrieved party. 29. At the same time, following the first applicant’s medical examination of 17 October 2002, he was certified as having sustained light bodily injuries (several bruises and a scratch on a finger), which could have been inflicted on or around 16 October 2002. On 21 November 2002 the second applicant was certified as having sustained in the same period light bodily injuries resulting in short-term health problems (cerebral concussion, for which she had undergone out-patient treatment). 30. The applicants sought to institute criminal proceedings against the police officers for assault and battery, infliction of bodily injuries, disorder, racketeering, abuse of office and premeditated unlawful apprehension and detention. 31. On 14 November 2002 and 17 December 2002 their requests were rejected following preliminary inquiries and the interviews of the parties involved for lack of any evidence suggesting criminal conduct on the officers’ behalf. 32. On 10 October 2003 the Zhovnevyy Court remitted the case for additional investigation. The court found, in particular, that the investigation had only established that the applicants were apprehended for good cause, 33. On 10 December 2003 the Dnipropetrovsk Regional Court of Appeal upheld this decision. 34. On 3 February 2004 the Prosecutors’ Office refused to initiate criminal proceedings. It found, in particular, that the cerebral concussion as well as other injuries had been sustained in the course of the fight with the tenants on 15 October 2002 and that the force used by the police officers to restrain and arrest the applicants had not been disproportionate. The investigation referred, primarily, to the testimonies of the police officers and other parties involved. In particular, the applicants testified that they had been battered by the tenants on 15 October 2002; the tenants complained that they had been forced to defend themselves against the applicants, who had beaten them; Mrs Ch. and Mrs S. reported having seeing Mr S.K.’s wife beating the second applicant with a slipper on the head and banging her head against the wall. Several other witnesses reported having seen the police officers taking the first applicant and Mr O.V. handcuffed out of the house, while the latter were resisting and swearing. 35. On 24 May 2004 the Zhovtnevyy Court upheld this decision following contested proceedings. On 27 April 2005 the Dnipropetrovsk Regional Court of Appeal rejected the applicants’ appeal. 36. In July 1999 the applicant lent UAH 130,000 to Messrs V. and R., who were leaders of local NGOs. They had requested the loan allegedly for the arrangement of transportation of humanitarian aid (clothes and shoes) donated by a U.S.-based foundation, although according to relevant documentation the donor was responsible for all transportation costs. Subsequently the first applicant was repaid some one third of the loan and given some 4,000 kilos of goods from the humanitarian aid cargo, which he stored in the house at D. Street and subsequently surrendered to the police. 37. In December 1999 the applicants lodged various criminal complaints about having been allegedly defrauded by Messrs V. and R., who had never repaid the sum loaned to them for the transportation of humanitarian aid. Eventually, on 21 April 2000 the Dnipropetrovsk Prosecutor instituted a criminal investigation into the circumstances surrounding the transportation and distribution of the cargo. The alleged perpetrators were questioned in these proceedings as witnesses. 38. Although it appears that no formal charges were brought against Messrs V. and R., on 28 April 2000 the first applicant was admitted in the proceedings as an aggrieved party and eventually (in September 2001) as a civil claimant. The second applicant appears to have been questioned only as a witness. 39. On 30 October 2000 the proceedings were discontinued for lack of evidence of criminal conduct towards the aggrieved party. 40. On 26 December 2000 the General Prosecutors’ Office ordered the resumption of the proceedings. 41. Between April 2000 and February 2004 the investigative authorities interviewed numerous recipients of the aid and officials involved in its distribution; ordered several financial expert assessments, commissioned the collection of information from the U.S.A. donor organization and examined several volumes of documents concerning the distribution of the aid. 42. Messrs V. and R. acknowledged having received the money from the first applicant. However, they alleged that a portion of it had been repaid in cash. The remaining amount was, in their opinion, the price paid by the first applicant for purchasing part of the cargo. The first applicant intended to sell it for profit, in spite of the fact that he had been aware of the statutory ban on selling humanitarian aid and about the official undertaking of the U.S. donor to pay all transportation costs. The applicant had received his part of the cargo in October 1999, so Messrs V. and R. had discharged their civil obligation in his respect. 43. The first applicant, for his own part, disputed the exact amount of cash repaid to him and contended that he had never intended to sell the goods. He had merely agreed to store a portion of the cargo as a guarantee for repayment of the remainder debt. 44’s and R.’s possible abuse of office in handling humanitarian aid. As regards their involvement in defrauding the first applicant, on 11 February 2004 the proceedings were discontinued for lack of evidence of criminal conduct and in view of the private-law nature of the dispute between the parties. Both applicants appealed against this decision. Their appeals were dismissed by the courts of three levels of jurisdiction on 27 May and 20 September 2004 and 24 May 2005 respectively. 45. In the meantime, on 19 July 2005 the proceedings were re-opened pursuant to an order of the General Prosecutors’ Office and finally discontinued on 28 December 2006, essentially on the same grounds as before. The applicants’ appeals against the decision to discontinue the proceedings were rejected by the courts of three levels of jurisdiction. 46. In March 2002 the applicants instituted civil proceedings in the Zhovtnevyy District Court of Dnipropetrovsk seeking various compensatory payments from Messrs V. and R. 47. On 11 April 2006 the Zhovtnevyy Court left their action without consideration referring to the applicants’ numerous failures to appear at the hearings. The court noted, in particular, that the second applicant had appeared only once (on 21 May 2002). Neither applicant had appeared at the hearings scheduled for 4 October, 7 November and 13 December 2005, 20 January, 27 February, 20 March and 11 April 2006, having presented either unsatisfactory or no excuses. In light of all of the above, the court concluded that the applicants had no genuine interest in pursuing their case and left their action without consideration. 48. The applicants appealed. They have not informed the Court about the outcome of the appeal. 49. In September 2003 Mr R. was hospitalised with cerebral concussion and bruises all over his body. On 29 October 2005 a criminal investigation of the incident was discontinued in view of the probability that Mr R., being heavily intoxicated, had fallen from an elevated surface. The applicants demanded the resumption of the investigation, alleging that Mr R. had been battered by gang members in order to prevent his testifying in criminal proceedings related to their property interests. Their appeals were ultimately dismissed by the courts as lacking locus standi. 50. The applicants further contended that the gang members made several attempts to kill them, in particular in June 2002 by way of instigating a traffic accident. 51. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgments in the cases of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006), and Yakovenko v. Ukraine (no. 15825/06, §§ 46-47, 25 October 2007). 52. According to Article 221 of the Code of Civil Procedure of 18 July 1963, the courts were obliged to suspend civil proceedings in the event of the impossibility of determining the case pending determination of a criminal case. The new Code of Civil Procedure, adopted on 18 March 2004, reflected the same obligation in Article 201.
| 1
|
train
|
001-113629
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,012
|
S.R. v. THE NETHERLANDS
| 3
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
|
1. The applicant, Ms S.R., is a Netherlands national who was born in 1952 and lives in Rotterdam. She was represented before the Court by Mr J. van Broekhuijze, a lawyer practising in Ridderkerk. The respondent Government were represented by their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs. 2. On 31 July 2006 the public prosecutor (officier van justitie) submitted a request to the Regional Court (rechtbank) of Rotterdam for a provisional court authorisation (voorlopige machtiging: hereafter “provisional order”) to have the applicant committed to a psychiatric hospital pursuant to the Psychiatric Hospitals (Compulsory Admissions) Act (Wet bijzondere opnemingen in psychiatrische ziekenhuizen; “the Act”). The prosecutor’s request was based on a medical report issued by a psychiatrist who was not involved in the treatment of the applicant. 3. On 17 August 2006 the Regional Court held a hearing in the presence of the applicant, her counsel, two social-psychiatric nurses, a priest and a sister of the applicant. The Regional Court heard the applicant’s general practitioner and the applicant’s own psychiatrist. 4. It adjourned the proceedings in order to enable the prosecutor to request authorisation for the applicant to be committed to a psychiatric hospital for observation (observatiemachtiging; hereafter “observation order”) instead (section 14h of the Act, see below). 5. On 25 August 2006 the public prosecutor lodged a request for an observation order with the Regional Court. The request was accompanied by a new medical report dated 24 August 2006. 6. On 28 August 2006 the Regional Court rejected the request for the provisional order and instead issued an observation order valid until 18 September 2006. In respect of the latter, it held as follows: “From the medical report and the clarification provided during the hearing by the physician treating the person concerned it appears that the situation is as follows: The person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia. There are serious reasons for believing that a disturbance of the mental faculties of the person concerned will lead her to pose the following danger to herself: The person concerned is, probably as a result of her paranoid delusion, very suspicious of her neighbours. The person concerned is said to cause noise disturbance at night. There is a danger that, through her bothersome behaviour, the person concerned will provoke aggression of others against herself. The committal to and stay in a psychiatric hospital of the person concerned is intended for examination whether she is suffering from a disturbance of the mental faculties and whether that disturbance will lead her to pose a danger to herself. The danger cannot be averted through the intervention of persons or institutions outside a psychiatric hospital. The person concerned has not shown the necessary willingness to stay in a psychiatric hospital voluntarily.” 7. On 30 August 2006 the applicant was admitted to a psychiatric hospital. 8. On the same day she lodged an appeal on points of law (cassatie) with the Supreme Court against the issuing of the observation order. She submitted grounds of appeal including, as relevant to the case before the Court, that in breach of section 8(1) of the Act she had not been heard by the Regional Court before the observation order was issued and that, by providing that persons could be committed in order to determine whether they were of unsound mind, section 14 sub h of the Act violated Article 5 § 1 (e) of the Convention, which allowed the detention of persons of unsound mind only after they had been determined actually to be of unsound mind. 9. In parallel, the applicant started summary injunction proceedings (kort geding) before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of Rotterdam, seeking the immediate suspension of her committal. On 12 September 2006 the Provisional Measures Judge gave judgment dismissing the applicant’s claims. The reasoning included the finding that the hearing of 17 August 2006 had been focused on the deprivation of liberty and that the applicant had been informed of the likelihood that an observation order would be given; a statement made by the applicant’s representative to the effect that the judge had informed him by telephone that another hearing would take place was dismissed as unproven. 10. The applicant remained in hospital until 21 September 2006. 11. On 15 December 2006 the Supreme Court declared the applicant’s appeal inadmissible for lack of interest as the order in issue had already lapsed in the meantime. However, in view of the relevance of the legal questions raised by the grounds for the appeal, the Supreme Court nonetheless addressed the merits of a number of her grounds of appeal. 12. Its reasoning, obiter dictum, was as follows: “4.1. The Supreme Court nonetheless considers it useful, in view of the importance of the legal questions arising from the points of appeal, to consider the following. 4.2. The observation order given by the Regional Court in pursuance of section 14 of the Psychiatric Hospitals (Compulsory Admission) Act is grounded on the Regional Court’s assessment of the state of the person concerned, which is in the following terms: [etc., see paragraph 6 above] 4.3. Point of appeal no. 9 argues that section 14h(1) of the Psychiatric Hospitals (Compulsory Admission) Act is incompatible with Article 5 § 1 (e) of the Convention, because that provision only allows the detention of persons actually of unsound mind, whereas section 14(1) of the Psychiatric Hospitals (Compulsory Admission) Act provides for compulsory admission to determine whether there is an impairment of the mental faculties. 4.4. On this point, the Supreme Court takes the following view. It follows from the case-law of the European Court of Human Rights cited in ... the advisory opinion of the Advocate General that it is, in principle, permissible to deprive persons of unsound mind of their liberty if it has been reliably shown (op deugdelijke wijze is aangetoond) that the person concerned is of unsound mind. Nevertheless, the Court has considered it acceptable that a person may briefly be detained in a psychiatric hospital involuntarily so that it can be determined whether he or she is suffering from a mental illness, but only in urgent cases or when the person concerned is detained in connection with his or her violent behaviour, the examination then having to take place immediately after the deprivation of liberty. In all other cases, an examination into the mental state must precede any deprivation of liberty. If however such an examination proves impossible because the person concerned refuses to submit to examination, review by a medical expert on the basis of the file may suffice, in the absence of which it cannot be assumed that the person concerned is mentally ill. 4.5. An observation order within the meaning of section 14h of the Psychiatric Hospitals (Compulsory Admission) Act is intended, according to the second paragraph of that provision, to determine whether there is a disturbance of the mental factulties and whether the disturbance causes the person concerned to pose a danger to him or herself. The order can be given if, as section 14h(1) provides, there is serious reason to believe (het ernstig vermoeden bestaat) that he or she is suffering from a disturbance of his or her mental faculties (stoornis van de geestvermogens) which could lead him or her to pose a danger to him- or herself. Section 14h(4) provides that the application for an observation order must be accompanied by a medical report as referred to in that provision, from which it appears that there is a case as referred to in section 14h(1). Taking this into account, the Supreme Court considers it acceptable under Article 5 of the Convention to give an observation order only if on the basis of the medical report submitted it can be assumed, with sufficient certainty, that the person concerned is suffering from a disturbance of the mental faculties requiring further examination within the framework of the observation and there is serious reason to believe that that disturbance causes him or her to pose a danger to him or herself. To that extent, it is correctly argued that section 14h, in setting the condition that there is serious reason to believe that the mental disturbance should lead the person concerned to pose a danger to him- or herself, gives a wider description of the cases in which an observation order can be granted than is compatible with Article 5 of the Convention. 4.6. Nonetheless, and even assuming that the appeal on points of law were admissible, the point of appeal would not have led the Supreme Court to quash the Regional Court’s judgment. The Regional Court has in fact found, on the basis of the medical report submitted, that the person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia and that there is serious reason to believe that the person concerned, as a result of this disturbance of her mental faculties, displays noisome behaviour and thereby provokes the aggression of others against herself. In so finding, the Regional Court has not applied section 14h of the Psychiatric Hospitals (Compulsory Admission) Act in a way that is incompatible with Article 5 of the Convention. 4.7. Points of appeal 8 and 12 ... complain that the Regional Court acted contrary to section 8(1) of the Psychiatric Hospitals (Compulsory Admission) Act by deciding without hearing the person concerned and on the basis, additionally, of a new medical report which the person concerned has not been able to challenge. The Regional Court has heard the person concerned on 17 August 2006, it is true, but that concerned the public prosecutor’s application ... of 31 July 2006 for a povisional order within the meaning of section 2 of the Psychiatric Hospitals (Compulsory Admission) Act. It appears that the Regional Court then applied section 8a of the Psychiatric Hospitals (Compulsory Admission) Act, after which the public prosecutor lodged the application for an observation order which the Regional Court accepted in its decision of 28 August 2006, which later application, according to the documents contained in the case file, was accompanied by a new medical report dated 24 August 2006. The Psychiatric Hospitals (Compulsory Admission) Act does not allow a person concerned to be heard in advance, nor that a person concerned should waive in advance his or her right to be heard on an application for an order based on the Psychiatric Hospitals (Compulsory Admission) Act that has yet to be submitted.” 13. The applicant has submitted a letter from the medical director for compulsory admissions (geneesheer-directeur BOPZ), dated 31 August 2006, which is in the following terms: “Further to your letter ... received on 31 August 2006, we herewith confirm in writing our telephone conversation of this afternoon concerning the observation order for Ms S.R. We do not subscribe to the ground you rely on to argue that the effect of the decision to give an observation order is suspended. We will therefore not comply with your request to release Ms S.R. from our hospital. ... We have a valid judicial decision for an observation order for Ms S.R. Section 14h(4) taken together with section 10(1) of the Psychiatric Hospitals (Compulsory Admissions) Act provides that the court’s decision is immediately enforceable (bij voorraad uitvoerbaar). Section 14h(4) taken together with section 9(5) of the Psychiatric Hospitals (Compulsory Admissions) Act provides that no appeal on the merits (hoger beroep) lies against the decision. It is however possible to lodge an appeal on points of law with the Supreme Court. ...” 14. The applicant states that she requested the public prosecutor to seek a decision of the court in the matter, but that the public prosecutor refused. 15. The applicant has submitted a letter from a psychiatrist, dated 23 March 2007, on the letterhead stationery of the psychiatric hospital. It reads as follows: “The patient was in our care from 30 August 2006 until 21 September 2006. Psychiatric history: 2004-05: The Regional Institute for Out-Patient Mental Health Treatment (Regionaal Instituut voor Ambulante Geestelijke Gezondheidszorg; “RIAGG”) tried to develop a therapeutic relationship with the patient because of persistent complaints from several neighbours about noise. 2006: EMC Out-Patient Clinic. Conclusion: A 54-year-old woman who has serious problems with her neighbours, two conflicting stories exist. It is not possible to reach a diagnosis on the information available. Anamnesis and progress: The patient is very loquacious and towards the end of discussions gets bogged down in a story line that cannot any longer be followed. The content of the discussions concerns all the injustice that has been done to her over the last few years by her RIAGG carer and the neighbours. She also alleges that injustice is done to her by an institutional landlord from whom she rents her second home. None of this can be verified. In other words, it is difficult to assess whether her allegations or ‘innocent remarks’ are within the bounds of what is normal or paranoid delusions (paranoïde wanen). Psychiatric examination: Well-groomed, is busy at the table in the lounge making some loose notes. She is lucid, her recognition of persons and orientation in time and place are intact. Her perceptive faculties appear unimpaired but the patient will not discuss perception at any length. Her thinking is very diffuse and for a short period incoherent. Her mood is normal with a somewhat pronounced, not always quite adequate, modulating effect. Provisional conclusion: As far as can be established on the basis of the observation [emendation by the Court], neither the observation of the patient’s behaviour nor repeated psychiatric examination have provided clear indications of psychosis. Mild psychotic symptoms can however be dissembled. Classification according to DSM-IV: Axis I: Diagnosis deferred Axis II: Diagnosis deferred.” 16. At the time of the events complained of, the Psychiatric Hospitals (Compulsory Admissions) Act, in its relevant parts, provided as follows: “1. The court may, on the application of the public prosecutor, issue provisional authorisation for committal of a person whose mental faculties are disturbed to be admitted and kept in a psychiatric hospital. ...” “1. Before taking a decision on the application for provisional authorisation the court shall hear the person in respect of whom the authorisation is sought, unless it finds that the person concerned is not willing to be heard. ...” “If on the basis of its examination the Regional Court has doubts as to whether in the given circumstances a measure other than that requested might not be more suitable, it may communicate these doubts to the public prosecutor; if necessary the Regional Court shall indicate at the same time that its consideration of the case will be continued at a later time.” “... 5. No appeal on the merits shall lie against the decision to grant provisional authorisation. ...” “1. The decision of the court shall be immediately enforceable. ...” “1. The court may, on the application of the public prosecutor, issue an authorisation for committal for observation to have the person concerned admitted and kept in a psychiatric hospital if there is serious reason to believe (het ernstig vermoeden bestaat) that he or she is suffering from a disturbance of his or her mental faculties (stoornis van de geestvermogens) which could lead him or her to pose a danger to him- or herself. 2. An authorisation for committal for observation shall serve to examine whether: a. a disturbance of the mental faculties exists; and b. such disturbance leads the person concerned to pose a danger to him- or herself. 3. The authorisation for committal for observation shall be valid for no more than three weeks after the day on which the person concerned is admitted to a psychiatric hospital, without prejudice to [section ... 49]. 4. Sections ... 9(1), first sentence, 9(2)-(5), [and] 10(1)-(3) ... shall apply by analogy, it being understood that it must appear from the medical report ... that the situation is one as referred to in the first paragraph.” “1. If the person in relation to whom the public prosecutor had submitted a request for an order as referred to in this chapter [including, at the time, section 14h], or for a decision ordering release ..., has suffered damage as a result of the failure of the court or the public prosecutor to observe one of the provisions in this chapter [which includes the above provisions] ..., the court shall, at the request of the person concerned, award him or her damages to be determined in equity at the State’s expense.” “1. A patient held in a psychiatric hospital in the application of chapter II, §§ 1 through 4 [i.e. including sections 8, 9, 10 and 14h of this Act] ... can ask the medical director of the psychiatric hospital for the conditional release or release of the patient from the hospital. ... 3. In case of a refusal, the person who has received the decision ... may request the public prosecutor to seek the decision of the court. The request shall be in writing; a copy of the original request and the decision of the medical director shall be appended. ...” 17. A sunset clause was linked to section 14h, providing for an evaluation of the measure as of 1 January 2008, after which it would lapse automatically on 31 December 2008 unless extended by order in council (algemene maatregel van bestuur). The Government having elected not to extend it, it lapsed automatically on 31 December 2008. 18. Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder, in its relevant part, reads as follows: “1. A person may be subject to involuntary placement only if all the following conditions are met: i. the person has a mental disorder; ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii. the placement includes a therapeutic purpose; iv. no less restrictive means of providing appropriate care are available; v. the opinion of the person concerned has been taken into consideration. 2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if: i. his or her behaviour is strongly suggestive of such a disorder; ii. his or her condition appears to represent such a risk; iii. there is no appropriate, less restrictive means of making this determination; and iv. the opinion of the person concerned has been taken into consideration.”
| 0
|
train
|
001-92569
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,009
|
SEVİM GÜNGÖR v. TURKEY
| 4
|
Inadmissible
|
András Sajó;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
“... the patient was in pain and unresponsive, had severe lung and circulatory insufficiency, severe and widespread decubitus ulcers and was in sepsis ... that night, at around 2 a.m., the nurse on duty, Ms Z.Ç., came to my office and informed me that the patient had probably died. I immediately went to the patient’s room. When I entered the room I saw that the patient’s pupils were bilaterally fixed and dilated. [Her] respiration had ceased and her heart monitor showed a flat line. As you know there is no indication to attempt resuscitation on a patient who has suffered multiple organ failure, brain death and cardiac asystole. Therefore there was no attempt to resuscitate the patient. The patient’s relative’s allegations ... are not true. It is against universal ethical considerations to reprimand a near-death patient’s relative. I do not accept the accusations against me.” “... after Dr I.C. performed the first medical interventions I took over responsibility for the patient. I changed the dressings twice a day. Later on I performed, after consulting with Dr I.C., a debridement on the region which was infected. Since the procedure is done on dead tissue it is impossible for the patient to shout out in pain ... I took a sample from the infected wound. ... Dr I.Ç. told me that the micro-organisms on the wound were susceptible to [the drug] imipenem and asked if it would be acceptable to me if they administered it. I told them that if the patient’s clinical condition permitted, they could use it. Contrary to the allegations, I did not give either direct or indirect orders for the administration of imipenem since I was not the doctor primarily responsible for the deceased ...” “The patient was admitted to the intensive care unit on 31 December 1997 .... The patient’s general condition was extremely bad. She was unconscious, dehydrated ... She was fitted with a urine catheter to relieve her bladder ... We consulted with the cardiology department ... The patient had decubitus ulcers covered with necrotic material. We consulted with the plastic-surgery department. Dr R.Ö. examined the patient. A debridement was performed on the ulcers and a sample was taken for examination. The patient was treated with cephalosporin-type antibiotics. In the following days, according to the results of the samples, the wound was susceptible to imipenem. Accordingly, on the recommendation of Dr R.Ö., the treatment with cephalosporin-type antibiotics was stopped and the patient was treated with Tienam500... Nothing was said between the patient’s daughter and me concerning the patient’s allergy to penicillin and beta-lactamase inhibitors. I believe that the patient died because her general health was terrible and she was at the terminal stage, rather than from an allergy.” In her testimony nurse Z.Ç. stated, inter alia, the following: “... I periodically monitored the patient until her death on 15 January 1998. During this time there was no significant improvement in her health. I was on duty the night she died. Dr M.K. was the doctor on duty. At 5 p.m. Dr I.Ç. ordered the infusion of Tienam-500 to the patient. I complied with this order at 10 p.m. I did not see any negative changes in the patient’s general state when I entered the room later on to check on the patient’s blood pressure. At around 3.30 to 4 a.m., I saw [the applicant] leaving the patient’s room and entering Dr M.K.’s room. They both entered the patient’s room. When I tried to enter the room [the applicant] shouted that I had killed the patient with the injection. Dr M.K. tried to calm [the applicant] down. Despite our efforts she did not let us take the deceased out of the room until 5.30 a.m. ... I did not see any negative reaction towards [the applicant] and the patient on the part of Dr M.K. ... I did not see or receive any order from Dr R.Ö. ...” “I called the gastroenterology clinic and they recommended Dr A.G. I called him, told him that the doctor who treated my mother at home had recommended nasogastric intubation and asked him what reference number I needed to buy. He told me that if I brought in my mother they would insert the tube and treat her ... I believe that the patient was administered medicines that she was allergic to during her treatment. My mother was allergic to beta-lactamase and penicillin-type antibiotics. I did not say this before because I was not asked. I was not in the patient’s room during the treatment. A plastic surgeon outside (whose name I cannot remember at the moment – his first name was probably Mehmet) told me that the decubitus ulcers on her back were not infected and that they would heal with bandages. I think that they became infected after the debridement. If they had not given [the] patient antibiotics for the infection, she would not have died within fifteen minutes after the injection. The night my mother died, I told Dr M.K. that my mother was not well. However, he refused to intervene and told me off. Dr E.D. is a witness to this action. When Dr M.K. returned from my mother’s room he told me that my mother had died. The wound had been bandaged by Dr R.Ö.” “I do not want a lawyer. The deceased’s daughter called me and said that her mother was very ill and asked me to help her. ... I told her to urgently bring her mother to the hospital. When the patient arrived on a stretcher, she was unconscious, extremely dehydrated and weak. Her stomach was swollen and she had widespread decubitus ulcers. She was taken into intensive care. The patient was treated with all the necessary treatments available in modern science by our team (gastroenterology, cardiology, neurology and plastic surgery). When the patient arrived, she was near death. Despite our swift and continuous treatment her general condition did not change. Unfortunately, the predestined end prevailed.” “Prof. Dr A.G asked me to see the patient and I saw the patient the very same day. The patient’s general heath was very bad. She had infected wounds in the lower back. The wounds were in a bad condition. I ordered a debridement, which was performed by Dr R.Ö. Afterwards I examined the patient four times. It was the plastic-surgery department which monitored the state of the wounds. It was recommended that the gastroenterology department should administer antibiotics to the patient. We made every effort to cure the patient. We are also sad at the outcome; however, there is no cure for death. The patient had not been taken good care of for weeks (thin, malnutrition, barely conscious).” In his testimony the applicant’s witness, Mr Y.U., stated the following: “The deceased and her daughter are relatives of my wife. I have not seen the deceased for over fifteen years. In any event, I only saw her twice in my life. I learned of her death when her daughter came to visit us in Yalova, a long time after her death. I did not see the deceased during her illness. I do not know what kind of treatment was given to her in the hospital. I have no other knowledge apart from what her daughter told me. She told me that her mother had not been treated well in the hospital and that she had died as a result of the injections administered to her despite her allergy to antibiotics. I didn’t believe the things she said. I have nothing else to say.” The relevant domestic law applicable at the time of the events is as follows. Article 17 of the Constitution provides that everyone has the right to life. The relevant provision of the Criminal Code read as follows: “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.”
| 0
|
train
|
001-4614
|
ENG
|
GBR
|
ADMISSIBILITY
| 1,999
|
McDONNELL v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British national, born in 1972. He is currently serving a prison sentence in the United Kingdom. The applicant is represented before the Court by John Carroll & Company, a firm of solicitors based in Glasgow, Scotland. On 29 December 1997 police officers acting on information searched the applicant’s home pursuant to a warrant issued under the Misuse of Drugs Act 1971 (“the 1971 Act”). The applicant was cautioned by the police at the start of the search and did not exercise his right to silence. The search of the applicant’s home uncovered quantities of cannabis resin and amphetamines as well as cash and a “tick list”. Towards the end of the search a visitor (“R.”) called at the house. The police admitted him and he was found to be in possession of a set of scales. When questioned about the scales, R. replied in the applicant’s presence: “They’re Pele’s”. Pele was the applicant’s nickname. The applicant did not react to R.’s statement. A brownish residue on R.’s scales was later found to contain the active principles of cannabis. The applicant was charged under the 1971 Act with being concerned in the supply of controlled drugs. At the trial both the applicant and R., who was called as a defence witness, denied that the incriminating words were uttered by R. In the applicant’s submission R. had said that the scales were broken. The applicant maintained that the drugs belonged to a third party (“J.”) who called at his house before the police arrived and had left his jacket with him. R. testified that the scales had been left in his car by another third party and that they had nothing to do with the applicant. He told the jury that it was a coincidence that he had turned up at the applicant’s house with the scales and that the only purpose of his visit was to collect the jacket left there by J. The prosecution accepted that the applicant and R. did not know each other. At the close of the trial the judge directed the jury that it was for the prosecution to prove the applicant’s guilt beyond reasonable doubt and summed up the evidence which they had heard during the trial. As to R.’s statement and the applicant’s failure to deny its implications, the trial judge stated: “... You can also have regard to evidence about what was said by another person about the accused in his hearing and that is because he has an opportunity there and then to contradict what is being said about him if he wishes to dispute it, and that is obviously of relevance when you are looking at the evidence of what [R.] may have said about the scales and the police asked him a question about the scales... You might think from that that the scales had been associated with the weighing of cannabis and you might want to relate that to what was found in the house and also the Crown would ask you to take account of what, according to the police, [R.] said about the scales. ... You remember that evidence was that he said ‘They’re Pele’s’ – Pele being the nickname of the accused. That, of course, is denied and it is for you to decide whether you accept the police evidence or whether you disbelieve it or at least you think it is open to doubt, having regard to the evidence given by the [applicant] and [R.] ... Now, you will have to consider that issue, was that said and if so what can you take from it. Is this in some way indicative of some activities to do with weighing quantities of cannabis and does that have some bearing on the question of being concerned in the supplying of the cannabis so you can see it is a matter which might be regarded as being relevant to the central issue here.” By a majority the jury found the applicant guilty of the charges and on 5 March 1997 he was sentenced to four and a half years’ imprisonment. The applicant appealed to the High Court of Justiciary, which heard his appeal on 10 October 1997. Before the High Court the applicant contended that the trial judge should have directed the jury that while the silence of an accused in the face of an accusation of guilt could be taken into account in considering the case against him, in the applicant’s case no such accusation had been made by R. Accordingly the jury should have been directed to disregard the evidence as to his silence in the face of R.’s statement that the scales belonged to “Pele”. In dismissing the appeal, the High Court concluded: “... It seems to us that in considering the question of the case against the accused, there is no good reason to restrict the scope of the principle ... to a case where the accusation is one of the guilt of the accused. Accordingly it is available to cover situations in which a statement is made which if true would be criminative of the accused. There may be cases in which the statement which is made is of a comparatively trivial nature, in which case it will of course be a matter for comment in the trial as to whether any significance can be attached to silence in the face of such a statement. In the circumstances we consider that the appeal is not well founded and it will be refused.”
| 0
|
train
|
001-87150
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,008
|
BRAZHNIKOV v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
The applicant, Mr Vladimir Dmitriyevich Brazhnikov, is a Russian national who was born in 1946 and lives in Rostov-On-Don. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, 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. In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant accident. In March 1995 a medical board found that, as a result of exposure to radioactive emissions, he had a “category 2” disability. The applicant brought proceedings against the Military Service Commission of the Rostov Region (Военный Комиссариат Ростовской области – “the Commission”) seeking to obtain compensation for damage to his health. On 28 January 2000 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant’s claim and obliged the Commission to pay him 368,028.76 Russian roubles (RUB) in respect of arrears for the period from 1 February 1997 to 1 February 2000, and RUB 10,223.02 in respect of monthly compensation for health damage as from 1 February 2000, subject to further indexation. The Commission did not lodge an ordinary appeal against the above judgment, and it became binding and enforceable ten days later. In June 2002 the applicant brought proceedings before the court seeking to have his monthly compensation recalculated to take account of inflation. On 29 July 2002 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant’s claim and obliged the Commission to pay him RUB 327,551.43 in respect of arrears for the period from 1 July 2000 to 1 August 2002, and RUB 27,473.65 in respect of monthly compensation for health damage as from 1 August 2002, subject to further indexation. The judgment was not appealed against and became binding and enforceable on 8 August 2002. On 17 February 2003 the Commission requested the court to reconsider the judgment of 29 July 2002. The request read as follows: “[The applicant] receives [social benefits] in accordance with the Law on social protection of the victims of the Chernobyl nuclear plant accident. The Law on social protection of the victims of the Chernobyl nuclear plant accident obliges the welfare authorities to index-link the sums in question in accordance with the law. In view of the newly discovered circumstances related to indexation of [social benefits] in line with the increase of the minimum cost of living, previously unknown to the Commission, ..., [the Commission] requests the court to quash the judgment of the Oktyabrskiy District Court of 29 July 2002 and reconsider the case due to the discovery of new circumstances.” On 19 February 2003 the Oktyabrskiy District Court of Rostov-on-Don decided to grant the Commission’s request. The court held that when the judgment of 29 July 2002 was pronounced, there was no court practice concerning indexation of sums of compensation for health damage, which had led to an incorrect interpretation of the decision of the Constitutional Court of 19 June 2002. However, in the meantime, on 31 October 2002 the Rostov Regional Court took a decision in another individual case, subsequently upheld on appeal by the Supreme Court of Russia, whereby it determined the mechanism of indexation of social benefits to Chernobyl victims in compliance with the existing legislation. Therefore, in accordance with Articles 392 and 397 of the Code of Civil Procedure, the court quashed the judgment of 29 July 2002 and remitted the case for reconsideration. No appeal lay against this decision. On 19 February 2003, after the fresh examination of the case, the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant’s claim and determined that his monthly compensation should amount to RUB 24,922.66 as from 1 March 2003. On 4 June 2003 the Rostov Regional Court upheld the judgment of 19 February 2003 on appeal. On 20 January 2005 the applicant lodged an application for supervisory review of the judgment of 19 February 2003, as upheld on appeal on 4 June 2003. On 29 December 2005 the Presidium of the Rostov Regional Court granted the applicant’s request, quashed the judgment of 19 February 2003, as upheld on appeal on 4 June 2003, by way of supervisory review and remitted the case for a fresh examination. Until the quashing of the judgment of 19 February 2003 the applicant continued to receive his monthly compensation in the amount established by the judgment of 29 July 2002. As a result of the fresh examination of the case, on 28 August 2006 the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant’s claim and determined that the applicant’s monthly compensation should amount to RUB 33,000 as from 1 September 2006. On 13 November 2006 the Rostov Regional Court quashed the above judgment on appeal and remitted the case for a fresh examination. On 22 December 2006 the Oktyabrskiy District Court of Rostov-on-Don determined that the applicant’s monthly compensation should amount to RUB 54,126.70 as from 1 January 2006. The court also obliged the defendant to pay the applicant RUB 772,454.67 in arrears for the period from 1 January 2002 to 31 December 2005. On 5 March 2007 the Rostov Regional Court upheld the above judgment on appeal. The Code of Civil Procedure of the Russian Federation (“the CCivP”), in force as from 1 February 2003, provides as follows: “1. [Judgments] which have come into force may be re-considered on the basis of newly discovered circumstances. 2. The grounds for reconsideration ... shall be: 1) significant circumstances which were not and could not have been known to the party who applies for reconsideration; ...” “... [An application for reconsideration of a [judgment] due to the discovery of new circumstances] shall be lodged within three months after the discovery of the circumstances.” “The time-limit for lodging an application for reconsideration of a [judgment] due to the discovery of new circumstances shall be calculated from the day of the discovery of such circumstances...” “1. Following the examination of an application for reconsideration of a [judgment] due to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application. 2. The court decision by which an application for reconsideration of a [judgment] due to the discovery of new circumstances is granted shall not be subject to appeal. 3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.”
| 0
|
train
|
001-67056
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,004
|
DÜZGÖREN v. TURKEY
| 4
|
Inadmissible
| null |
The applicant, Koray Düzgören, is a Turkish national, who was born in 1947 and lives in London. He is represented before the Court by Ms Anke Julia Stock of the Kurdish Human Rights Project in London, as well as by Mr Mark Muller, Mr Tim Otty and Ms Jane Gordon, lawyers practising in London. On 1 April 1998 the applicant, who is a journalist, together with N. A., distributed a leaflet concerning the conscientious objector O. M. U., outside the Ankara State Security Court. The applicant also handed the leaflet to the public prosecutor at the Ankara State Security Court along with a petition requesting that he be prosecuted for having committed a crime. The leaflet, entitled “Freedom to think - an initiative against the crime of thought” contained the press release issued by O. M. U on 1 September 1995. The latter had been previously convicted and sentenced on account of this press release. The relevant parts of the leaflet are as follows: Preface and Epilogue: “... For the purpose of defending the free expression of every kind of thought, we who have signed as publishers, convey this 'convicted' text to the people, regardless of its contents and the question whether or not we share its contents, even though some of us do not agree with some lines in it...' The press release of O. M. U: “Good morning, Today's press conference is not organised by the Izmir Association of the Opponents of War. The responsibility for this conference rests exclusively with me. As you know, the case, which was brought before the Ankara Military Court of the Office of the Chief of Staff where I was allegedly accused of committing the crime of 'causing unwillingness of the people to do military service', was concluded on 29 August. ... The army, unable to deal with us through judicial methods, think that they can draw the opponents of war away from the public view. First of all, I am not a deserter; I am a 'conscientious objector'. I neither intend to do military service nor desert. There is no reason to desert, because I defend the principle that people should exercise their right not to do military service without having to go into hiding. As to the papers given by the Recruitment Office...I am going to burn them right now before your eyes... I am not a soldier and I will never be. Of course, I am aware that I will be summoned for military service, but until I am summoned, how many more days that will be, there will be no changes to my life style. They can find me here to take me by force. But I will resist to the end in the barracks, and I am underlining that I will refuse to do military service in any shape or fashion.” On 1 April 1998 the public prosecutor at the Ankara State Security Court took the statement of the applicant. In his statement the applicant reiterated his petition which he had previously submitted to the prosecutor. He stated that by publishing and distributing the above-mentioned leaflet he had committed the same offence of which O. M. U. had been convicted. He contended that he agreed with the contents of the leaflet. He further pointed out that there were judgments of the European Court of Human Rights which referred to conscientious objectors. He claimed that the leaflet was not intended to dissuade people from doing military service or to incite them to desert. He further stated that in the Netherlands conscientious objectors did not do their military service, but were given other jobs. He commented that maybe in the future the same will also be true for Turkey. He concluded that his aim was to obtain the abolition of compulsory military service in Turkey. On 4 June 1998 the military public prosecutor at the General Staff Court in Ankara filed a bill of indictment, accusing the applicant of discouraging people from performing military service. He requested that the applicant be convicted and sentenced under Article 155 of the Criminal Code and Article 58 of the Military Penal Code. On an unspecified date, the criminal proceedings against the applicant commenced before the General Staff Military Court in Ankara. In the proceedings, the applicant reiterated his statement to the public prosecutor at the State Security Court. The applicant submitted that he was a defender of freedom of expression and challenged the independence and impartiality of the court. On 9 March 1999 the court convicted the applicant as charged and sentenced him to two months' imprisonment and to a fine of 1,520,000 Turkish Liras (3.5 Euros). In its reasoning, the court contended that it had competence to deal with the case pursuant to the Constitution and domestic law provisions. It also pointed out that there was no ruling of the European Court of Human Rights which concluded that military courts were extraordinary courts. As to the merits of the case, the court considered that by distributing the leaflet containing the press release which led to O. M. U's conviction and by presenting the leaflet to the public prosecutor's office at the Istanbul State Security Court and asking the latter to take legal action, the applicant's actions were deliberate and that he had committed the offence knowingly and willingly. The court, relying on Articles 25 and 26 of the Constitution, Article 10 § 2 of the European Convention on Human Rights and Article 29 § 2 of the Universal Declaration of Human Rights, affirmed that freedom of expression and dissemination of ideas was not absolute. Citing relevant articles of the Criminal Code, the court reasoned that the provisions under which the applicant was charged pursued the aim of eliminating threats to the unity of the country, national security and sovereignty. The court observed that Article 155 of the Criminal Code was in accordance with international law and that the applicant's case fell within the scope of Article 155 of the Criminal Code. On 19 April 1999 the applicant appealed to the Military Court of Cassation. In his appeal, the applicant, relying on Articles 6 and 10 of the European Convention on Human Rights, contended that he should not have been tried by a military court and that the act which he had committed could not be considered an offence. On 25 May 1999 the Military Court of Cassation upheld the decision of the General Staff Military Court. In respect of the applicant's submission that he should not have been tried by a military court, the Military Court of Cassation, referring to domestic law and to the jurisprudence of the European Court of Human Rights, ruled that the military courts had jurisdiction and competence to try the applicant. As to the merits, the court, after having assessed the contents of the leaflet, concluded that the judgment given by the General Staff Military Court was in accordance with the law. On 17 July 1999 the applicant left Turkey in order to avoid imprisonment. He claims that he lost his job at a television station, Channel 8, because of pressure from the army. The applicant continues to write as a columnist for a Turkish newspaper. He submits that his earnings as a columnist are significantly less than what he had earned previously with Channel 8. The applicant received compensation from Channel 8 and did not bring any civil proceedings in respect of his loss of employment. The applicant alleges that due to his conviction he cannot return to Turkey without risking imprisonment and that his family relations have suffered as a result. “Whoever, in circumstances other than those indicated in the foregoing Articles, publishes editorials to incite people to violate the laws of Turkey or endangers the security of the country, or issues publications or makes suggestions in order to dissuade persons from performing military service or gives speeches to this effect at public meetings or in places where people have gathered, shall be liable to imprisonment for a period of two months up to two years and to a heavy fine of 4,500 to 36,000 liras.” “Whoever commits the offences described in Articles 153 to 161 or the offence described in Article 155 of the Criminal Code dissuading persons from performing military service by issuing publications or making suggestions or giving speeches to that effect shall be liable to be punished in accordance with the aforementioned Articles for the crime of threatening national security.”
| 0
|
train
|
001-107699
|
ENG
|
UKR
|
CHAMBER
| 2,011
|
CASE OF BAZALT IMPEKS, TOV v. UKRAINE
| 4
|
Violation of Art. 6-1
|
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
|
4. The applicant company, Bazalt Impeks limited liability company, is a Ukrainian legal entity registered in Svitlovodsk. 5. In June 2006 an IT company lodged a claim with the Kirovograd Regional Commercial Court against the applicant company seeking the cancellation of a contract and return of property. 6. By a decision of 26 July 2006, the court found against the applicant company. On 2 October 2006 the Dnipropetrovs’k Regional Commercial Court of Appeal dismissed the applicant company’s appeal and upheld the decision of the first-instance court. 7. By a decision of 12 December 2006, the Higher Commercial Court, upon the applicant company’s appeal, quashed the decisions of the lower courts and found in favour of the applicant company. 8. On 20 February 2007 the Supreme Court of Ukraine, upon the IT company’s cassation appeal, quashed the ruling of the Higher Commercial Court on the ground that its findings had been unfounded and erroneous, and upheld the decision of the Dnipropetrovs’k Regional Commercial Court of Appeal. In taking this decision, the Supreme Court noted: “The Supreme Court of Ukraine, with regard to the provisions of Articles 6 and 8 of the Constitution of Ukraine, does not consider it necessary to remit the case for fresh examination to the first-instance court. This would be contrary to the provisions of Article 125 of the Constitution of Ukraine and sections 2 and 39 of the Law of Ukraine “On the Judicial System of Ukraine” [the Judiciary Act] regarding the status of the Supreme Court of Ukraine and its task to ensure the administration of justice in accordance with the law. It would further cause a constitutionally unacceptable need to quash the lawful decision of the court of appeal. In this regard, the list of possible outcomes of cassation appeals against decisions of the Higher Commercial Court of Ukraine envisaged in Article 111-18 of the Code of Commercial Procedure of Ukraine is not considered a legal impediment to adopting the decision.” 9. On 5 March 2007 the decision of the Supreme Court was sent to the applicant company. 10. The relevant extract of the Constitution of Ukraine reads as follows: “State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power. Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.” “In Ukraine, the principle of the rule of law is recognised and effective. The Constitution of Ukraine has the highest legal force. Laws and other normative legal acts are adopted on the basis of the Constitution of Ukraine and shall conform to it. The norms of the Constitution of Ukraine are norms of direct effect. Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of the Constitution of Ukraine are guaranteed.” “In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction ...” “... The main principles of judicial proceedings are: 1) legality...” 11. The relevant provisions of the Act (in its wording of 1 January 2007) read as follows: “The court, exercising justice based on the rule of law shall ensure the protection of the rights and freedoms of natural persons, the rights and legitimate interests of legal persons, and the interests of society and of the State as guaranteed by the Constitution of Ukraine and by the law.” “1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction ... 2. The Supreme Court of Ukraine shall: 1) review ... the cases under the cassation procedure in the situations established by law... 7) exercise other powers pursuant to the law.” Section 39 of the Act dealt with the competences of the Higher Specialised Courts. 12. The Code of Commercial Procedure (formerly: Arbitration Procedure) was significantly reworded on 21 June 2001. At that time, a fourth level of jurisdiction was introduced into commercial procedure. According to the relevant provisions of the Code, a cassation appeal to the Higher Commercial Court, similar to that found in other member States of the Council of Europe, and a second (or repeated) cassation appeal to the Supreme Court was available to the parties in a commercial case. Commercial procedure was the only judicial procedure of Ukraine where a fourth level of jurisdiction existed and where the Supreme Court acted as a second-instance court of cassation (in criminal and civil proceedings it acted as an ordinary court of cassation and in administrative and administrative offences proceedings it performed only extraordinary review). The relevant legislation was changed in July 2010 and the competence of the Supreme Court in commercial cases was limited to the review of a case in the event of inconsistencies in judicial practice or in the event that a decision is adopted by an international tribunal. The relevant provisions of the Code of Commercial Procedure (in its wording of 15 May 2003) read as follows: “A commercial court shall nullify proceedings in the case, if 1) a dispute is not subject to examination in the commercial courts of Ukraine; ...” “The parties to a case and the Prosecutor General of Ukraine have the right to appeal in cassation to the Supreme Court of Ukraine against a resolution of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first-instance commercial court that has entered into force, or a resolution of the Commercial Court of Appeal [as well as the ruling of the Higher Commercial Court of Ukraine on return of the appeal (request for review) in cassation].” “The Supreme Court of Ukraine reviews in cassation the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are appealed against: 1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine; 2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law; 3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in similar cases; [3-1) due to the inconsistency of the resolutions or rulings with the international treaties of Ukraine agreed as binding by the Verkhovna Rada of Ukraine;] 4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution [or ruling] has violated the international obligations of Ukraine.” “... The resolution [or ruling] of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for “The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, shall be entitled to: 1) leave the resolution [or ruling] unchanged and dismiss the appeal (request); 2) quash the resolution and remit the case to the first-instance court for further consideration [or quash the ruling and remit the case for further consideration to the Higher Commercial Court]; 3) quash the resolution [or ruling] and nullify the proceedings in the case.” “The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.” “... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.” “Instructions, contained in the resolution of the Supreme Court of Ukraine, shall be binding for the first-instance court during a new consideration of the case [and for the Higher Commercial Court of Ukraine during consideration of the materials of the appeal in cassation or the request for review in cassation]. The resolution of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include instructions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive [or procedural] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.” 13. Section 13 of the Act provides for general measures to be taken by the domestic authorities to eliminate underlying problems which led to finding of a violation by the Court and reasons for similar applications in the future. 14. Section 17 foresees the application of the Convention and the case-law of the Court as a source of law by the Ukrainian courts in adjudication of cases before them.
| 1
|
train
|
001-101471
|
ENG
|
ROU
|
CHAMBER
| 2,010
|
CASE OF RABAN v. ROMANIA
| 3
|
No violation of Art. 8
|
Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
|
5. The first applicant, Mr David Raban, is an Israeli and Dutch citizen, who was born in 1957 and lives in Yehud, Israel. The second and third applicants are his children, Ela Raban, born in 2003, and Ilan Matzliah Raban, born in 2004. They currently live in Romania with A.R., their mother. 6. The first applicant and A.R. got married in 2002 in Cyprus. The two had already lived together as a couple in Israel for six months before the wedding. In 2003 and 2004 respectively, their two children, Ela and Ilan Matzliah, were born in Israel. Their last place of residence in Israel was Bat Hefer. 7. In 2006, as explained by the applicant, the couple, who had joint custody of the children, agreed that the mother and the two children would visit the mother's family in Romania for six months. On 27 April 2006, the mother and the children left for Romania; according to their roundtrip airline tickets, they were scheduled to be back on 24 October 2006. However, they never returned to Israel; on 3 November 2006, A.R.'s mother informed the first applicant that A.R. and the children would remain in Romania. 8. Subsequently, the first applicant filed for the return of his children, under the Hague Convention (proceedings described under no. 1 below), while A.R. filed for divorce and custody of the children with the Romanian courts (proceedings described under no. 2 below). 9. On 8 November 2006 the first applicant filed a request for the return of his children under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Israeli Ministry of Justice to the Romanian Ministry of Justice (“the Ministry”). The first applicant claimed that his wife was wrongfully retaining their children in Romania, without his consent. On 14 February 2007 the Ministry, acting as the Central Authority for the purpose of the Hague Convention, instituted proceedings on behalf of the first applicant before the Bucharest District Court of the Fourth Precinct. 10. On the basis of the evidence adduced in the case, which included a “psychological evaluation of the children”, the District Court found on 11 October 2007 that the retention of the children in Romania was illegal under Article 3 of the Hague Convention, as at the time of the retention the father had lawful custody rights. It also held that the allegations of A.R. according to which the first applicant had agreed that the children should remain in Romania as his financial situation in Israel was precarious, confirmed by the witness M.-A. T., who stated that neither the applicant, nor A.R. had a job in Israel, were however unsubstantiated, as the first applicant had proved that he had made attempts to rent a house for the family, had enrolled the children in a local kindergarten and was regularly in contact with the children by phone. The defence raised by A.R. under Article 13 § 1 b) of the Hague Convention was also dismissed by the court; it considered that the “state of insecurity” invoked and the “general threat of terrorist attacks” arising in Israel had not proved to be an obstacle to the family living in Israel for more than five years prior to the children's removal, and could not be regarded as having developed to a dangerous degree at that time. The court ordered that the children be returned to their habitual residence in Israel no later than three weeks after the judgment became final. 11. A.R. filed an appeal against this decision, which was allowed by the Bucharest Court of Appeal in a final judgment of 7 January 2008. Out of the panel of three judges, Judge M.H. gave a dissenting opinion, favouring the reasoning of the first-instance court. The majority's decision was based on two conclusions: firstly, that Article 3 of the Hague Convention was not applicable to the case, in so far as the children, Romanian citizens, had left Israel and remained in Romania upon the agreement of the parents; secondly, that in any event, the exception provided for by Article 13 1 b) of the Convention was substantiated, as it had been proved that, if returned to Israel, the children would risk exposure to physical or psychological harm. 12. The appellate court thus found that the children had left Israel and remained in Romania with the consent of their father, due to the worsening of his financial situation. The agreement between the parents was for the children to stay in Romania until the first applicant's financial situation improved –in that respect, even the fact that they had bought roundtrip tickets, which were cheaper than one-way tickets, only underlined the financial difficulties the family was undergoing; however, as time passed, the evidence showed that this situation had kept worsening, since the first applicant had sold the house where they had lived as a family, after the departure of A.R. with the children, and gone to live with his mother. Also, the first applicant had not produced any evidence to support his claim that he had sent money to his children. The court further held that the first applicant had not proved that he had maintained contact with his children; in the file there was only evidence of one visit paid by the first applicant to his children, on 3 October 2007; the phone calls allegedly made by the first applicant to his children in Romania had been made from the house of the first applicant's mother, which was interpreted as meaning that the conversations had been between the children and their paternal grandmother. Hence, the agreement between the spouses regarding the children remaining in Romania proved to be real and such an agreement could by no means be regarded as breaching Article 3 of the Hague Convention. 13. Moreover, the evidence in the file showed that the two children had integrated into the Romanian community successfully – they had good results at kindergarten and positive psychological evaluations – arguments which supported a dismissal of the first applicant's action. The court also held that “the evaluation of the children carried out by the General Department for Social Assistance and Child Protection in the presence of a counsellor revealed that no assessment could be made of the possible effects of the separation of the father from his children, insofar as there was insufficient information with regard to the father-children relationship”. 14. The defence under Article 13 § 1 b) of the Hague Convention, namely, that there was a grave risk of exposing the children to intolerable physical harm if returned to Israel, was also allowed. The court based their reasoning, inter alia, on “the reports produced by Amnesty International”, which stated according to the court, that Bat Hefer was located in a conflict area, where citizens feared for their safety. At the same time, the court based its reasoning on travel advice issued in January 2008 by the US State Department, in which warnings were allegedly made about “potential conflicts which could arise between the Israelis and the Palestinians”, and “signs of possible terrorist attacks in the area” were referred to. In a dissenting opinion to the judgment, Judge H.M. underlined that the above-mentioned documents “did not actually refer specifically to Bat Hefer, but to other regions of Israel”. 15. The applicant was never given a copy of the above-mentioned reports. In a certificate issued by the Ministry of Justice on 29 May 2008 to the applicant it was mentioned that neither the Amnesty International reports, nor the US State Department release were to be found in the domestic case file. 16. On 6 March 2007, A.R. filed for divorce, custody of the children and maintenance before the Bucharest District Court of the Fourth Precinct. 17. On 24 September 2008 the first applicant (defendant), represented by an appointed lawyer, presented his observations in reply to A.R.'s claims. He contended that the Romanian courts did not have general jurisdiction in such proceedings, in so far as the marriage was registered in Cyprus, the defendant was an Israeli and Dutch citizen, the couple's children were Israeli citizens, and the last marital home had been in Israel. He also lodged counterclaims asking the courts to either grant him full custody of the two children, or to order their return to their habitual residence in Israel. 18. On 18 November 2008, the court rejected the first applicant's plea regarding the lack of jurisdiction, considering that “the Romanian courts did have full jurisdiction in such cases, pursuant to Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility”. 19. In its judgment of 19 December 2008, the district court granted A.R a divorce on the grounds of exclusive fault by the first applicant. Based on the conclusions of a social enquiry report on the children's concrete situation, which held that they were well taken care of and benefited from a good standard of living, and taking into consideration their ages (5 and 4, at that time), the court awarded custody of the children to the mother. The court found that it was in their best interest to remain with their mother, her care and presence being a psychological factor which was absolutely essential for their intellectual, moral and physical development. In the absence of any proof regarding the first applicant's employment and/or income, the court referred to the national minimum wage scale and ordered him to pay monthly maintenance in the amount of 90 RON in respect of each child, starting on 6 March 2007 and until they reached the age of majority. Neither the first applicant, nor A.R. have lodged any appeals against this judgment, which thus became final and enforceable. 20. The relevant legal provisions of the Hague Convention on the Civil Aspects of International Child Abduction are to be found in Iosub Caras v. Romania, no. 7198/04, 27 July 2006 and Deak v. Romania and the United Kingdom, no. 19055/05, § 58, 3 June 2008. The Hague Convention was ratified by Romania by Law no. 100 of 16 September 1992.
| 0
|
train
|
001-68291
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,005
|
F.A. v. TURKEY
| 4
|
Inadmissible
| null |
The applicant, who was born in 1971, is a Turkish national and lives in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 and 24 June 1996 the HADEP (Halkın Demokrasi Partisi – People's Democracy Party) held its annual congress in Ankara. The applicant participated in the congress as a delegate from Diyarbakır. During the congress, he was elected secretary of the board. While some of the delegates were reading their reports, a group of masked persons entered the congress building and chanted slogans in support of the PKK. They subsequently pulled down the Turkish flag and hung up a PKK banner and posters of Abdullah Öcalan. On 24 June 1996, on the instructions of the Ankara State Security Court Chief Public Prosecutor, police officers surrounded the congress building. When the congress was over, the police arrested the applicant as he was leaving the building. The police also arrested the executive board members of HADEP, the chairman and deputy chairman of the congress, as well as those involved in the pro-PKK actions. The applicant was taken to the anti-terror branch of the Ankara Security Directorate, where he was allegedly kept in a cell with four other persons and subjected to verbal abuse. On 4 July 1996 the applicant was brought before the Ankara State Security Court and subsequently placed in detention on remand. On 23 August 1996 the public prosecutor at the Ankara State Security Court filed an indictment with the court. He accused the applicant of being a member of an illegal organisation, namely the PKK. He referred to the events that had taken place during the HADEP congress. The prosecutor considered that as the applicant had been acting as secretary of the board during the congress, he could have stopped the masked persons from pulling down the Turkish flag and from displaying the PKK banner and posters of Abdullah Öcalan. The prosecutor called for the applicant to be sentenced pursuant to Article 168 § 2 of the Criminal Code for aiding and abetting a terrorist organisation. On 23 October 1996 the applicant was released pending trial. During the trial, the applicant maintained that he was not a member of the group which had pulled down the Turkish flag. He denied any responsibility for the impugned acts and requested to be acquitted. On 4 June 1997 the Ankara State Security Court delivered its decision. In the first place, the court found it necessary to distinguish the case from a simple case of insult to the Turkish flag. It took into consideration the statement of one of the accused persons who had pulled down the flag during the congress. In his statement, this accused person had explained that he had been acting on the instructions of HADEP officials. He stated that several university students had been brought to Ankara by bus to participate in the congress and had been instructed to shout slogans in support of the PKK and to hang posters of Öcalan and PKK banners on the walls. The court further noted that this was the first time that such a big Turkish flag had been hung in a congress building. According to the court, this act was planned by the HADEP officials in order to provoke a reaction. The court further examined video footage taken during the congress and concluded that the applicant, who was acting as secretary of the board during the congress, could have stopped the masked individuals from carrying out their acts. The court stated, inter alia, “...All the accused persons are competent and responsible persons in the HADEP. They had therefore the possibility of interrupting or even suspending the congress. By doing so, they could have helped the police force to capture the PKK militants who had taken down the Turkish flag and put up posters of Abdullah Öcalan instead... On the contrary the accused persons hid the PKK militants by forming groups and they assisted them in performing their activities...” In delivering its decision, the State Security Court further referred to sections 2 and 3 of the United Kingdom Prevention of Terrorism Act 1989, which concerned the membership of, support for and meetings of proscribed organisations and display of support to such organisations in public. The State Security Court convicted the applicant of aiding and abetting the members of a proscribed organisation and sentenced him to four years and six months' imprisonment pursuant to Article 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991). The applicant appealed. The Court of Cassation quashed the judgment of the Ankara State Security Court on the ground that the case file lacked relevant information and documents. The case was sent back to the Ankara State Security Court. While the proceedings were pending before the Ankara State Security Court, on 21 December 2000 new legislation (Law No. 4616), which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. The court accordingly suspended the proceedings against the applicant. According to Law No. 4616, these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within five years of the court's decision to suspend the proceedings. Pursuant to Article 4 of Law No. 4758, it was open to the applicant to request the Ankara State Security Court to continue the proceedings against him. However, he did not make such a request.
| 0
|
train
|
001-87882
|
ENG
|
CZE
|
CHAMBER
| 2,008
|
CASE OF DRUŽSTEVNÍ ZÁLOŽNA PRIA AND OTHERS v. THE CZECH REPUBLIC
| 3
|
Violation of P1-1;Violation of Art. 6-1;Reminder inadmissible;Damage - reserved
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
6. On 11 January 2000 the Office for the Supervision of Credit Unions (Úřad pro dohled nad družstevními záložnami) (“the OSCU”) placed the applicant credit union in receivership (nucená správa) for a period of six months under section 28(3)(c) of the Act, on the ground that it had contravened the legislation in question, having engaged in activities outside its remit without authorisation. A receiver (nucený správce) was appointed to replace the applicant credit union’s decision-making bodies. The OSCU was acting under section 27(1) of the Act read in conjunction with section 26(2) of the Banks Act (zákon o bankách). 7. Referring to an audit of the applicant credit union’s activities, the OSCU noted that the applicant credit union had on 6 May 1999 concluded three contracts with S7, a limited liability company, under the terms of which the latter had assigned to the applicant credit union receivables due to it from two debtor companies, amounting to CZK 126,235,132 (EUR 3,366,582) in total, for an agreed price of CZK 14,431,000 (EUR 384,862). The OSCU ruled that the applicant credit union had thereby purchased the receivables of a third party by effectively covering the latter’s debt. It qualified the transaction as a loan to a third party. Since section 3 of the Act prohibited credit unions from providing loans to non-members, the OSCU concluded that the applicant credit union had acted in flagrant breach of the Act. 8. The OSCU further noted that the auditors had discovered that the applicant credit union had entered into a contract on 2 and 5 August 1999 to grant a loan of CZK 22,000,000 (EUR 586,721) to a limited liability company, MLM Brno, and had signed two contracts on 25 June 1999 with OPES, a joint stock company, for the purchase of securities (cenné papíry) at a total price of CZK 41,200,056 (EUR 1,098,770). The OSCU ruled that these transactions were also illegal, as section 1(6) read in conjunction with section 3 of the Act did not allow credit unions to acquire securities other than public bonds (dluhopisy), municipal bonds (komunální obligace) or mortgage bonds (hypoteční zástavní listy). 9. The receivership became effective on 12 January 2000, when the applicant credit union was notified of the OSCU’s decision. 10. On 26 March 2000 the applicant credit union lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the receivership order and applied at the same time for an order striking down certain provisions of the Act. It relied, inter alia, on section 75(2)(a) of the Constitutional Court Act, which enables the Constitutional Court to hear a constitutional appeal even if domestic remedies have not been exhausted, if it substantially affects the appellant’s personal interests. 11. On 7 April 2000, following an administrative appeal by the applicant credit union, the Ministry of Finance upheld the receivership order of 11 January 2000. 12. On the same date a petition to adjudge the applicant credit union bankrupt (konkusní řízení) was filed with the Brno Regional Court (krajský soud). During 2001 a large number of creditors joined the proceedings. 13. On an unspecified date the applicant credit union applied for judicial review (správní žaloba) of the imposition of receivership under Article 247 et seq. of the Code of Civil Procedure, asserting that the statutory conditions for such a step on the part of the OSCU had not been met. 14. On 1 May 2000 Act no. 100/2000 entered into force, extensively amending the Act (hereinafter “the amended Act”). The powers of supervisory boards of credit unions were confined to the right to appeal decisions adopted by the OSCU. 15. On 21 June 2000 the OSCU granted the receiver permission to suspend withdrawals from deposit accounts held with the applicant credit union in view of its precarious financial situation. According to its findings, the sum owed by the applicant credit union on outstanding term deposits amounted to at least CZK 83,000,000 (EUR 2,213,539), while the cash available in its current accounts was only CZK 21,500,000 (EUR 573,386). 16. On 12 July 2000 the OSCU renewed the receivership order under the amended Act as the previously identified deficiencies remained. It referred, inter alia, to the first receivership order and to three decisions by which it had prohibited or restricted the applicant credit union’s activities, including withdrawals from deposit accounts (decision nos. 322/2000/II of 20 January 2000, 1217/2000/II of 9 March 2000 and 2407/2000/II of 25 April 2000). 17. On 9 November 2000 the Ministry of Finance upheld that decision. 18. On 12 December 2000 the Constitutional Court dismissed the applicant credit union’s constitutional appeal for non-exhaustion of ordinary remedies under section 75(1) of the Constitutional Court Act. It reiterated that the principle requiring the exhaustion of ordinary remedies could be derogated from in exceptional circumstances if the effective protection of constitutionally guaranteed fundamental rights and freedoms was endangered. It found that, contrary to section 72(1) of the Constitutional Court Act, which provides, inter alia, that “a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty by a valid decision taken in proceedings to which he was a party”, the applicant credit union had lodged its constitutional appeal before the receivership order had become effective. 19. On 15 January 2001 the applicant credit union, represented by the president of its supervisory board, applied for judicial review, challenging the Ministry of Finance’s decision of 9 November 2000. 20. On 10 and 25 January, 2 February, 4 April and 3 May 2001 respectively (decisions nos. 114/2001, 369/2001, 838/2001, 1645/2001 and 2134/2001), the OSCU allowed the receiver to suspend withdrawals from deposit accounts held with the applicant credit union. 21. According to the Government, on 6 June 2001 the OSCU granted the receiver permission to file on its own a petition with a court to adjudge the credit union bankrupt, which he did on 18 June 2001. 22. On 9 July 2001 the Regional Court appointed an interim trustee (předběžný správce). 23. On 12 July 2001 the OSCU again placed the applicant credit union in receivership. It based its decision on the applicant credit union’s report of 3 July 2001 which included a statement of its outstanding debts and available funds. It was noted in the report that the applicant credit union was insolvent, as it had only CZK 59,257,000 (EUR 1,580,333) at its disposal, which was insufficient to enable it to honour its outstanding debts of at least CZK 218,000,000 (EUR 5,813,872). Moreover, because of its lack of liquid assets the applicant credit union had omitted to pay an annual contribution to the OSCU that had fallen due on 30 April 2001. The OSCU further noted that the applicant credit union’s financial statements as of 31 December 2000 disclosed negative equity to the tune of CZK 222,949,000 (EUR 5,945,858). 24. On 4 October 2001 the Ministry of Finance upheld the third receivership order. 25. On 21 March 2002 the applicant credit union, represented by the president of its supervisory board, filed an application for judicial review of the Ministry’s decision. 26. On 17 April 2002 the applicant credit union filed a claim for damages with the Ministry of Finance under the State Liability Act (Act no. 82/1998). 27. On 19 April 2002 the OSCU withdrew the applicant credit union’s licence (povolení působit jako družstevní a úvěrní záložna). It found irregularities in the way the applicant credit union had conducted its affairs, as attested by its inability to meet its liabilities, and considered that no improvement could be expected. It observed that by 15 March 2002, the applicant credit union had recorded overdue liabilities totalling at least CZK 200,000,000 (EUR 5,333,828), while having at its disposal only CZK 56,006,000 (EUR 1,493,632). The cumulative value of the ratios reflecting the balance between assets and liabilities was just under 28%, whereas section 7(1) of Ministry of Finance Decree no. 387/2001 on the liquidity and solvency requirements for credit unions required a cumulative value from 31 December 2001 onwards of at least 45%. 28. The OSCU found that as of 15 March 2002 the applicant credit union had disclosed a negative capital value of CZK 243,705,000 (EUR 6,499,403), whereas under section 10(1) of Ministry of Finance Decree no. 386/2001 on the capital adequacy requirements for credit unions, cooperative savings associations were obliged to have achieved by 31 December 2001, and to maintain thereafter, a capital adequacy of at least 0.1%. The OSCU further stated that on 17 April 2002 the applicant credit union had submitted a report on its financial management results which showed that the irregularities in the applicant credit union’s affairs, including its failure to comply with the capital adequacy, liquidity and solvency requirements, were so serious that there was no reasonable prospect of their being remedied. 29. By a letter of 22 May 2002 the Ministry of Finance dismissed the applicant credit union’s claim for damages. On 28 May 2002 the applicant credit union, through its legal representative empowered by the presidents of the board of directors and the supervisory board, brought an action for damages against the Ministry of Finance. 30. In a judgment of 21 June 2002 the Prague High Court (Vrchní soud) dismissed the applicant credit union’s first request for judicial review as being unsubstantiated, finding that the applicant credit union had been placed in receivership in accordance with the national legislation then in force and that the OSCU had not decided outside its discretionary power (volné uvážení). The court held, inter alia, that: “Placing a credit union in receivership is one of the measures which the [OSCU] may apply in addition to or instead of other sanctions specified in section 28(2) of [the Act]. ... Admittedly, the [OSCU] chose the strictest measure. However, [it] did not breach the [Act] and did not proceed contrary to the [Act’s] aims, which are the only grounds on which [the OSCU’s] decision may be quashed (Article 245(2) of the Code of Civil Procedure)... If the [OSCU] found ... that the amount of available assets reserved for direct payments to members of [the applicant credit union] within three months had decreased to 6.77% of deposits (the Act lays down a minimum of 15%) ... as a consequence of ... a number of ... financial transactions entered into by the [applicant credit union], and if the [OSCU] discovered other breaches of the [Act] and the applicant credit union’s articles of association, then there is no ground for this court to find that the OSCU, when imposing the receivership, decided outside its discretionary powers.” 31. On 3 July 2002 the OSCU appointed its liquidator (likvidátor). On 31 October 2002, following an appeal by the applicant credit union, the Ministry of Finance upheld the appointment. 32. In the meantime, on 12 September 2002, the applicant credit union had lodged a constitutional appeal against the High Court’s judgment, alleging a violation of Article 11 § 4 and Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), as well as Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1. 33. On 5 December 2002 the High Court upheld the Regional Court’s decision of 9 July 2001 concerning the appointment of the interim receiver. 34. On 30 January 2003 the Constitutional Court rejected the constitutional appeal of 12 September 2002 as manifestly unfounded. 35. On 10 April 2003 two shareholders of the applicant credit union joined the proceedings concerning its action for damages. 36. On 23 April 2003 the Prague 1 District Court (obvodní soud) dismissed the applicant credit union’s action for damages on the ground that it had been lodged by an unauthorised person. It stated, inter alia, that members of the board of directors and of the supervisory board were not entitled to bring the action on behalf of the applicant credit union. At the same time, the court severed the two shareholders’ claims, ruling that they should be heard separately. 37. On 20 May 2003 the applicant credit union appealed. However, on 5 September 2003 the District Court discontinued the proceedings, stating in particular: “Section 28(d)(1) of [the Act] grants the supervisory board of a credit union the right to challenge the conduct of receivership, but an action for damages sustained as a result of the receivership cannot be equated with the right of the supervisory board to appeal against decisions of [the OSCU] under section 28(d)(1) of [the Act].” 38. On 9 February 2004 the Supreme Administrative Court (Nejvyšší správní soud) rejected the second application for judicial review, lodged by the applicant credit union on 15 January 2001 against the Ministry of Finance’s decision of 9 November 2000 upholding the second receivership order. The court, referring to section 28(d) of the amended Act, found that the application had been lodged by an unauthorised person, as only the receiver had authority to lodge such an appeal. 39. On 23 April 2004 the applicant credit union lodged a constitutional appeal against the decision of the Supreme Administrative Court. 40. On 26 April 2004 the Prague Municipal Court (městský soud) upheld the District Court’s decision of 5 September 2003. 41. On 28 April 2004 the Regional Court, on a petition filed by 217 creditors, shareholders of the applicant credit union, declared the applicant credit union to be insolvent. A trustee (správce konkurzní podstaty) was appointed, accordingly. 42. On 13 October 2004 a creditors’ meeting (schůze věřitelů) was held, at which the creditors’ committee (věřitelský výbor) was elected. On 8 December 2004, 7 November 2005 and 18 January 2006 respectively, three review meetings took place. 43. In the meantime, on 7 March 2005, the Constitutional Court had dismissed the applicant credit union’s latest constitutional appeal. 44. On 8 March 2006 the Regional Court received a list of the applicant credit union’s assets. The realisation of the assets included in the list is, according to the Government, under way. In connection with this insolvency dispute, the Regional Court has registered 35 judicial disputes. 45. It would appear that the third application for judicial review filed by the applicant credit union is still pending before the Supreme Court. According to the Commercial Register as it stands, the applicant credit union is still the subject of insolvency proceedings. 46. Article 11 § 4 provides that expropriation or other forcible limitation of ownership rights is possible only in the public interest and on the basis of law, and against compensation. 47. Under Article 36 § 1 anyone may assert his or her rights under a set procedure before an independent and impartial tribunal, and in specified cases before another organ. Under paragraph 2, anybody who claims that his or her rights have been violated by a decision of a public administrative organ may apply to a court for a review of the legality of that decision, unless the law provides otherwise. However, the review of decisions affecting the fundamental rights and freedoms listed in the Charter may not be excluded from the jurisdiction of the courts. Paragraph 3 provides that everybody is entitled to compensation for damage caused to him or her by an unlawful decision of a court, another organ of the State or the public authorities, or by maladministration. Under paragraph 4, the conditions and detailed provisions in this respect are determined by statute. 48. Under Article 38 § 1 nobody may be denied access to his lawful judge. The jurisdiction of the court and the competence of the judge are determined by statute. Paragraph 2 provides that everybody is entitled to have his or her case considered in public without unnecessary delay and in his or her presence, and to comment on all submitted evidence. The public may be excluded only in cases specified by law. 49. Section 1 provided that a credit union is a legal entity governed by the provisions of the Commercial Code on cooperatives unless the Act provides otherwise. 50. Section 3 stipulated, inter alia, that credit unions may provide loans to and receive deposits from their members, other credit unions and banks. 51. Section 24(1) and (2) provided that the head of the OSCU is appointed and removed from office by the Minister of Finance and that he is empowered, subject to the Minister’s approval, to decide on the status, remit and policy of the OSCU. 52. Under section 27(1) the OSCU must have exercised its powers with due diligence and efficiently while respecting the interests of credit union shareholders. 53. In accordance with section 28(2) the OSCU may have imposed sanctions for any breach of the Act or other statute by a credit union or its organs or members. 54. Under section 28(3)(c) the OSCU was empowered, inter alia, to impose receivership for a period of six months instead of or together with the sanctions provided for in the preceding subsection. 55. In accordance with section 28(3) the OSCU may have issued repeated receivership orders. 56. Under section 28(6) receivership was governed by the Banks Act, which applies mutatis mutandis. 57. Section 28(10) provided that a decision on receivership may have been appealed before the Ministry of Finance within 15 days of its service. 58. Section 28(11) stipulated that proceedings before the OSCU are governed by the Code of Administrative Procedure unless the Act provides otherwise. 59. The newly inserted section 28(d)(1) provides that the powers of all the organs of a credit union, with the exception of its supervisory board, are suspended on service of a receivership order and are assumed by the appointed receiver. The supervisory board is entitled to appeal the OSCU’s decisions. 60. Section 28c(1) provides that a receiver is appointed, removed and employed by the OSCU, which decides on his or her remuneration. 61. Section 26(2) provided that a bank may be placed in receivership by the Czech National Bank without any prior notice or invitation to remedy deficiencies identified in its business. 62. Section 26(3) stipulated, inter alia, that business transactions to the detriment of a bank’s clients or transactions which constitute a risk to the stability and security of the banking sector of the financial market; infringements of the Banks Act or other statutes or secondary legislation adopted by the Czech National Bank; and a situation where the total volume of reserves and provisions set aside by the bank is not sufficient to cover the risks arising from the volume of classified assets recorded by it, are considered to be deficiencies within the meaning of the Act. 63. Under section 26(4) proceedings on receivership were governed by the administrative procedure legislation unless the Banks Act provides otherwise. 64. According to section 30 the Czech National Bank may have imposed receivership where deficiencies in a bank’s activities endangered the stability of the banking system and the shareholders had not taken the necessary steps to eliminate them. 65. Article 245(2) provided that a court, while reviewing a decision adopted by an administrative authority within its discretionary power granted by a statute, may have examined only whether such a decision had been taken in conformity with rules laid down by a statute. 66. Article 247 et seq. entitled individuals or legal entities claiming that their rights had been curtailed by a decision of an administrative authority to apply for judicial review to determine the legality of that decision. 67. Under Article 250i § 1 the court, when reviewing the legality of the decision, must have relied on the facts as they stood at the time of delivery of the impugned decision; no evidence was taken. 68. The Code entered into force on 1 January 2003, replacing Part V of the Code of Civil Procedure. 69. Article 71 § 1(d) and (e) provides that a plaintiff is obliged to substantiate the relevant factual and legal grounds on which the action is based and to identify evidence in its support. 70. Under Article 75 § 2 the administrative court bases its decision on the facts and the law as they stood at the time of the impugned ruling. It may take evidence in this respect under Article 77 § 1. 71. Under Article 59 § 1 an appellate authority has full jurisdiction to examine a contested decision. If need be, it may complete the proceedings in question and remedy any shortcomings identified. 72. Article 244 § 6 provides that the supervisory board of a cooperative is entitled to request from the board of directors any information concerning the financial situation of the cooperative. The board of directors is obliged to inform the supervisory board without delay of any fact which might have serious consequences for the financial situation of the cooperative or the status of the cooperative or its shareholders. I. State Control Act Section 17 provides that an audit made by a controlling authority may be contested by objections which have to be raised within five days from the service of the audit on a controlled person. Under Section 18 an employee of a controlling authority is empowered to decide on raised objections. A controlled person may appeal that decision before the head of that authority within 15 days from that decision. The decision on the appeal is irrevocable. According to Section 26 the Code of Administrative Procedure is not applicable on proceedings under Section 18. J. Judgment of the Constitutional Court’s Plenary of 27 June 2001 (no. 276/2001) 73. Articles 244 – 250s [Part V] of the Code of Civil Procedure, in so far as they governed procedure of administrative courts, were repealed as of 31 December 2002 by this ruling. In its reasoning the Constitutional Court found these provisions contrary to Article 6 of the Convention as they, inter alia, limited jurisdiction of administrative courts to review administrative acts to issues of legality. It found that that the legislation in question empowered administrative courts to quash merely illegal decisions, not those embodying errors in fact. In other words, as the Constitutional Court put it, deliberation of administrative authorities could not be replaced, according to those provisions, by that of independent courts.
| 1
|
train
|
001-118477
|
ENG
|
ITA
|
CHAMBER
| 2,013
|
CASE OF TARANTINO AND OTHERS v. ITALY
| 1
|
Remainder inadmissible;No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education)
|
Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
|
5. The applicants’ particulars are set out in the table in the appendix. 6. On 4 September 2007 Ms Tarantino failed the entrance examination to study at the Faculty of Medicine in Palermo. In 2007 two thousand students sat this examination and there were two hundred and ten places available. She failed the examination again in 2008 and 2009. 7. On 14 December 2007 the first applicant and other students lodged a complaint with the President of the Republic alleging that Law no. 264/1999, in particular the two binding criteria used by the Ministry to set the number of students allowed admission to the relevant faculty of each university (see paragraph 17 below), was incompatible with Article 3(2)(c) and (g) of the Treaty establishing the European Economic Community, Directive 2005/36/CE on the recognition of professional qualifications, Article 15 of the Charter of Fundamental Rights of the European Union, Article 6 § 2 of the Treaty on the European Union, with regard to the principle of equality, and Article 2 of Protocol No. 1 to the Convention. She further contested both the State’s decision to impose the same limitations on private universities and the adequacy of the entrance examinations. The first applicant also asked to be provisionally admitted to the university under a conditional clause. 8. By a decree of 2 July 2008 the Supreme Administrative Court (Consiglio di Stato) rejected her request for an interim measure. 9. On 23 September 2008 the first applicant made further pleadings and reiterated her request for the matter be submitted to the European Court of Justice (the “ECJ”) for a preliminary ruling. Her pleadings were transmitted to the Supreme Administrative Court in October 2008. 10. By a decree of 28 April 2009 (no. 2256), adopted on the basis of the Supreme Administrative Court’s advisory opinion delivered on 12 November 2008 and notified to the first applicant on 14 May 2009, the President of the Republic rejected the complaints. The decree stipulated that, bearing in mind the human and material resources of the universities, the contested admission restrictions, allowing entrance only to the most meritorious students, were reasonable and therefore compatible with the provisions of the European Union (EU) invoked. Moreover, in line with the increase in society’s need for qualified doctors, admissions to the faculties of medicine in 2008-09 had increased by 10-20%. It noted that the professional examination, after a degree had been obtained, was not an academic title in itself but a State examination like those held in most States. Lastly, it dismissed the allegation that the entrance examination’s content was inadequate. 11. The other seven applicants had been or are still working as dental technicians or hygienists for a number of years. 12. On 4 September 2009, despite their relevant professional experience, those seven applicants failed the entrance examination to study at the Faculty of Dentistry. Any preceding and subsequent attempts were also unsuccessful. 13. Mr Marcuzzo (hereinafter “the eighth applicant”) had nevertheless passed the entrance examination in the academic year 1999/2000. However, following his failure to sit examinations for eight consecutive years on account of serious family problems (as provided for by the relevant University Rule, under Article 149 of Royal Decree no. 1592/1933), he lost his student status in July 2009. 14. These applicants conceded that they had not pursued available domestic remedies, since in their view they would have been ineffective. According to the well-established jurisprudence of the Supreme Administrative Court, limited access to universities is compatible with the Constitution and EU law (see, amongst others, the above-mentioned advisory opinion of 12 November 2008). The eighth applicant also argued that the Supreme Administrative Court had constantly held that subjective reasons, such as family problems (as in his case), could not be considered as exceptions to the rule favouring continuity of studies. In consequence, his claim would not have been successful. 15. Law no. 127/1997, amending section 9(4) of Law no. 341/1990, introduced, for the first time, a numerus clausus (limited access) to both public and private Italian universities. Section 17(116) of that Law provided that it was for the Ministry of Universities and Scientific and Technological Research to establish those limits. However, the Law did not establish or set clear criteria to determine the faculties subject to restrictions, the number of available places or the selection procedure. 16. On 27 November 1998 (judgment no. 383/1998), having been asked to examine the constitutionality of section 17(116) of Law no. 127/1997, the Constitutional Court delivered a judgment upholding the constitutionality of that Law. It considered that the discretion exercised by the Ministry of Universities and Research was not unfettered, since it must act according to an established legal framework. In this connection, in the absence of national legislation on the matter, the Constitutional Court made reference to relevant EU directives which aimed to ensure an adequate standard of education. The court further noted that it was for Parliament to rule on the subject. 17. Following the Constitutional Court’s judgment, Law no. 264/1999 was enacted. It provided that the Ministry of Universities and Research would establish the entrance quota of the Faculties of Medicine, Veterinary Medicine, Dentistry, Architecture and Nursing on the basis of two binding criteria: the capacity and resource potential of the universities, and society’s need for a particular profession (fabbisogno di professionalità del sistema sociale e produttivo). Based on that assessment, the Ministry would set the number of students allowed admission to the relevant faculty of each university. 18. On 21 April 2009 the Antitrust Authority (Autorità Garante della Concorrenza e del Mercato – “the AA”) issued a recommendation on the criteria for admission to the Faculty of Dentistry. The AA noted that: (a) in practice, the two criteria established by the Law were applied on the basis of the observations of the Ministry of Universities and Research and the Ministry of Health, and (b) any data gathered would be discussed by an expert task force, composed, inter alia, of representatives from the National Federation of Doctors and the Chamber of Doctors and Dentists. 19. In the AA’s view, the Italian Government were acting in breach of the Constitutional Court’s judgment (see paragraph 16 above) and EU law, in so far as the Law took into account not only educational standards but also data concerning occupational demand. Noting that the assessments were made with exclusive regard to the occupational demand of the National Health Service, the AA concluded that limiting admission to the Faculty of Dentistry amounted to an unreasonable restriction of competition in professional services. Indeed, by considering only public demand, to the exclusion of any private demand, the number of dentists was artificially reduced and dental fees were unjustifiably increased. Furthermore, the AA disapproved of the participation of professional associations in the above-mentioned task force, in so far as their decisions might be highly influenced by their own interests. 20. To be admitted, candidates were required to pass a multiple-choice examination consisting of eighty questions on general culture (including international geography and history), biology, chemistry, mathematics and physics. The examination, based on the high school syllabus, aimed to test the candidates’ aptitude for the subject matter pertaining to the faculty of their choice. 21. The relevant domestic courts repeatedly found that a numerus clausus and the way in which it was applied in the Italian legal framework were in accordance with both the Constitution and European Union legislation. Judgments in support of those findings include, inter alia: judgments no. 1931 of 29 April 2008, no. 5418 of 24 June 2008, and no. 5542 of 6 June 2008 of the Supreme Administrative Court; judgment no. 197 of the Florence Tuscany Administrative Tribunal of 12 February 2007; judgment no. 4559 of the Naples Administrative Tribunal of 2008; judgment no. 1931 of the Florence Tuscany Administrative Tribunal of 17 April 2008; judgment no. 145 of the Trent Administrative Tribunal of 11 June 2008; and judgment no. 1631 of the Supreme Administrative Court of 15 April 2010. In particular, in respect of the complainants’ claim that the criterion related to society’s need for a particular profession should not be limited to the national territory – to the exclusion of the current and imminent future needs of the entire European Community – the Supreme Administrative Court held, in its judgment no. 1931 of 29 April 2008, that it was evident that the major determining criterion was that based on the capacity and resource potential of universities, which allowed for proper scientific training as required by EU legislation. As had previously been upheld by the Constitutional Court (judgment no. 393 of 1998), the right to higher levels of education, even for the most meritorious students, depended on the availability of technical means and human resources, particularly in the study of sciences, which was both theoretical and practical. Indeed, EU legislation did not ban numeri clausi. European directives provided for the recognition of titles and degrees based on standards of minimum studies and guarantees of a real possession of the necessary knowledge to carry out a profession. However, they left it to individual States to determine the instruments, means and methods to fulfil the obligations set by those directives. The criterion relating to society’s need for a particular profession carried less weight than the capacity and resource criterion, and was indeed secondary. It would come into play in the unlikely event that availability was so abundant that it would be necessary to limit access to the profession to avoid saturating the market. With reference to a recommendation by the Health Ministry to limit the number of registered students (which formed the basis of the decision on the number of places available for the years 2006-07), the court considered that it was to be seen as a quantitative restriction not in view of society’s needs, but in the light of a need to ensure that specialised studies reached European standards. Given that the relevance of this criterion to the decision on the number of candidates to be registered each year had not been proven, and because EU law did not provide for unlimited and unconditional access to education for students, it was not necessary to refer the matter to the ECJ. 22. According to the Supreme Administrative Court judgment no. 1855 of 2005, the eight-year time-limit indicated in decree no. 1592 of 1933 is not a prescriptive period which can be interrupted, but the maximum time before the right (to attend the course) lapses. 23. Article 39 (former Article 48) of Title III relates to the free movement of persons, services and capital of the Treaty establishing the European Community. It reads as follows: “1. Freedom of movement for workers shall be secured within the Community. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service.” 24. Other relevant European Union texts include: Council Directive 86/457/EEC of 15 September 1986 on specific training in general medical practice; Council Directive 93/16/EEC of 5 April 1993 on facilitating the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications; and Council Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications.
| 0
|
train
|
001-101945
|
ENG
|
SVK
|
CHAMBER
| 2,010
|
CASE OF HAJDUOVA v. SLOVAKIA
| 3
|
Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant was born in 1960 and lives in Košice. 6. On 21 August 2001 the applicant's (now former) husband, A., attacked her both verbally and physically while they were in a public place. The applicant suffered a minor injury and feared for her life and safety. This led her and her children to move out of the family home and into the premises of a non-governmental organisation in Košice. 7. On 27 and 28 August 2001 A. repeatedly threatened the applicant, inter alia, to kill her and several other persons. Criminal proceedings were brought against him and he was remanded in custody. 8. On 29 November 2001 a public prosecutor indicted A. before the Košice I District Court (“the District Court”). The indictment stated that the accused had been convicted four times in the past. Two of the offences had been committed in the last ten years and involved breaches of court or administrative orders. 9. In the course of the criminal proceedings, experts established that the accused suffered from a serious personality disorder. His treatment as an inpatient in a psychiatric hospital was recommended. 10. On 7 January 2002 the District Court convicted A. The court decided not to impose a prison sentence on him and held that he should undergo psychiatric treatment. At the same time, the court released him from detention on remand. A. was then transported to a hospital in Košice. That hospital did not carry out the treatment which A. required, nor did the District Court order it to carry out such treatment. A. was released from the hospital on 14 January 2002. 11. After his release from hospital on 14 January 2002, A. verbally threatened the applicant and her lawyer. On 14 and 16 January 2002, respectively, the applicant's lawyer and the applicant herself filed criminal complaints against him. They also informed the District Court (which had convicted him on 7 January 2002) about his behaviour and of the new criminal complaints they had filed. 12. On 21 January 2002 A. visited the applicant's lawyer again and threatened both her and her employee. On the same day he was arrested by the police and accused of a criminal offence. 13. On 22 February 2002 the District Court arranged for psychiatric treatment of A. in accordance with its decision of 7 January 2002 (see paragraph 10 above). He was consequently transported to a hospital in Plešivec. 14. On 7 March 2002 the applicant filed a complaint with the Constitutional Court. She alleged a violation of Articles 5 and 6 of the Convention and of Articles 16 (§ 1) and 19 (§ 2) of the Slovak Constitution, in that the District Court had failed to ensure that her husband be placed in a hospital for the purpose of psychiatric treatment immediately after his conviction on 7 January 2002. 15. The Constitutional Court rejected the applicant's complaint on 2 October 2002. In its decision it found that there had been no interference with the applicant's rights under Article 5 § 1 of the Convention, as interpreted by the Convention organs. As to the alleged violation of the applicant's rights under Articles 16 (§ 1) and 19 (§ 2) of the Constitution, the applicant should have pursued an action for the protection of her personal integrity before the ordinary courts. Reference was made to the Constitutional Court's decisions on cases nos. I. ÚS 2/00 and II. ÚS 23/00. 16. Article 16 § 1 of the Slovak Constitution guarantees to everyone the inviolability of his or her home and privacy. 17. Article 19 § 2 guarantees to everyone the right to protection from unjustified interference with his or her private and family life. 18. In a decision of 5 January 2000 in case no. I. ÚS 2/00 the Constitutional Court declared inadmissible a petition in which the plaintiff alleged a violation of Article 19 of the Constitution in that the public authorities had systematically requested that he should submit his higher education diploma to them. The decision stated that the plaintiff should have sought the protection of his rights under Article 19 of the Constitution by means of an action for protection of his personal integrity pursuant to Articles 11 et seq. of the Civil Code. 19. In a decision of 23 March 2000 in case no. II. ÚS 23/00 the Constitutional Court rejected, for lack of jurisdiction, a petition in which the plaintiff had complained about a violation of his rights under Article 19 of the Constitution on the ground that the Minister of Justice had asked him to submit, as president of a District Court, information about his financial situation. The Constitutional Court held that the issue fell within the jurisdiction of the ordinary courts which had power to deal with it under Articles 11 et seq. of the Civil Code. 20. Under Article 351 § 1 of the Code of Criminal Procedure (Law no. 141/1961 Coll., as applicable at the relevant time) the president of the relevant chamber shall order the medical institution concerned to carry out the treatment of a person in accordance with the court's decision. Where the person concerned represents a danger to his or her environment, the president of the chamber shall arrange for his or her immediate transfer to the medical institution (paragraph 2 of Article 351). 21. In accordance with the practice of the Supreme Court (R 46/1977) the medical treatment of a person ordered by a court should, in principle, be arranged for immediately after the relevant decision has become executable. 22. The Civil Code reads as follows: “Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, reputation and expressions of a personal nature.” “1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation. 2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party's dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage. 3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.” 23. Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov) was adopted on 28 October 2003. It became operative on 1 July 2004 and replaced, as from that date, the State Liability Act of 1969. 24. The explanatory report to Act No. 514/2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights. 25. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature. 26. For a more detailed analysis of the relevant domestic law, see also the Court's admissibility decision in the case of Kontrová v. Slovakia (dec.), no. 7510/04, 13 June 2006. 27. For a summary of relevant international material see the Court's judgment in Opuz v. Turkey, no. 33401/02, §§ 72-86 , ECHR 2009..., in particular the Committee of Ministers of the Council of Europe's Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence.
| 1
|
train
|
001-92142
|
ENG
|
SVN
|
GRANDCHAMBER
| 2,009
|
CASE OF ŠILIH v. SLOVENIA
| 2
|
Preliminary objection dismissed (ratione temporis);Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Alvina Gyulumyan;András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Vladimiro Zagrebelsky
|
10. The applicants, Franja and Ivan Šilih, were born in 1949 and 1940 respectively and live in Slovenj Gradec. 11. On 3 May 1993, at some point between midday and 1 p.m., the applicants' twenty-year-old son, Gregor Šilih, sought medical assistance in the Slovenj Gradec General Hospital for, inter alia, nausea and itching skin. He was examined by a duty doctor, M.E. On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid (Dexamethason) and an antihistaminic (Synopen). Following the injections, the applicants' son's condition significantly deteriorated. This was probably a result of him being allergic to one or both of the drugs. His skin became very pale, he began to tremble and to feel cold; M.E. noticed signs of tachycardia. A diagnosis of anaphylactic shock was made. Subsequently, at 1.30 p.m., the applicant's son was transferred to intensive care. M.E. ordered the administration of, inter alia, adrenaline. By the time the cardiologist arrived, the applicants' son had stopped breathing and had no pulse. Cardiopulmonary resuscitation was given. At around 2.15 p.m. the applicants' son was connected to a respirator and his blood pressure and pulse returned to normal, but he remained in a coma; his brain was severely damaged. 12. On 4 May 1993 he was transferred to the Ljubljana Clinical Centre (Klinični center v Ljubljani), where he died on 19 May 1993. 13. The exact timing of the events which led to the death of the applicants' son and the action taken by M.E. in response to his deteriorating condition were disputed in the domestic proceedings. 14. On 13 May 1993 the applicants lodged a criminal complaint (ovadba) with the Slovenj Gradec Unit of the Maribor First-Instance Public Prosecutor's Office (Temeljno javno tožilstvo Maribor, Enota v Slovenj Gradcu) against M.E. for the criminal offence of “negligent medical treatment” (nevestno zdravljenje) which, following the applicants' son's death, was characterised as “a serious criminal offence that [had] caused damage to health” (hudo kaznivo dejanje zoper človekovo zdravje). The applicants argued that, through the intravenous injection of the two drugs, M.E. had given their son the wrong treatment and had subsequently failed to take appropriate corrective measures after his condition deteriorated. 15. In the course of the preliminary proceedings (predkazenski postopek) medical documents concerning the treatment administered to the applicants' son were seized by the police and, following his death, the duty investigating judge (preiskovalni sodnik) directed the Ljubljana Institute for Forensic Medicine (Inštitut za sodno medicino v Ljubljani) to conduct an autopsy and prepare a forensic report. 16. On 26 August 1993 the police submitted a report to the public prosecutor from which it appears that the Ministry of Health (Ministrstvo za zdravstvo) requested the Medical Association (Zdravniško Društvo) to set up a commission to prepare an opinion in the case. The commission was composed of the same experts as those who were preparing the forensic report (see paragraph 17 below). According to the report, the opinion was sent on 11 June 1993 to the Ministry of Health, which published it in two of Slovenia's main newspapers on 19 June 1993. 17. On 1 July 1993 the Ljubljana Institute for Forensic Medicine submitted their report, which stated, inter alia: “The anaphylactic shock which ... followed the administration of Dexamethason and Synopen was most likely due to sensitivity to one of the mentioned drugs. The medical treatment of anaphylactic shock in the Slovenj Gradec Hospital was, on the basis of the medical records, in accordance with established medical practice. The consequent ventricular fibrillation was influenced by the infection of the heart muscle, which Gregor Šilih must have contracted several weeks before 3 May 1993. After the ventricular fibrillation occurred, the hospital staff gave resuscitation. According to the medical records, this was performed in accordance with established medical practice. In the period from Gregor Šilih's admission to the Slovenj Gradec Hospital until his death, we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent.” 18. On 8 April 1994 the public prosecutor dismissed the applicants' criminal complaint on the ground of insufficient evidence. 19. On 1 August 1994 the applicants, acting as “subsidiary” prosecutors (subsidiarni tožilec), lodged a request for the opening of a criminal investigation (zahteva za preiskavo) into M.E.'s conduct. 20. On 8 November 1994, having heard representations from M.E. on 26 October 1994, the investigating judge of the Maribor First-Instance Court (Temeljno sodišče v Mariboru) granted their request. On 27 December 1994, on an appeal (pritožba) by M.E., the interlocutory-proceedings panel (zunaj-obravnavni senat) of the Maribor First-Instance Court overturned the investigating judge's decision after finding that the evidence in the case-file, in particular the forensic report, did not afford reasonable grounds for suspecting M.E. of manifestly acting in breach of professional standards. 21. An appeal by the applicants and a request for the protection of legality (zahteva za varstvo zakonitosti) were dismissed, the latter in a decision of 29 June 1995 by the Slovenj Gradec District Court (Okrožno sodišče v Slovenj Gradcu), which obtained jurisdiction in the case after the reorganisation of the judiciary in 1995. The applicants contested that decision. On 5 October 1995 the Maribor Higher Court (Višje sodišče v Mariboru) dismissed their appeal on essentially the same grounds as those on which the previous appeal and request for the protection of legality had been rejected, namely that the applicants were not entitled to appeal against the interlocutory-proceedings panel's decision not to institute criminal proceedings against the doctor. 22. Subsequently the applicants obtained a medical opinion from Doctor T.V. who stated, inter alia, that myocarditis (inflammation of the heart muscle), which had previously been considered a contributory factor in the death of the applicants' son, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995 they lodged a request to reopen the criminal investigation (see paragraph 90 below). In addition, they lodged a motion to change the venue of the proceedings to the Maribor District Court (Okrožno sodišče v Mariboru). On 31 January 1996 the Maribor Higher Court granted their motion for a change of venue. 23. On 26 April 1996 the interlocutory-proceedings panel of the Maribor District Court granted the applicants' request for the reopening of the investigation. An appeal by M.E. was rejected by the Maribor Higher Court on 4 July 1996. 24. In the course of the investigation, the investigating judge examined witnesses and obtained an opinion from P.G., an expert at the Institute of Forensic Medicine in Graz (Austria). P.G. stated in his report that the administration of the antihistaminic had led to the applicants' son's serious allergic reaction. He expressed doubts as to the pre-existence of myocarditis. 25. On 10 February 1997 the investigating judge closed the investigation. 26. Owing to the complexity of the case, the applicants asked the Maribor District Public Prosecutor's Office (Okrožno državno tožilstvo v Mariboru) to take over the conduct of the prosecution. Their request was rejected on 21 February 1997. The Head of the Maribor District Public Prosecutor's Office subsequently explained to the Supreme Public Prosecutor (Vrhovni državni tožilec) that, while P.G.'s report confirmed the existence of reasonable suspicion that M.E. had caused the death by negligence, it was not a sufficient basis on which to lodge an indictment as that required a degree of certainty. 27. On 28 February 1997 the applicants lodged an indictment accusing M.E. of the criminal offence of “causing death by negligence” (povzročitev smrti iz malomarnosti). 28. On 7 May 1997, upon M.E.'s objection to the indictment, the interlocutory-proceedings panel of the Maribor District Court directed the applicants to request, within three days, additional investigative measures (see paragraph 93 below). 29. The investigating judge subsequently examined several witnesses and ordered a forensic report by K.H., an Austrian forensic expert in the field of emergency medicine and anaesthesia. K.H. stated in his report that the ultimate reason for the death of the applicants' son was relatively uncertain, so that the issue of the effectiveness of the measures taken by M.E in response to the son's condition was of no relevance. 30. On 22 June 1998 the investigating judge informed the applicants that it had been decided to close the investigation. He reminded them that they must either lodge an indictment or a further request for additional investigating measures within fifteen days (see paragraphs 91-92 below). 31. On 30 June 1998 the applicants asked the investigating judge to question K.H., P.G. and T.V. 32. On 24 November 1998, after questioning K.H., the investigating judge informed the applicants that the investigation had been closed. They were again reminded that they must either lodge an indictment or a further request for additional investigative measures within fifteen days. 33. On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been obtained in the extended investigation. On 12 January 1999 an interlocutory-proceedings panel rejected M.E.'s objection to the initial indictment as unfounded. 34. On 22 January 1999 M.E. lodged a request for the protection of legality, claiming that the indictment submitted on 10 December 1998 had not been served on her. On 25 February 1999 the Supreme Court (Vrhovno sodišče) quashed the Maribor District Court's decision of 12 January 1999 and remitted the case to the District Court with instructions to serve the indictment of 10 December 1998 on M.E. M.E. subsequently lodged an objection to that indictment and on 3 June 1999 the interlocutory-proceedings panel decided to refer the case back to the applicants, directing them to obtain further evidence – by requesting additional investigative measures – within three days from the service of its decision. 35. The applicants complied with the directions and on 21 June 1999 requested additional investigative measures, in particular the examination of K.H., P.G. and T.V. In their request, they complained of the remittal of the case since they considered that the evidence should have been further assessed at the trial and not at that stage of the proceedings. 36. Further to their request, the investigating judge ordered a supplementary report from K.H. and, on 3 December 1999, informed the applicants that further investigative measures had been taken and that they had 15 days in which to lodge an indictment or request additional measures. 37. Following a request by the applicants on 16 December 1999 for further measures, the investigating judge ordered a reconstruction of the events of 3 May 1993 and the examination of two witnesses. 38. The investigation was closed on 3 May 2000. The applicants were reminded of the requirements under section 186, paragraph 3, of the Criminal Procedure Act (“the CPA” – see paragraph 92 below). 39. In the meantime, on 28 June 1999 the applicants again made an unsuccessful request to the public prosecutor to take over the conduct of the prosecution. 40. On 19 May 2000 the applicants filed a further indictment and the additional evidence they had been directed to obtain. 41. In August 2000 the applicants complained to the Judicial Council (Sodni svet) about the length of the criminal proceedings. They also challenged the three judges sitting on the interlocutory-proceedings panel which had previously heard M.E.'s objection to the indictment. On 10 October 2000 the President of the Maribor District Court rejected the applicants' request for the judges to stand down. 42. Following a further objection to the indictment by M.E., the interlocutory-proceedings panel examined the case on 18 October 2000 and decided to discontinue the criminal proceedings. Relying in particular on the opinions of the Ljubljana Institute of Forensic Medicine and K.H., it found that the applicants' son's reaction to the administration of Dexamethason and/or Synopen was a consequence of his sensitivity to those drugs and of myocarditis, which was undoubtedly a pre-existing condition. As regards the conduct of M.E., the interlocutory-proceedings panel found that there was insufficient evidence to substantiate the applicants' accusation that she had committed the criminal offence alleged. The applicants were ordered to pay the court fees and the expenses incurred in the proceedings since 23 January 1999 (the date the CPA was amended so as to require the aggrieved party to pay costs if the proceedings ended with the dismissal of the indictment). 43. On 7 November 2000 the applicants lodged an appeal which the Maribor Higher Court dismissed on 20 December 2000. They then petitioned the Public Prosecutor-General (Generalni državni tožilec), asking him to lodge a request for the protection of legality with the Supreme Court. Their petition was rejected on 18 May 2001. 44. In the meantime, on 13 March 2001 the applicants lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče), complaining of procedural unfairness and the length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory-proceedings panel. On 9 October 2001 the Constitutional Court dismissed their appeal on the ground that after the final discontinuance of criminal proceedings a “subsidiary” prosecutor could not appeal to the Constitutional Court, as he had no locus standi before that court. 45. On 27 March 2001 the applicants also lodged a criminal complaint alleging improper conduct on the part of seven judges of the Maribor District and Higher Courts who had sat in their case. The complaint was dismissed as unfounded by the Maribor District Public Prosecutor's Office on 13 June 2001. 46. Subsequently, the applicants made several attempts to reopen the case. Among other motions filed by the applicants that were rejected as inadmissible by the authorities were the following. On 3 July 2001 they lodged a “request for the criminal proceedings to be reinstated”, which was considered in substance to be a request for the reopening of the case. On 29 August 2001 the interlocutory-proceedings panel of the Maribor District Court dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case. On 9 November 2001 the Maribor Higher Court rejected an appeal by the applicants dated 4 September 2001. On 24 June 2002 the applicants lodged with the Maribor Higher Court a “request for immediate annulment of the entire criminal proceedings ... conducted before the Maribor District Court”. This was also considered in substance to be a request for the reopening of the case and was likewise dismissed. On 27 November 2002 the Maribor Higher Court rejected an appeal by the applicants. 47. Ultimately, on 17 July 2002 the applicants lodged a fresh indictment against M.E. On 14 July 2003 the Slovenj Gradec District Court struck the indictment out because the prosecution of the alleged offence had become time-barred on 3 May 2003. 48. On 6 July 1995 the applicants instituted civil proceedings against the Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec District Court for the non-pecuniary damage they had sustained as a result of their son's death in the amount of 24,300,000 Slovenian tolars (SIT). 49. On 10 August 1995 they also instituted proceedings against the head of the internal medical care unit, F.V., and the director of the Slovenj Gradec General Hospital, D.P. Further to a request by the applicants, the court joined the two sets of proceedings. 50. All the defendants in the proceedings had lodged their written pleadings by October 1995. 51. On 30 August 1997, in a supervisory appeal (nadzorstvena pritožba) to the President of the Slovenj Gradec District Court, the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed. 52. On 21 October 1997, referring to sub-paragraph 1 of section 213 of the Civil Procedure Act (see paragraph 97 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the determination of the preliminary question (predhodno vprašanje), namely the verdict in the criminal proceedings. The applicants did not appeal against that decision, which therefore became final on 17 November 1997. 53. On 22 October 1998 Judge S.P. replied to a supervisory appeal by the applicants dated 15 October 1998, inter alia in the following terms: “[The applicants] are 'subsidiary' prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.” Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants. 54. In February 1999 the applicants again filed a supervisory appeal; the stay, however, remained in force. 55. On 27 August 1999 Judge P.P., to whom the case appears to have been assigned in the meantime, sent the applicants a letter, in which he stated, inter alia: “In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court.” 56. On 8 September 1999 the applicants filed a motion for a change of venue which the Supreme Court rejected on 13 October 1999. 57. On 6 December 1999 the Slovenj Gradec District Court informed the applicants that the reasons for staying the proceedings still obtained. 58. On 12 March 2001 the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted. On 19 May 2001 Judge P.P. scheduled a hearing for 13 June 2001. However, that hearing was subsequently cancelled at the applicants' request after their representative explained that she had been injured in a road accident and was on sick leave. 59. On 11 June 2001 the applicants filed a further motion for a change of venue. On 27 September 2001 the Supreme Court decided to move the venue to the Maribor District Court on the grounds of “tension that was impeding and delaying the trial”. 60. The case was subsequently assigned to Judge M.T.Z. On 3 April 2002 the Maribor District Court held a hearing which was adjourned as the applicants indicated that they wished to lodge a request for the judges officiating at that court to stand down. 61. After lodging a criminal complaint against some of the judges (see paragraph 45 above), the applicants filed a motion on 8 April 2002 for all the judges at the Maribor District Court and Maribor Higher Court to stand down. Having been asked to comment on the applicants' request, Judge M.T.Z. stated, inter alia, that she had realised at the hearing on 3 April 2002 that one of the defendants, with whom she had shaken hands at the hearing, was a close acquaintance (“dober znanec”) of her father. She added that the applicants were constantly lodging objections which had made it impossible to conduct the proceedings properly. It would appear that Judge M.T.Z subsequently herself requested permission to withdraw from the case. On 12 August 2002 the request for the judges to stand down was granted in so far as it concerned Judge M.T.Z. The case was assigned to Judge K.P. 62. On 21 November 2002 and 20 March 2003 the Supreme Court rejected the applicants' motions for a change of venue. 63. A hearing scheduled for 12 June 2003 was adjourned at the applicants' request, after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in the Ljubljana Clinical Centre. They subsequently informed the court that their lawyer would, in fact, continue to represent them. 64. On 28 October 2003 the Maribor District Court held a hearing at which it examined F.V. and M.E. It would appear from the records of the hearing that the applicants were not allowed to ask a series of twelve questions they wished to put. The judge's decision not to allow the questions was based mostly on objections made by the defendant, although on four occasions the court does appear to have stated reasons for its decision not to allow the question concerned. 65. On 8 December 2003 the applicants filed a motion for Judge K.P. to stand down. That request was rejected on 18 December 2003. 66. A hearing scheduled for 16 January 2004 was adjourned because the applicants had lodged a further motion for a change of venue. On 5 March 2004 the applicants lodged another motion. Both motions were rejected by the Supreme Court (on 22 January 2004 and 13 May 2004 respectively). 67. It appears that hearings scheduled for 23 and 24 March 2005 were adjourned because of the applicants' newly appointed lawyer's commitments in another, unrelated case. 68. On 4 May 2005 the applicants filed written submissions and amended their claim for damages. They also requested that the proceedings be expedited. 69. On 12 October 2005 Judge D.M., to whom the case had apparently meanwhile been assigned, was ordered by the President of the Maribor District Court to treat the case with priority and to report every sixty days on the status of the proceedings. The President explained his decision by referring to the length of the proceedings, the case's high profile and the intervention by the Ombudsman (Varuh človekovih pravic). 70. A hearing was held on 23, 25 and 27 January 2006 before Judge D.M. The applicants withdrew their claims in respect of F.V. and D.P. After the hearing, they requested Judge D.M. to stand down on the grounds that she had refused to allow them adequate time to reply to their opponent's extensive submissions which had been filed on the same day. Their request was rejected by the President of the Maribor District Court on 30 January 2006. However, on 31 January 2006 Judge D.M. herself asked to withdraw from the proceedings on the ground that her full name had been mentioned in a newspaper article on 28 January 2006 which had also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings. The president of the court upheld her request as being “certainly well-founded”. 71. The case was subsequently assigned to Judge A.Z. 72. Hearings were held on 16 June and 25 August 2006. 73. On 25 August 2006 the Maribor District Court delivered a judgment rejecting the applicants' claim, which ultimately amounted to SIT 10,508,000 in respect of non-pecuniary damage and SIT 5,467,000 in respect of pecuniary damage. The applicants were ordered to pay legal costs to the defendants. Relying on the expert opinions, the court concluded that M.E. could not have foreseen the applicants' son's reaction to the drugs that were administered to him and that she and the hospital staff had acted in accordance with the required standard of care. In addition, the court rejected as unsubstantiated the applicants' claim that the hospital was not properly equipped. 74. On 25 October 2006 the applicants lodged an appeal with the Maribor Higher Court. They argued that the first-instance court had not correctly established all the relevant facts, had wrongly applied the substantive law and had committed a procedural error by not allowing or taking into account certain evidence and, in particular, by refusing to obtain a further expert opinion. 75. On 15 January 2008 the Maribor Higher Court rejected the appeal as unsubstantiated and upheld the first-instance court's judgment. 76. On 28 February 2008 the applicants lodged an appeal on points of law (revizija). 77. On 10 July 2008 the Supreme Court rejected the applicants' appeal on points of law after noting that, apart from the reference to the European Court of Human Rights' judgment finding a violation of Article 2 of the Convention, it raised essentially the same complaint as their appeal to the Higher Court, namely the refusal to obtain or consider certain evidence the applicants considered relevant. It rejected the complaint as unsubstantiated, finding that the lower courts had acted in accordance with the law. It further held that the European Court of Human Rights' judgment, which related to the requirement for the prompt examination of cases concerning death in a hospital setting, could not have influenced its conclusion as to the lawfulness of the refusal to obtain or consider the evidence in question. 78. On 15 September 2008 the applicants lodged a constitutional appeal with the Constitutional Court alleging a violation of the following constitutional guarantees: the right to equality before the law, the inviolability of human life, the right to equal protection, the right to judicial protection and the right to legal remedies. The proceedings are still pending. 79. On 29 April 2002 the Maribor District Public Prosecutor lodged a bill of indictment (obtožni predlog) against the first applicant alleging that she had engaged in insulting behaviour by saying to an official at the Maribor District Court “I have had enough of this f*** court, the damn State does not do anything, isn't it aware that our son was killed!”. The prosecution was based on a criminal complaint filed by the Maribor District Court. 80. On 5 October 2004 the Maribor District Court withdrew the criminal complaint as a result of the Ombudsman's intervention (see paragraph 85 below). The Maribor Local Court subsequently dismissed the bill of indictment. 81. The applicants lodged several petitions with the Ombudsman's office concerning the conduct of the civil proceedings. Their case was reported in the Ombudsman's Annual Reports of 2002, 2003 and 2004. 82. In a letter to the President of the Slovenj Gradec District Court on 24 April 2001, the Deputy Ombudsman stressed that the issue of criminal liability could not be regarded as a preliminary question in the civil proceedings instituted against the doctor and the hospital. He further stated that there was no justification for staying the civil proceedings. 83. In a letter to the applicants of 29 August 2002 and his Annual Report of 2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge M.T.Z. He stressed that the judge had expressed concerns about her ability to appear impartial only after the applicants had filed the request for her to stand down and after the Ombudsman's intervention in the case, although she had been aware of the reasons for the concerns beforehand. 84. The section of the Ombudsman's Report of 2003 (pp. 226-228) dealing with the applicants' case and in particular criticising aspects of the judge's conduct of the civil proceedings states, inter alia: “In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... As regards the majority of these twelve questions, the record contains no indication why the judge did not allow the plaintiffs to put the questions. In each instance, there was a prior objection by the defendants' representatives to the question. ... Although [the applicants'] reactions, statements and proposals were perhaps extreme on occasion, the authorities, including the courts, ought to have taken into account their emotional distress ... [a factor which] may necessitate the trial being conducted in a particularly tolerant and flexible way, [though] without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing, an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs' representative.” 85. In his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the Maribor District Court for filing the criminal complaint against the first applicant. The report drew attention to the Maribor District Court's explanation that it was required by law to file and pursue the criminal complaint as it would be guilty of a criminal offence if it did not. The Ombudsman stressed that there was no legal basis for such a conclusion. On the contrary, a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party's criminal complaint, which in the instant case was the Maribor District Court's complaint. Following the Ombudsman's intervention and in view of the arguments set out in his letters, the Maribor District Court decided to withdraw the criminal complaint against the first applicant. 86. The Criminal Code (Kazenski zakonik, Official Gazette no. 63/94), as amended, defines, under the heading “Criminal Offences causing Damage to Health” criminal offences concerning injury caused by negligent health care. In addition, Article 129 of the Criminal Code provides that anyone who causes the death of another by negligence shall be sentenced to imprisonment for not less than six months and not more than five years. These offences are subject to mandatory prosecution by the public prosecutor, but a “subsidiary” prosecution by an aggrieved party will also lie (see paragraph 88 below). 87. Criminal proceedings in Slovenia are regulated by the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94 – “the CPA”) and are based on the principles of legality and officiality. Prosecution is mandatory when reasonable suspicion (utemeljeni sum) exists that a criminal offence subject to mandatory prosecution has been committed. 88. Public prosecutions are conducted by the public prosecutor's office. However, if the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the conduct of the proceedings in the capacity of “subsidiary” prosecutor, that is, as an aggrieved party acting as a prosecutor (CPA, section 19(3)). A “subsidiary” prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the “subsidiary” prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)). 89. Criminal investigations are conducted by the investigating judge at the request of a public or “subsidiary” prosecutor. If the investigating judge does not agree with a request to open an investigation, he must refer it to an interlocutory-proceedings panel of three judges, which then decides whether to open a criminal investigation. If the investigating judge grants the request, the accused may lodge an appeal with the interlocutory-proceedings panel. Parties to the proceedings may appeal against the interlocutory-proceedings panel's decision to the Higher Court (višje sodišče). Appeals do not stay the execution of the decision to open an investigation (section 169 of the CPA). 90. If a request for an investigation has been dismissed owing to a lack of reasonable suspicion that the suspect has committed a criminal offence, the criminal proceedings may be reopened at the request of the public or “subsidiary” prosecutor provided new evidence is adduced on the basis of which the interlocutory-proceedings panel is able to satisfy itself that the conditions for instituting criminal proceedings are met (CPA, section 409). 91 92. As regards the aggrieved party's role in the investigation, the relevant part of section 186 of the CPA provides: “(1) An aggrieved party acting as a prosecutor ... may request the investigating judge to open an investigation or propose additional investigative measures. During the course of the investigation they may also submit other proposals to the investigating judge. (2) The institution, conduct, suspension and termination of an investigation shall be governed, mutatis mutandis, by the provisions of the present Act applying to ... the investigation conducted at the request of the public prosecutor... (3) When the investigating judge considers that the investigation is complete he or she shall inform the aggrieved party acting as a prosecutor... The investigating judge shall also advise such aggrieved party .... that he or she must file the indictment ... within fifteen days, failing which he or she may be deemed to have withdrawn from the prosecution and a decision may be taken to discontinue the proceedings. The investigating judge shall also be bound to give such warning to the aggrieved party acting as a prosecutor ... in cases where the panel has dismissed his or her motion to supplement the investigation because it is of the opinion that the matter has been sufficiently investigated.” 93. After the investigation has ended, court proceedings may be conducted only on the basis of an indictment (CPA, section 268). Under section 274 of the CPA, the accused may lodge an objection to the indictment within eight days after its receipt. The objection is examined by the interlocutory-proceedings panel. Section 276 of the CPA provides, inter alia: “(2) If in considering the objection the interlocutory-proceedings panel discovers errors or defects in the indictment (section 269) or in the procedure itself, or finds that further investigations are required before the decision on the indictment is taken, it shall return the indictment to the prosecutor with directions to correct the established defects or to supplement ... the investigation. The prosecutor shall within three days of being informed of the decision of the panel submit an amended indictment or request a ... supplementary investigation. ...” 94. In addition, the relevant part of section 277 of the CPA provides: “(1) In deciding an objection to the indictment the interlocutory-proceedings panel shall not accept the indictment and shall discontinue the criminal proceedings if it finds that: ... (3) a criminal prosecution is statute-barred ... (4) there is not enough evidence to justify reasonable suspicion that the accused has committed the act with which he is charged.” 95. Under the provisions of the Obligations Act (Zakon o obligacijskih razmerjih, Socialist Federative Republic of Yugoslavia's (“SFRJ”) Official Gazette no. 29/1978,) and its successor from 1 January 2002, the Code of Obligations (Obligacijski zakonik, Official Gazette no. 83/2001), health institutions and their employees are liable for pecuniary and non-pecuniary damage resulting from the death of a patient through medical malpractice. The employer may incur civil liability for its own acts or omissions or vicarious liability for damage caused by its employees provided that the death or injury resulted from the employee's failure to conform to the relevant standard of care. Employees are directly liable for death or injury under the civil law only if it is caused intentionally. However, the employer has a right to bring a claim for a contribution from the employee if the death or injury was caused by the latter's gross negligence. 96. Section 12 of the Civil Procedure Act (Zakon o pravdnem postopku, SFRJ Official Gazette no. 4-37/77), as amended, provides: “When the decision of the court depends on a preliminary determination of the question whether a certain right or legal relationship exists, but [the question] has not yet been decided by a court or other competent authority (preliminary question), the court may determine the question by itself, save as otherwise provided in special legislation. The court's decision on the preliminary question shall be effective only in the proceedings in which the question was determined. In civil proceedings, the court shall be bound with respect to the existence of a criminal offence and criminal liability by a finding of guilt by a criminal court judgment that is final.” 97. The relevant part of section 213 of the Civil Procedure Act provides as follows: “In addition to the examples specifically given in this Act, the court may order a stay of proceedings: 1. if it decides not to determine the preliminary question itself (section 12)...” 98. The relevant part of section 215 of the Civil Procedure Act provides: “If the court has stayed the proceedings in accordance with the first line of the first paragraph of ... section 213, the proceedings shall resume once the [other] proceedings are finally concluded (pravnomočno končan postopek) ... or when the court finds that there is no longer any reason to await the end [of the other proceedings]. In all cases, the discontinued proceedings shall continue at the relevant party's request, immediately after the reasons justifying the stay cease to exist.” 99. Equivalent provisions can be found in sections 13, 14, 206 and 208 of the new Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001), which came into force on 14 July 1999. 100. The Regulation on the organisation and functioning of the Tribunal of the Medical Association of Slovenia (“the Medical Tribunal”) (Pravilnik o organizaciji in delu razsodišča Zdravniške Zbornice Slovenije), issued on 20 March 2002, lays down, inter alia, the procedure for establishing the responsibility of doctors for breaches of the professional rules and the disciplinary measures which can be taken as a result. The Commissioner of the Medical Association (tožilec Zbornice – “the Commissioner”), who is elected from among the members of the Medical Association, is autonomous and has authority to lodge a case with the first-instance Medical Tribunal. An aggrieved party may request the Commissioner to start the proceedings, but the Commissioner may reject such a request. If so, the aggrieved party may invite the Medical Tribunal to conduct a preliminary investigation. However, the power to file a formal case with the Medical Tribunal is vested solely in the Commissioner. 101. Article 7 of the Regulation provides that the Medical Tribunal must base its decision solely on the indictment and the evidence submitted by the Commissioner and the accused doctor. If the accused doctor or the Commissioner is dissatisfied with the verdict, he or she may appeal to the second-instance Medical Tribunal. 102. On 1 January 2007 the Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette no. 49/2006 – “the 2006 Act”) became operational. The 2006 Act provides for two remedies to expedite pending proceedings – a supervisory appeal and a motion for a deadline to be set (rokovni predlog) – and, ultimately, for a claim for just satisfaction in respect of damage sustained because of undue delay (zahteva za pravično zadoščenje). 103. The above remedies are available, inter alia, to parties to civil proceedings and aggrieved parties in criminal proceedings. 104. The acceleratory remedies can be applied for during first- or second-instance proceedings. In addition, the 2006 Act also provides the possibility of redress through a compensatory remedy, namely by bringing a claim for just satisfaction. By virtue of sections 15, 19 and 20 of the 2006 Act a party wishing to lodge a claim for just satisfaction must satisfy two cumulative conditions. Firstly, during the first- and/or second-instance proceedings the applicant must have used the supervisory-appeal procedure or lodged a motion for a deadline. Secondly, the proceedings must have been finally resolved (pravnomočno končan). The final resolution of the case in principle refers to the final decision against which no ordinary appeal lies; this is normally the first-, or if an appeal has been lodged, the second-instance court's decision. Moreover, the amount which can be awarded in respect of non-pecuniary damage sustained as a result of the excessive length of the proceedings in each finally resolved case cannot exceed 5,000 euros (EUR) (for a more detailed presentation of the relevant provisions of the 2006 Act, see Žunič v. Slovenia, (dec) no. 24342/04, 18 October 2007). 105. On 28 June 1994, when depositing the instrument of ratification of the Convention with the Secretary General of the Council of Europe, the Ministry of Foreign Affairs of the Republic of Slovenia made the following declaration: “The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of [a] violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia. The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement, on condition of reciprocity, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.” 106. The Vienna Convention on the Law of Treaties (the Vienna Convention) entered into force on 27 January 1980. Article 28, which contains the principle of the non-retroactivity of treaties, provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” 107. Article 13, which is headed “International obligation in force for a State”, provides: “An act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.” 108. Furthermore, Article 14, which is headed “Extension in time of the breach of an international obligation”, reads as follows: “1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue. 2. The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. 3. The breach of an international obligation requiring a State to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation.” 109. The approach adopted by the International Court of Justice (ICJ) in cases raising an issue as to ratione temporis jurisdiction has focused on the source or real cause of the dispute (see also the case-law cited in Blečić v. Croatia [GC], no. 59532/00, § 74, ECHR 2006III). In the Case concerning Right of Passage over Indian Territory (Merits) (Judgment of 12 April 1960: I.C.J. Reports 1960 p.p. 33-36), the ICJ, relying on the jurisprudence of the Permanent Court of International Justice (PCIJ), found it had temporal jurisdiction to deal with a dispute concerning India's denial to Portugal of passage between its territory and its two enclaves in Indian Territory in 1954. India argued, inter alia, that the dispute was inadmissible ratione temporis as the Portuguese claim to a right of passage predated the court's jurisdiction, which had begun on 5 February 1930. The ICJ, however, found that: “... it appeared ..., that the dispute submitted to the Court has a threefold subject: (1) The disputed existence of a right of passage in favour of Portugal; (2) The alleged failure of India in July 1954 to comply with its obligations concerning that right of passage; (3) The redress of the illegal situation flowing from that failure. The dispute before the Court, having this three-fold subject, could not arise until all its constituent elements had come into existence. Among these are the obstacles which India is alleged to have placed in the way of exercise of passage by Portugal in 1954. The dispute therefore as submitted to the Court could not have originated until 1954.” 110. The ICJ therefore found that there was not, so far as the date of the birth of the dispute was concerned, any bar to its jurisdiction. Referring to the terms of the Indian Declaration of Acceptance of the court's jurisdiction, the ICJ noted that the Declaration did not proceed on the principle of excluding from the acceptance any given dispute, but proceeded in a positive manner on the basis of indicating the disputes which were included within that acceptance. The ICJ found: “.... By its terms, the jurisdiction of the Court is accepted 'over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date'. In accordance with the terms of the Declaration, the Court must hold that it has jurisdiction if it finds that the dispute submitted to it is a dispute with regard to a situation subsequent to 5 February 1930 or is one with regard to facts subsequent to that date. The facts or situations to which regard must be had in this connection are those with regard to which the dispute has arisen or, in other words, as was said by the Permanent Court in the case concerning the Electricity Company of Sofia and Bulgaria, only 'those which must be considered as being the source of the dispute', those which are its 'real cause'. ... The Permanent Court thus drew a distinction between the situations or facts which constitute the source of the rights claimed by one of the Parties and the situations or facts which are the source of the dispute. Only the latter are to be taken into account for the purpose of applying the Declaration accepting the jurisdiction of the Court.” The ICJ went on to find that: “...it was only in 1954 that such a controversy arose and the dispute relates both to the existence of a right of passage to go into the enclaved territories and to India's failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all of this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with.” 112. In the case of S.E. v. Argentina (Communication No. 275/1988, which was declared inadmissible on 26 March 1990), the applicant's three children had been abducted by Argentine security forces in 1976 and their whereabouts had been unknown ever since. On 8 November 1986 the Covenant and the Optional Protocol entered into force in respect of Argentina. In December 1986 and June 1987 the Argentine legislature enacted legislation preventing new investigations into the so-called “dirty-war” and providing an amnesty for members of the security forces for related crimes. The applicant claimed that the enactment of this legislation constituted violations by Argentina of its obligations under Article 2, paragraphs 2 and 3, of the Covenant. Taking into account that in order for the right to a remedy to arise, a violation of a substantive right must be established, the Committee observed that: “ 5.3. ... the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis.” 113. In the more recent case of Mariam Sankara et al. v. Burkina Faso (Communication No. 1159/2003, 28 March 2006), the Committee found it did have jurisdiction ratione temporis in relation to the investigation into the disappearance of Thomas Sankara, who had been abducted and murdered in 1987, that is to say well before 4 April 1999, when the State became a party to the Optional Protocol. In 1997, within the ten-year limitation period, his wife lodged a complaint with a court against a person or persons unknown for the assassination of Mr Sankara and the falsification of a death certificate. She claimed that no inquiry had been conducted. The Committee, which ultimately found violations of Article 7, on account of the suffering of Mr Sankara's family, and Article 14, on account of the breach of the guarantee of equality in the proceedings, considered that: “6.2 ... a distinction should be drawn between the complaint relating to Mr Thomas Sankara and the complaint concerning Ms Sankara and her children. The Committee considered that the death of Thomas Sankara, which may have involved violations of several articles of the Covenant, occurred on 15 October 1987, hence before the Covenant and the Optional Protocol entered into force for Burkina Faso. This part of the communication was therefore inadmissible ratione temporis. Thomas Sankara's death certificate of 17 January 1988, stating that he died of natural causes - contrary to the facts, which are public knowledge and confirmed by the State party (paras. 4.2 and 4.7) - and the authorities' failure to correct the certificate during the period since that time must be considered in the light of their continuing effect on Ms Sankara and her children.” The Committee went on to find that: “6.3 ... it could not consider violations which occurred before the entry into force of the Optional Protocol for the State party unless those violations continued after the Protocol's entry into force. A continuing violation is to be interpreted as an affirmation, after the entry into force of the Optional Protocol, by act or by clear implication, of previous violations by the State party. The Committee took note of the authors' arguments concerning, first, the failure of the authorities to conduct an inquiry into the death of Thomas Sankara (which was public knowledge) and to prosecute those responsible - allegations which are not in fact challenged by the State party. These constitute violations of their rights and of the obligations of States under the Covenant. Secondly, it was clear that in order to remedy this situation, the authors initiated judicial proceedings on 29 September 1997, i.e. within the limits of the 10-year statute of limitations, and these proceedings continued after the Covenant and the Optional Protocol entered into force for Burkina Faso. Contrary to the arguments of the State party, the Committee considered that the proceedings were prolonged, not because of a procedural error on the part of the authors, but because of a conflict of competence between authorities. Consequently, insofar as, according to the information provided by the authors, the alleged violations resulting from the failure to conduct an inquiry and prosecute the guilty parties have affected them since the entry into force of the Covenant and the Optional Protocol because the proceedings have not concluded to date, the Committee considered that this part of the communication was admissible ratione temporis.” 115. In Serrano-Cruz Sisters v. El Salvador (judgment of 23 November 2004 – Preliminary Objections), which concerned the disappearance of two girls thirteen years before El Salvador recognised the IACHR's jurisdiction, the IACHR decided that: “77. ... the facts that the Commission alleges in relation to the alleged violation of Articles 4 (Right to Life), 5 (Right to Personal Integrity) and 7 (Right to Personal Liberty) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Ernestina and Erlinda Serrano Cruz, are excluded owing to the limitation to the recognition of the Court's jurisdiction established by El Salvador, because they relate to violations which commenced in June 1982, with the alleged 'capture' or 'taking into custody' of the girls by soldiers of the Atlacatl Battalion and their subsequent disappearance, 13 years before El Salvador recognized the contentious jurisdiction of the Inter-American Court. 78. In view of these considerations and pursuant to the provisions of Article 28 of the 1969 Vienna Convention on the Law of Treaties, the Court admits the preliminary objection ratione temporis...” 116. As regards alleged deficiencies in the domestic criminal investigations into the disappearances in this case, the IACHR found that the allegations concerned judicial proceedings and thus independent facts which had taken place after the recognition of the IACHR's jurisdiction. It therefore concluded that it had temporal jurisdiction to deal with these allegations as they constituted specific and autonomous violations concerning the denial of justice that had occurred after the recognition of the IACHR's jurisdiction. It noted, more specifically, that: “80. ... the Commission has submitted to the Court's consideration several facts related to an alleged violation of Articles 8 (Right to a Fair Trial) and 25 (Judicial Protection) of the Convention, in relation to Article 1(1) (Obligation to Respect Rights) thereof, which allegedly took place after recognition of the Court's jurisdiction and which occurred in the context of the domestic criminal investigations to determine what happened to Ernestina and Erlinda Serrano Cruz... ... 84. The Court considers that all the facts that occurred following El Salvador's recognition of the Court's jurisdiction and which refer to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, are not excluded by the limitation established by the State, because they refer to judicial proceedings that constitute independent facts. They commenced after El Salvador had recognized the Court's jurisdiction and can constitute specific and autonomous violations concerning denial of justice occurring after the recognition of the Court's jurisdiction. ... 94. Therefore, the Court decides to reject the preliminary objection ratione temporis in relation to the alleged violations of Articles 8 and 25 of the Convention, in relation to Article 1(1) thereof, and to any other violation whose facts or commencement was subsequent to June 6, 1995, the date on which the State deposited with the OAS General Secretariat the instrument recognizing the Court's jurisdiction.” 117. In Moiwana Village v. Suriname (judgment of 15 June 2005) Suriname made a preliminary objection arguing that the IACHR lacked jurisdiction ratione temporis, since the acts complained of by the Commission and the victims (alleged massacre in 1986 by army forces of forty villagers and the destruction of village buildings, causing the subsequent displacement of the surviving villagers) had occurred one year prior to Suriname's becoming a State Party to the American Convention and its recognition of the IACHR's jurisdiction. The IACHR, referring to Article 28 of the Vienna Convention, noted that: “39. ... [a]ccording to this principle of non-retroactivity, in the case of a continuing or permanent violation, which begins before the acceptance of the Court's jurisdiction and persists even after that acceptance, the Tribunal is competent to examine the actions and omissions occurring subsequent to the recognition of jurisdiction, as well as their respective effects.” 118. Noting that the obligation to investigate arose from the allegations of a massacre and relying on the continuing nature of the alleged failure to investigate the past events, the IACHR found in this case the following: “43. ... [T]he Court distinguishes between alleged violations of the American Convention that are of a continuing nature, and those that occurred after November 12, 1987. With respect to the former, the Tribunal observes that the perpetration of a massacre in 1986 has been alleged; in consequence, an obligation arose for the State to investigate, prosecute and punish the responsible parties. In that regard, Suriname initiated an investigation in 1989. Yet, the State's obligation to investigate can be assessed by the Court starting from the date when Suriname recognized the Tribunal's competence. Thus, an analysis of the State's actions and omissions with respect to that investigation, in light of Articles 8, 25 and 1.1 of the Convention, falls within the jurisdiction of this Court. ... 44. Consequently, the instant preliminary objection is dismissed on the grounds set out above. ... 141. The Court has held above that it lacks jurisdiction over the events of November 29, 1986 in Moiwana Village; nevertheless, the Tribunal does have competence to examine the State's fulfilment of its obligation to investigate those occurrences (supra paragraph 43). The following assessment will establish whether that obligation was carried out pursuant to the standards set forth in Articles 8 and 25 of the American Convention. ... 163. In consideration of the many facets analyzed above, the Court holds that Suriname's seriously deficient investigation into the 1986 attack upon Moiwana Village, its violent obstruction of justice, and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in the American Convention. 164. As a result, the Tribunal declares that the State violated Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of that treaty, to the detriment of the Moiwana community members.”
| 1
|
train
|
001-67420
|
ENG
|
ITA
|
CHAMBER
| 2,004
|
CASE OF APICELLA v. ITALY
| 4
|
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1962 and lives in Pesco Sannita (Benevento). 5. On 17 January 1992 the applicant brought proceedings in the Benevento Magistrate's Court, sitting as an employment tribunal, seeking acknowledgement of her right to be reregistered on the lists of farmers and of her status as farm labourer. That status had been contested by the Farmers' Social Insurance Fund (Servizio Contributi Agricoli Unificati – “the S.C.A.U.”). Her right to a maternity allowance depended on the type of employment contract she had. 6. On 22 February 1992 the magistrate's court set the case down for an initial hearing on 14 March 1994. On that day the magistrate's court requested documents relating to the records drawn up by the labour inspector and ordered them to be filed at a hearing on 8 November 1995. On that date, at the request of counsel for the defendant, the magistrate's court declared the proceedings interrupted on the ground that the S.C.A.U. had been abolished. 7. On 24 November 1995 the applicant lodged an application with the court registry for the proceedings to be resumed against the social-security department (Istituto Nazionale di Previdenza Sociale – 'the I.N.P.S.”). On 25 January 1996 the magistrate's court set the case down for hearing on 21 October 1997. However, that hearing was adjourned by the court of its own motion to 4 March 1999. The next three hearings, held between 8 April 1999 and 18 September 2000, were devoted to hearing evidence from witnesses. On 13 November 2000 the parties made their final submissions. 8. In a judgment of the same date, the text of which was deposited with the registry on 21 November 2000, the magistrate's court dismissed the claim. 9. On 24 April 2001 the applicant lodged an appeal with the Naples Court of Appeal. On 11 February 2001 the President of the Court of Appeal set the appeal down for hearing on 26 January 2004. On that day the Court of Appeal reserved judgment. According to information provided by the applicant on 23 March 2004, the proceedings were still pending on that date. 10. On 3 October 2001 the applicant lodged an appeal with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. She asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained. 11. In a decision of 28 February 2002, the text of which was deposited with the registry on 30 April 2002, the Court of Appeal found that a reasonable time had been exceeded. It awarded the applicant 2,500 euros (EUR), on an equitable basis, in compensation for non-pecuniary damage and EUR 710 for costs and expenses. That decision became final by 15 June 2003 at the latest and was enforced by the authorities between 23 March 2004 and 12 July 2004. 12. In a letter of 7 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application. In the same letter the applicant also informed the Court that she did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
| 1
|
train
|
001-69422
|
ENG
|
SVK
|
CHAMBER
| 2,005
|
CASE OF BZDUSEK v. SLOVAKIA
| 4
|
Violation of Art. 6-1;Violation of Art. 13
|
Nicolas Bratza
|
7. Mr Tomáš Bzdúšek was born in 1926 and lives in Brezová pod Bradlom. Mr Ján Bzdúšek was born in 1952 and lives in Nitra. Mr Svetozár Bzdúšek was born in 1957 and lives in Myjava. 8. By decisions delivered by the Senica District Court on 20 January 1959 and by the Bratislava Regional Court on 13 February 1959 the father of Mr Tomáš Bzdúšek and the grandfather of the two other applicants was convicted of two offences and sentenced to five years’ imprisonment as well as to confiscation of movable property which included, inter alia, gold and silver coins of numismatic value, bank notes and savings books. 9. On 3 October 1991 the Supreme Court of the Slovak Republic quashed, in the context of judicial rehabilitation provided for by the Judicial Rehabilitation Act of 1990, the above decisions of 1959 including all consequential decisions on the ground that the conviction had been unlawful. Subsequently the District Court in Prievidza delivered a judgment, on 30 March 1992, by which it acquitted the accused. 10. On 30 April 1993 the applicants filed an action claiming the restitution of the movable property which had been confiscated from their relative. 11. On 19 January 1994 the Bratislava I District Court, with which the applicants had filed the action, found that it lacked jurisdiction to deal with the case. On 17 May 1994 the Bratislava City Court quashed this decision as being erroneous. 12. On 6 February 1995 the Bratislava I District Court discontinued the proceedings. On 31 May 1995 the Bratislava City Court quashed this decision and instructed the District Court to proceed with the case. 13. On 7 October 1997 the Bratislava I District Court dismissed the action after having taken extensive evidence. The applicants appealed. On 13 May 1998 the Bratislava Regional Court upheld the first instance judgment. 14. In the meantime, on 27 January 1998, the Constitutional Court found, upon a petition submitted by the applicants pursuant to Article 130(3) of the Constitution, that the Bratislava I District Court had violated their constitutional right to a hearing without undue delays. The Constitutional Court held, in particular, that the case was not complex and that the applicants had not contributed to the length of the proceedings by their behaviour. The case had not been proceeded with effectively between 30 April 1993 and 31 May 1995, and undue delays had arisen as a result of the fact that the judge dealing with the case had been changed three times. 15. Article 48(2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 16. Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or a corporation claiming that their rights had been violated. 17. According to its case-law under the above Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48(2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
| 1
|
train
|
001-99109
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,010
|
YILMAZ AND AKMESE v. TURKEY
| 4
|
Inadmissible
|
Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
|
The applicants are Turkish nationals, who were arrested on suspicion of involvement in an illegal organisation. Subsequently, criminal proceedings were brought against them, which are, according to the information in the case files, currently pending before the domestic courts. The information concerning the applications, the dates of the applicants' arrest, bills of indictment, decisions of the domestic courts and the total length of the proceedings, as submitted by the applicants, is detailed in the annexed table.
| 0
|
train
|
001-5701
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,001
|
A.W. AND F.W. v. FINLAND
| 4
|
Inadmissible
|
Georg Ress
|
The applicants are Finnish citizens, born in 1966 and 1954 respectively and resident in Tervajoki. Before the Court they are represented by Mr. Christian Holmsten, a lawyer and member of the Bar practising in Vaasa. The respondent Government are represented by Mr Holger Rotkirch, Director General for Legal Affairs, and Mr Arto Kosonen, Director, both of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are married and the parents of T.E., born in 1989, and S., born in 1991. The applicant mother has a third child, T.T., born in 1986, who also lived with the applicants at the beginning of the events of relevance to the application. On 1 November 1993 the first applicant was apparently informally told by a social welfare official that public care orders regarding the children were being prepared. On 8 November 1993 T.T.’s father was formally heard in respect of the proposed public care of her. At a meeting on 18 November 1993 the applicants were formally notified that the Social Section (sosiaalijaosto, socialsektionen) of the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Vaasa would, on 2 December 1993, consider a proposal that the children should be placed in public care. The applicants opposed the proposal. They allegedly obtained the material which was to form the basis for the proposal only on Monday, 29 November 1993. According to the Government, the material was at the applicants’ disposal in the Social Welfare Office from Friday, 26 November 1993 onwards. The material contained various expert opinions and affidavits and totalled about 100 pages. In their submissions of 30 November 1993 the applicants, represented by their current counsel, opposed the proposed public care, invoking, inter alia, an opinion submitted by Dr P.T., a general practitioner, according to whom the children were normally developed physically. A further opinion of 2 December 1993 was issued by Dr O.N., Acting Head of the Department for Child Diseases at the Central Hospital of Vaasa, who had been examining T.E. during several years. Dr O.N. stated in essence that the delay in T.E.'s mental development was being successfully followed up by various support measures. This opinion was submitted to the members of the Social Section on the same day. Having heard the applicants and the leading social welfare official at its meeting on 2 December 1993, the Social Section placed the children in public care, considering that the applicants were incapable of ensuring their basic care and education, that their home was lacking incentives and that the applicants had shown indifference in regard to the children's overall well-being. The support measures provided by the Board had proved to be insufficient. The children were to be placed in a local children’s home pending their placement in a foster family. According to the care orders, the public care was expected to last until the children had reached the age of majority. The children’s right to maintain regular contact with their parents and with each other would be ensured. They could receive visits in the children’s home during visiting hours. The Social Section relied on section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983). The children were fetched from the applicants' home on 2 December 1993 around 8 p.m. On 14 December 1993 the applicants appealed to the County Administrative Court (lääninoikeus, länsrätten) of Vaasa, requesting an oral hearing for the purpose of hearing Drs P.T. and O.N. as experts concerning the children’s health as well as various other persons as witnesses in regard to the conditions in the applicants' home. The applicants considered it unfair that the care orders had been based on the written reports of various public officials and experts consulted by the social authorities without the applicants’ having been able to question them orally. The applicants conceded that they had had financial problems but contended that they had always provided their children with satisfactory care. In February 1994 the Social Welfare Board responded to the applicants’ appeals and the applicants submitted a rejoinder alleging that the children had expressed a strong wish to return home. On 23 March 1994 the County Administrative Court rejected the appeals, having found an oral hearing unnecessary. The County Administrative Court’s reasoning read in extenso as follows: (translation from Finnish) “According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s development. The open-care assistance has proved to be insufficient and substitute care has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].” The County Administrative Court relied on section 16, subsection 1, of the Child Welfare Act and on sections 16-17 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983). The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that the case be referred back to the County Administrative Court for an oral hearing of experts and witnesses. The applicants again argued that they had only had two working days at their disposal for preparing for the decisive meeting on 2 December 1993. In addition, the preparation of their subsequent appeals had been hampered by the impossibility of having the children, then already removed from the applicants’ home, examined by experts of the applicants’ choosing. On 18 November 1994 the Supreme Administrative Court rejected the applicants' request and appeal as a whole by upholding the lower court’s decision. According to the information available to the Court, T.E. is still staying at a children's home in Vaasa. S. and T.T. are staying in foster families at Jalasjärvi, some 150 kilometres from Vaasa. According to the applicants, they met T.E. in the children’s home once every other month up to 1997 but were allegedly able to meet S. and T.T. only in December 1994 and June 1995. During 1997 the applicants and the children met twice. The relevant legislation is outlined in the Court’s judgment in the case of L. v. Finland (no. 25651/94, 27.4.2000, §§ 53-97). Those provisions of particular relevance to the present case are described below. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). If a child is in imminent danger or otherwise in need of an immediate care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts. The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties. According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once. According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2). According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
| 0
|
train
|
001-58853
|
ENG
|
LTU
|
CHAMBER
| 2,000
|
CASE OF GRAUSLYS v. LITHUANIA
| 3
|
Violation of Art. 5-1 with regard to the intitial period;No violation of Art. 5-1 with regard to the subsequent period;No violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Nicolas Bratza
|
8. The applicant, the commercial director of a private company (“the company”), was suspected of fraud. On 4 October 1995 a criminal case was instituted against him. 9. The applicant was arrested on 25 March 1996. His detention on remand was authorised by a prosecutor on 26 March 1996. 10. On 1 April 1996 the applicant was charged with suppressing documents. On 16 May 1996 the applicant was charged with unlawfully obtaining the property of another. 11. On 24 May 1996, by the authorisation of the Deputy Prosecutor General, the term of the applicant’s detention on remand was extended to 30 July 1996. 12. The Klaipėda District Court extended the term of the applicant’s detention on remand twice: on 24 July 1996 to 25 August 1996 and on 19 August 1996 to 25 September 1996. On 23 September 1996 the Klaipėda Regional Court extended the term of the applicant’s detention on remand to 9 October 1996. 13. The pre-trial investigation in the case was concluded on 27 September 1996. The applicant had access to the case-file from 3 to 31 October 1996, while the other three co-accused were given access from 27 September to 7 November 1996. 14. In a communication of 27 September 1996, the prosecution informed the prison administration that the pre-trial investigation had been concluded and access to the case-file had commenced. 15. On 30 October 1996 the applicant applied to the prosecution for bail, contesting the lawfulness of his detention after 9 October 1996. On 8 November 1996 a prosecutor informed the applicant that there were no reasons to vary the remand. The prosecutor stated inter alia, “the access by the accused and their counsel to the case-file was completed on 7 November 1996. On 8 November 1996 the criminal case was transmitted for the confirmation of the bill of indictment. The validity of the term of the applicant’s detention was not breached”. No remand decision was taken. 16. On 12 November 1996 a prosecutor informed the prison administration that access to the case-file had been completed on 7 November 1996, and that the case had been transmitted to the Klaipėda Chief Regional Prosecutor to confirm the bill of indictment. On the same date a prosecutor informed the prison administration that the bill of indictment had been confirmed, and that the case had been transmitted to the Klaipėda Regional Court. No remand decision was taken. 17. On 19 November 1996 the Klaipėda Regional Court forwarded the case to the Kretinga District Court. No formal decision on the applicant’s detention was taken. On the same date the applicant applied to the Minister of Justice, claiming that his detention had been unlawful since 9 October 1996. 18. On 4 December 1996 the applicant applied to the Kretinga District Court for bail. On 5 December 1996 a judge of the Klaipėda District Court committed the applicant to trial. In his decision the judge also decided that the applicant’s “remand shall remain unchanged”. The decision did not refer to other aspects regarding the lawfulness of the applicant’s detention. The judge also set 13 January 1997 as the date of the first trial hearing. 19. The hearing took place on 13 January 1997. On the same date the applicant again applied for bail. 20. On 15 January 1997 the judge of the Kretinga District Court, in the presence of the applicant’s counsel, ordered further investigations in the case. The judge noted inter alia that the prosecution had alleged that financial damage to the company and its shareholders had been caused by the applicant and the co-accused. However, no victims had been established and questioned. In addition, the company’s audit had not been properly carried out. The judge held that the trial could not continue until these procedural requirements were met. 21. By the same decision the judge also dismissed the applicant’s request for bail and extended the term of his detention on remand for three months. The dangers of the applicant absconding and “obstructing the establishment of the truth” in the case were mentioned as reasons for this decision. The judge did not mention the applicant’s allegations about the unlawfulness of his detention since 9 October 1996. 22. On the same date the applicant appealed to the Klaipėda Regional Court, claiming that he had been unlawfully kept in detention after 9 October 1996. On 20 January 1997 the applicant lodged with the Klaipėda Regional Court a further appeal against the decisions of the Kretinga District Court of 5 December 1996 and 15 January 1997. He stated inter alia that Article 5 of the Convention had been breached to his detriment. 23. On 28 January 1997 the applicant submitted a complaint to the Ombudsman, alleging that the term of his detention had expired on 9 October 1996, and that thereafter the prison administration had kept him in custody unlawfully. 24. On 17 February 1997 the Klaipėda Regional Court held an appeal hearing in the presence of the applicant’s counsel. The Regional Court dismissed the appeal insofar as it concerned “the substance of the decision of the Kretinga District Court of 15 January 1997”, pursuant to Article 372 § 4 of the Code of Criminal Procedure as then in force. No aspects concerning the alleged unlawfulness of the applicant’s detention were mentioned in the appellate decision. The Regional Court nonetheless ordered the applicant’s release on bail, without giving reasons. He was immediately released from prison. 25. On 20 February 1997 the Ombudsman drew the attention of the Minister of Interior and the prison authorities to the fact that from 7 November to 5 December 1996 the applicant had been remanded in custody in breach of Article 5 § 1 (c) of the Convention. 26. On 23 June 1997 the additional investigation was concluded. On 17 July 1997 the case was again transmitted to the Kretinga District Court. On 21 July 1997 a judge of the Kretinga District Court committed the applicant to trial. 27. On 6 October 1997 the judge again decided to order further investigations. He noted that the investigating authorities had breached domestic criminal procedure in its conduct of the pre-trial investigation and the collection of additional evidence. The judge held inter alia that the company’s audit had been defective and that the prosecution had not established or questioned victims in connection with the damage suffered by the company. 28. Upon the prosecution’s appeal against the above decision, on 17 November 1997 the Klaipėda Regional Court quashed the decision of 6 October 1997. The Regional Court held that no breaches of domestic criminal procedure had been specified by the District Court, which might warrant the collection of additional evidence. The appellate court stated inter alia that the District Court could itself establish and summon victims in connection with the company’s losses, without returning the case back to the prosecution for further investigations. 29. On 17 December 1997 a judge of the Kretinga District Court joined the case against the applicant and the three co-accused with a case against another defendant. The judge withdrew from the case on the ground inter alia that he had taken decisions on the applicant’s detention on 5 December 1996 and 15 January 1997. 30. On an unspecified date, jurisdiction was transferred from the Kretinga District Court to the Skuodas District Court. On 2 April 1998 a judge of the Skuodas District Court committed the applicant to trial. On 12 June 1998 the judge adjourned the case until 12 September 1998 and ordered further investigations, particularly on the ground that the company’s audit had been defective. In this respect, the court requested the Ministry of Finance to carry out a fresh audit. 31. On an unspecified date, the applicant’s trial was resumed. To date no first instance judgment has been pronounced. <Translations are given> 32. Relevant provisions of the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija): Article 20 § 3: “A person arrested when committing an offence must, within 48 hours, be brought to court for the purpose of determining, in the presence of the detainee, whether detention is appropriate. If the court does not order the detention of the arrested person, he shall be released immediately.” Article 30 § 1: “A person whose constitutional rights or freedoms are violated shall have the right to apply to court.” 33. Relevant provisions of the previous Code of Criminal Procedure (Baudžiamojo proceso kodeksas): Article 10 (in force until 21 June 1996): “No one shall be arrested save by virtue of a decision of a court, or an order of a judge or the authorisation of a prosecutor … .” Since 21 June 1996 arrest may only be ordered by a court or judge. Article 104 (under the law No. I-551 of 19 July 1994, in force until 21 June 1996): “Detention as a remand measure shall be used only where based on the decision of a court, order of a judge, or the authorisation of a prosecutor in cases where a statutory penalty of at least one year of imprisonment is envisaged … . In cases pertaining to offences provided in Articles … 105 [murder in aggravating circumstances] … of the Criminal Code, detention as a remand measure may be used on the ground of the gravity of the offence alone. … . In deciding whether to authorise the detention, a prosecutor … shall personally hear the suspect or defendant when necessary ... .” Article 104-1 (in force from 21 June 1996 to 24 June 1998): “... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. … After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also permits the court to extend the detention on remand before its expiry. Article 106 § 3 (in force from 21 June 1996 to 24 June 1998): “For the purpose of extending the term of detention on remand [at the stage of pre-trial investigation] a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.” The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings. Article 109-1 (in force from 21 June 1996 to 24 June 1998): “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal. A further appeal shall be determined when examining the extension of the term of the detention on remand.” The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing in the presence of the detainee and his counsel, or only his counsel. Article 226 § 6 (in force until 24 June 1998): “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” Since 24 June 1998 this period is no longer relevant for remand decisions. Article 372 § 4 (in force until 1 January 1999): “Decisions of courts … ordering, varying or revoking a remand measure … cannot be the subject of appeal … .” 34. Other relevant provisions of the present Code of Criminal Procedure: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.” Article 249 § 1: “A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... 11) whether the remand measure has been selected appropriately.” Article 250 § 1: “After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... 2) of the remand measure in respect of the accused ... .” Article 267 § 1: “The defendant has the right to ... 3) submit requests; ... 11) appeal against the judgment and decisions of a court.” Article 277: “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” 35. The law amending and supplementing the Code of Criminal Procedure (Baudžiamojo proceso kodekso pakeitimų ir papildymų įstatymas) of 21 June 1996 stated that detention authorised by a prosecutor prior to 21 June 1996 could thereafter be extended by a court in accordance with the new procedure governing remand in custody. III. LITHUANIAN RESERVATION 36. The Lithuanian reservation to Article 5 § 3 of the Convention was in force until 21 June 1996 and provided as follows: “The provisions of Article 5, paragraph 3, of the Convention shall not affect the operation of Article 104 of the Code of Criminal Procedure of the Republic of Lithuania (amended version No. I-551, July 19 1994) which provides that a decision to detain in custody any persons suspected of having committed a crime may also, by decision of a prosecutor, be so detained. This reservation shall be effective for one year after the Convention comes into force in respect of the Republic of Lithuania.”
| 1
|
train
|
001-111976
|
ENG
|
ESP
|
ADMISSIBILITY
| 2,012
|
MELERO ECHAURI AND OSTIZ MELERO v. SPAIN
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
|
1. The applicants, Ms María Elena Melero Echauri and Ms Elena Ostiz Melero, are Spanish nationals who were born in Pamplona (Navarra) in 1953 and 1972 respectively and live in Pamplona. They are mother and daughter and work as associate lawyers in their law firm in Pamplona. They are represented before the Court by Ms Melero Echauri, the first applicant. 3. On 15 January 2005, as the result of disciplinary and criminal proceedings brought by Pamplona civil judge no. 3 against the first applicant for defamation, the applicant was admonished by the Ruling Board of the Pamplona Law Bar for a minor infraction, of lack of respect to a judge and a fellow lawyer. In fact, the applicant, acting in her capacity as counsel in separation proceedings, had submitted a brief in which she had accused the judge in the case of general malfeasance in favouring a lawyer with whom the judge appeared to be friendly, to the detriment of the rights to defence and to a fair hearing of her clients and of other lawyers’ clients. 4. On 9 November 2006 the first applicant requested the Pamplona judge responsible for the allocation of cases (“the Pamplona judge”) to have the case allocation rules of the courts of Pamplona altered so as to guarantee her clients the right to defence and to a fair hearing. In her view, these rights would be seriously jeopardised if her cases and those of her daughter were allocated to Pamplona civil judge no. 3. 5. On 20 November 2006 the Pamplona judge refused the applicant’s request and invited her to make use, whenever she found it appropriate, of a request for withdrawal. This decision was upheld by the General Council of the Judiciary on 14 March 2007. 6. On 29 January 2007, on the occasion of a civil action against one of her clients, the first applicant submitted a request for withdrawal of Pamplona civil judge no. 3. That request was refused by the judge on 16 February 2007 on the ground that, pursuant to Article 218 of the Organic Law on the Judiciary, in civil, social and adversarial administrative proceedings only the parties and the public prosecutor had standing to request that a judge withdraw from a case. 7. The first applicant introduced an appeal against that decision before the same civil judge no. 3, arguing that the fact that that judge had introduced criminal and disciplinary proceedings against her in the past disqualified the judge from deciding in cases in which the first applicant acted as counsel, and that it was a legal absurdity to request that her clients submit a request for withdrawal since, according to the legislation in force, the request would not be successful, in so far as no enmity could be said to exist, in principle, between the judge and her clients. The appeal was orally dismissed on 5 March 2007, the judge insisting that if there were to be such a request it could only be submitted by the applicant’s client. 8. The applicant introduced an amparo appeal that was declared inadmissible on 2 July 2008 by the Constitutional Court on the ground that the applicant lacked standing. That decision was served on 8 July 2008. 9. Article 24 of the Constitution reads as follows: “1. Everyone has the right to obtain the effective protection of judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he or she go undefended. 2. Likewise, everyone has the right of access to the ordinary courts as predetermined by law; to the defence and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to declare themselves guilty; and to be presumed innocent.” 10. Section 218 of Organic Law 6/1985 of 1st July 1985, on the Judiciary identifies those who have standing to request the withdrawal of a judge. It reads as follows: “The withdrawal of a judge can only be requested: 1. In civil, social and adversarial administrative proceedings by the parties; the public prosecutor shall have also standing to request the withdrawal of a judge in those cases in which, by the character of the rights in dispute, he could or should intervene”. Article 219 of the Organic Law on the Judiciary enumerates the reasons for abstention and withdrawal of judges. The relevant part of Article 219 for the purposes of this case reads as follows: “Grounds for abstention and, if appropriate, for withdrawal are... 7. A close friendship with or a manifest enmity towards any of the parties...”
| 0
|
train
|
001-109104
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,012
|
DJAPARIDZE v. MOLDOVA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi
|
1. The applicant, Mr Malhaz Djaparidze, was a stateless person who had been born in 1964 and until his death on 26 April 2008 lived in Chişinău. The applicant is represented before the Court by Mr V. Ţurcan and Mr A. Beruciaşvili, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. On 30 April 2008 the Registrar was informed of the applicant’s death. On 23 November 2009 the applicant’s son, Mr Gheorghii Djaparidze, informed the Registrar that he wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyers as his representatives. For practical reasons, Mr Malhaz Djaparidze will continue to be referred to in this decision as “the applicant”, although Mr Gheorghii Djaparidze is now to be regarded as having this status (see the Vocaturo v. Italy 24 May 1991, § 2, Series A no. 206-C). 3. The applicant was accused of consuming narcotic drugs while serving a sentence. On 12 July 2007 the Buiucani District Court discontinued the criminal proceedings against him and ordered his immediate release. 4. After leaving the court building the applicant was arrested again by the police. The reason was that he had been found walking in the street without documents and had no permanent abode or means of support. The applicant then gave personal details, including his permanent address in Chişinău, to a police officer. He indicated that he did not have any identity documents, which were all still with the prison administration. 5. The applicant was placed in a centre for homeless people (“the Centre”). His lawyers complained that he had been detained unlawfully. 6. On 17 July 2007 the applicant’s lawyers made a complaint of unlawful detention to the Rîşcani District Court. The court postponed two hearings (on 19 and 24 July 2007) at the request of the applicant’s lawyers, who had asked for documents concerning the reasons for the applicant’s arrest from the prosecution. 7. On 17 July 2007 the applicant signed an authority form for his lawyers to represent him before the Court. 8. On 18 July 2007 it became clear that he was no longer at the Centre. A criminal investigation was opened against two officers, who were accused of taking the applicant out of the Centre during the night of 17-18 July 2007 to a place on the outskirts of Chişinău, from where he had fled. At the same time, the applicant was declared a wanted person. 9. On 1 August 2007, the Rîşcani District Court found that the applicant’s arrest and detention had been unlawful since none of the legal grounds cited by the prosecution applied. The court relied expressly on Articles 5 and 13 of the Convention. That decision was final. 10. On 13 February 2008 the applicant was expelled from Ukraine at the border with Moldova, even though his extradition to Moldova had been refused by the Odessa County Appeal Court on 24 March 2008. On 25 March 2008 he was arrested when crossing the border with Moldova. 11. Following his arrest the applicant was placed in the detention facility of the Operational Services Department of the Ministry of Interior (“the DSO”). On 31 March 2008 his lawyers complained to the Prosecutor General’s Office that the DSO administration had refused to allow him to receive any food or clothes. They noted that he was suffering from hepatitis and required a special diet and that there was a risk of deterioration of his state of health. They asked for their client to be transferred to prison no. 13 so that he could obtain appropriate medical treatment. 12. On 4 April 2008 the applicant’s lawyers complained to the Prosecutor General’s Office, noting the risk to his state of health in the inhuman conditions of detention of the DSO detention facility. On 10 April 2008 the applicant was transferred to prison no. 13 in Chişinău. 13. On 18 April 2008 the applicant’s lawyers asked the authorities at prison no. 13 to inform them of the reasons for placing their client in a solitary cell. On 12 May 2008 they were informed that upon his arrival the applicant had been placed in solitary confinement for fifteen days, in order for him to undergo examinations aimed at establishing the state of his health and for medical treatment to be prescribed if found to be necessary. On 25 April 2008 the applicant was transferred to an ordinary cell. 14. In the morning of 26 April 2008 two detainees who shared the cell with the applicant alerted the prison guards that he was not showing any signs of life. Thereafter the prison doctor pronounced the applicant dead. 15. Between 29 April and 15 July 2008 a medical expert examined the applicant’s body. He found that the cause of death had been cardiac-pulmonary deficiency which had been caused by ischemic cardiopathy and pulmonary fibrocavital tuberculosis. The medical expert also found marks on the cadaver’s back which were interpreted as light injuries caused while the applicant was alive. He was also found to have been under the influence of a minor degree of alcohol intoxication at the time of his death. 16. On 30 April 2008 the applicant’s lawyers informed the Court of their client’s death. 17. On 25 July 2008 a Chişinău Prosecutor’s Office prosecutor decided not to initiate a criminal investigation in the absence of any evidence that a crime had been committed. The prosecutor referred to the statements made by the applicant’s cellmates and the head of the detention block in which he had died. He also cited the findings of the medical and toxicology experts and relied on video recordings, which showed that nobody had entered or left the cell during the night. He noted the presence of marks on the cadaver’s back, without making any comment in that respect. 18. On 11 August 2008 the applicant’s lawyers asked the Prosecutor General’s Office to revoke the decision of 25 July 2008. They mentioned, inter alia, that important questions had not been answered during the preliminary investigation, such as whether their client’s life could have been saved had he been correctly diagnosed and treated in prison no. 13. 19. On 15 September 2008 the Chişinău Prosecutor’s Office replied that the decision of 25 July 2008 had been taken correctly. 20. The applicant’s lawyers challenged the decisions of 25 July and 15 September 2008 before the Centru District Court. 21. On 7 November 2008 the Centru District Court rejected the complaint, on the ground that it had not established that any breaches of fundamental rights had occurred. One of the applicant’s lawyers was present at the hearing. That decision was final. 22. On 23 November 2009 the applicant’s son expressed his wish to continue with the case lodged by his father and raised in essence a complaint under Article 2 concerning the incompletely established circumstances of his father’s death.
| 0
|
train
|
001-22734
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,002
|
ÖZCAN v. TURKEY
| 4
|
Inadmissible
|
Ireneu Cabral Barreto;Mark Villiger
|
The applicant, Mr Ali Özcan, is a Turkish national, who was born in 1959 and lives in Istanbul. He was represented before the Court by Mr Muharrem Turan, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. Before his discharge from the army, the applicant was serving as a specialist doctor at the GATA Military Hospital in Istanbul. Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied access to the military premises on the ground that a photo showing his wife wearing Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed into the military buildings. On 22 April 1996 the applicant was appointed to the İzmir Military Hospital as the chief of the laboratory department. On 28 May 1996 the applicant filed an action with the Supreme Military Administrative Court (Yüksek Askeri İdare Mahkemesi). He requested the court to annul his appointment to the İzmir Military Hospital. On 18 June 1996 the Supreme Military Administrative Court decided to annul the applicant’s appointment as an interim measure (yürütmeyi durudurma kararı). Within two months from this decision, the applicant was again appointed to the İzmir Military Hospital. The applicant appealed. On 23 December 1997 the Supreme Military Administrative Court again decided to annul the applicant’s appointment as an interim measure. In May 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926. The Government submit the following in the light of the intelligence reports concerning the applicant: The applicant was a member of the Fethullah Gülen’s Nurcu sect. He was involved in disseminating the ideology of the sect and made hatred speeches. He established contacts with a certain A.A. who was discharged from the army. He attended meetings organised by persons who adopted the same extreme religious ideology. He acted discriminatorily in favour of soldiers who adopted the same ideology. The applicant had an antisocial character and his wife carried Islamic scarf. He refused to participate in social gatherings where alcohol was served. He avoided watching TV and did not allow his family members to do so. A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion. The relevant provisions of the Constitution are as follows: “None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.” “Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.” “All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ...” Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control. Section 22 (c) of the Military Legal Service Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions.” Section 50 (c) of the Military Personnel Act provides: “Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.” Section 94 (b) of the Military Personnel Act provides: “(b) Discharge from the army for the acts of insubordination and immoral conduct: Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.” Article 99 of the Regulations on assessment of officers and non-commissioned officers provides: “Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”
| 0
|
train
|
001-81338
|
ENG
|
DEU
|
CHAMBER
| 2,007
|
CASE OF KAYA v. GERMANY
| 3
|
No violation of Art. 8
|
Christos Rozakis
|
6. The applicant was born in 1978 and lives in Istanbul in Turkey. 7. The applicant was born in Mannheim in Germany, where he lived with his parents and his younger sister and attended school. On an unspecified date the applicant's brother died in an accident. His parents have been lawfully resident in Germany for more than thirty years. According to the applicant's submissions, he visited Turkey only two or three times during his holidays. 8. On 19 May 1994 the competent authorities granted the applicant a permanent residence permit. 9. On 31 January 1996 the Mannheim public prosecutor discontinued juvenile-delinquency proceedings brought against the applicant for grievous bodily harm. 10. In 1998 the applicant completed his apprenticeship as a car mechanic. In July 1998 he worked for three or four weeks in Turkey. 11. On 27 January 1999 the applicant was arrested and subsequently detained on remand. 12. On 8 September 1999 the Mannheim District Court (Amtsgericht) convicted the applicant of two counts of attempted aggravated trafficking in human beings (versuchter schwerer Menschenhandel), several counts of battery and aggravated battery (schwere gefährliche Körperverletzung), procurement (Zuhälterei), purchasing illegal drugs (Erwerb von Betäubungsmitteln), two counts of drunken driving and two counts of insulting behaviour and sentenced him to three years and four months' imprisonment. The District Court found that between June 1998 and January 1999 the applicant had forced his former partner to surrender the main part of her earnings acquired through prostitution. To that end, he had used physical violence, on one occasion kicking the woman's face with his shod foot. In January 1999 the applicant – together with two accomplices, including his former partner – had attempted on two occasions to force another woman into prostitution. The applicant and his male accomplice had intended to use the earnings to finance their upkeep and their drug consumption. 13. To that end, the applicant and his accomplices had first locked the woman in. Later on, the applicant had encouraged his former partner to beat the woman and her sister, who had aided her resistance. In the applicant's presence and with his explicit consent, both women had been punched at least ten times in their face. 14. The applicant was also found guilty of having purchased five grams of cocaine on one occasion, together with one accomplice, and of having insulted several police officers. In view of the fact that the applicant had been twenty years old when committing those offences and that there was no indication of retarded development, the District Court did not apply juvenile but adult criminal law. 15. When assessing the applicant's sentence, the District Court treated as mitigating factors the fact that the applicant had no previous convictions and that he had confessed to the offences during the main proceedings. It emphasised, however, that the applicant had acted as the driving force in carrying out the crimes committed jointly against the second victim. The District Court further noted that the applicant had acted with “incredible brutality” (unglaubliche Brutalität) towards his second victim, after having already exploited his former partner. The applicant had taken around 48,000 German marks from the latter without leaving her the necessary resources to cater to her own and her child's needs, his intention being to use the money for alcohol, drugs and other purposes of his own. The District Court put special emphasis on the exceptional brutality with which the applicant had exploited his former partner. Lastly, it considered the degree of disdain he had shown towards the police officers. Only the applicant's confession had prevented the District Court from imposing a prison sentence of more than four years, which would have meant relinquishing the examination of the case in favour of the Regional Court. 16. On 23 November 1999 the Karlsruhe Regional Government (Regierungspräsidium) ordered the applicant's expulsion to Turkey. It was announced that he would be deported on his release from prison. 17. Although the applicant was born in Germany and possessed a valid residence permit, the Regional Government considered that his conviction for several serious offences made it necessary to expel him under section 47(1) and (3) and section 48(1) of the Aliens Act (Ausländergesetz – see “Relevant domestic law” below) for serious reasons relating to public safety. Regard being had to the reasons given for the applicant's criminal conviction, his expulsion was necessary in the interest of general deterrence (Generalprävention). 18. The Regional Government also considered the applicant's expulsion justified in this particular case because there was a high risk that he would continue to pose a serious threat to public safety. The seriousness of the offences committed by the applicant demonstrated his high criminal potential and his violent disposition. His criminal offences showed that he was not willing to respect the rights and dignity of his fellow human beings. These factors led to a serious danger of recidivism (erhebliche Wiederholungsgefahr). 19. The Regional Government further found that the applicant's expulsion was proportionate and complied with Article 8 § 2 of the Convention. The applicant was a single adult and could be reasonably expected to live in Turkey. He had not submitted any evidence that his parents depended on his support. His parents would be in a position to maintain contact with him by way of visits and exchanging letters. 20. On 3 January 2000 the applicant applied to the Karlsruhe Administrative Court (Verwaltungsgericht) for judicial review of the expulsion order. He stated, inter alia, that his parents – especially his mother, but also, to a lesser degree, his father – were suffering from serious depression caused by the earlier loss of their other son. The applicant's current situation had aggravated their condition, obliging them to seek medical treatment. His deportation might cause his mother to suffer a complete psychological breakdown. He was, moreover, ready to undergo social training and to come to terms with his former alcohol abuse. With respect to his prospects in Turkey, the applicant alleged that he spoke only colloquial Turkish and had but limited writing skills in that language. 21. In a judgment of 24 February 2000 the Administrative Court rejected the applicant's motion. It concurred with the reasoning set out in the expulsion order to the effect that there were sufficient indications that the applicant would continue to pose a danger to public order and safety. The alleged hardships suffered by the applicant's parents did not justify a different assessment of the facts. 22. The applicant subsequently applied for leave to appeal. In a letter of 10 January 2001 he submitted, inter alia, that he had been born in Germany, where he had gone to school and received vocational training. His whole family lived in Germany. He further submitted that he did not have any connection with Turkey and that he had poor knowledge of the Turkish language. His expulsion would lead to the destruction of his family. 23. On 7 March 2001 the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) refused the applicant leave to appeal. It found, firstly, that the applicant's submissions were not capable of raising serious doubts as to the correctness of the Administrative Court's judgment. Furthermore, he had not established that an appeal would be justified on the ground of the legal complexity of the subject matter. It was obvious that the interference with the applicant's right to respect for his private and family life, as guaranteed by Article 8 of the Convention, was justified under paragraph 2 of that Article, regard being had in particular to the serious danger of recidivism. 24. On 5 April 2001 the applicant was deported from prison to Turkey. The remaining third of his prison sentence was suspended in view of his deportation. 25. On 7 April 2001 the applicant lodged a constitutional complaint. On 12 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's complaint for adjudication. That decision was served on the applicant on 21 February 2002. 26. On 20 May 2002 the applicant married a German national of Turkish origin, who lives in Germany. On 28 December 2003 a child was born to the couple. 27. On 16 September 2002 the applicant requested to have a time-limit placed on his exclusion order. On 19 July 2004 the Karlsruhe Regional Government limited the period of validity of the applicant's exclusion order until 5 October 2006, i. e. five years from the date of his deportation. The limitation was subject to the condition that the applicant was to submit evidence that he had not committed any further criminal offences and that he was still married to his German wife, that he was to submit a hair analysis proving that he did not consume drugs and that he was to reimburse the expenses incurred in connection with his deportation. 28. On 11 April 2006 the Karlsruhe Administrative Court rejected the applicant's application for judicial review aimed at further shortening the time-limit set to his exclusion order. 29. By the end of February 2007, the applicant was still residing in Turkey. 30. The rights of entry and residence for foreigners were governed until 31 December 2004 by the Aliens Act (Ausländergesetz) and from 1 January 2005 by the Residency Act (Aufenthaltsgesetz). 31. By section 47(1), point 1, of the Aliens Act, a foreigner is to be expelled where he or she has been sentenced to a minimum of three years' imprisonment for having wilfully committed one or more criminal offences. 32. If a foreigner was born in Germany and is in possession of a permanent residence permit, he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion (section 48(1)). Generally, this will be the case where section 47(1) applies (Regelausweisung). 33. Pursuant to section 8(2), an alien who has been expelled is not permitted to re-enter German territory. This effect can, as a rule (in der Regel), be limited in time upon application. A similar provision is contained in section 11 of the Residency Act. 34. According to section 44 (1) no.1 of the Aliens Act and section 51 (1) no. 5 of the Residency Act, an alien's residence permit expires on issue of an expulsion order against him. 35. Section 85 of the Aliens Act, as in force from 1 July 1993 until 31 December 1999, provided as follows: “(1) An alien who applies for naturalisation between the age of 16 and 23 shall be naturalised provided that he or she 1. loses or relinquishes his or her former nationality, 2. has been legally residing in Germany for eight years, 3. has attended a school for six years, including at least four years of attendance at a school providing general education, and 4. has not been convicted of a criminal offence. (2) There shall be no entitlement to naturalisation if the alien does not possess a residence permit. Naturalisation may be denied if there is a ground for expulsion.” 36. Section 27 of the Residency Act provides that a residence permit is to be granted for reasons of family reunion. By section 28, a residence permit is to be granted to a German national's spouse or minor child, or to the parent of a minor German national in order to exercise parental authority.
| 0
|
train
|
001-94752
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF ÖZCAN ÇOLAK v. TURKEY
| 3
|
Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
|
4. The applicant was born in 1974 and lives in Tekirdağ. 5. On 5 November 1999, at around 10 a.m., the applicant was arrested and taken into custody in Tekirdağ on suspicion of membership of an illegal armed organisation, namely the MLKP (Marxist-Leninist Communist Party). 6. On the same day, at around 2 p.m., the applicant was examined by a doctor who found no signs of ill-treatment on his body. 7. On the same day, at 2.10 p.m., the applicant was handed over to police officers at the Erzincan Security Headquarters and transferred to Erzincan by car. 8. On 6 November and 7 November 1999 the applicant took part in two reconstructions of events in the mountains in order to show where he had buried guns. 9. On 7 November 1999 the applicant was questioned by two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters, where he gave a detailed account of the activities he had taken part in within the MLKP. 10. On an unspecified date the applicant signed a pre-printed document which indicated, inter alia, that he had the right to remain silent. 11. On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body. 12. On the same day the applicant was brought before the Erzincan Magistrates' Court where, in the presence of his lawyer appointed by the Bar, he submitted that he was unfit for questioning because he had been subjected to ill-treatment in police custody. The applicant requested to be transferred to a hospital for a medical examination. The judge noted a purple bruise and redness on the applicant's left eye and that he had difficulty in standing upright and speaking, and ordered him to be transferred to the Forensic Medicine Institute for an examination. On the same day, the court remanded the applicant in custody. 13. On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body. 14. On 12 November 1999 the applicant asked to be released. In his request he maintained that he had been ill-treated both by the police officers at the Tekirdağ Security Headquarters and the Erzincan Security Headquarters. He gave details as to the form of the treatment, namely beatings, hanging, and squeezing of the genital organs, as well as when they had occurred. The applicant's objection to his remand in custody was dismissed by the Erzincan Magistrates' Court on the same day. 15. In the meantime, on 10 November 1999, the applicant requested to be examined by a doctor at the prison clinic. 16. On the same day, at 5.35 p.m., the applicant was examined by the prison doctor, who noted that he had under the left eye a fading light green line of about 1 to 3cm which looked like either a bruise or a hyper pigmentation. He reckoned that it dated from seven to ten days previously. The doctor did not note any other signs of beating or violence. 17. An investigation into the alleged ill-treatment was instigated by the Erzincan public prosecutor. 18. On 28 November 1999 the prosecutor heard evidence from the applicant, who gave details as to where, when and what forms of illtreatment he had been subjected to. In particular, he claimed that his eye injury had resulted from blows he had received from the driver of the car when he was being transferred to Erzincan. He further repeated that he had been tortured during interrogation, both in Tekirdağ and in Erzincan. 19. On 22 November 1999 the public prosecutor heard evidence from the doctors at Erzincan State University who had examined the applicant. They both affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant. 20. On 2 December 1999 the prosecutor heard Mr Y.T., one of the accused arrested and detained at the same time as the applicant. He submitted that since he had been blindfolded the whole time he had not seen anyone ill-treating the applicant. He maintained that he had not been ill-treated by police officers and that he had not heard any indicative noises. 21. On 21 December 1999 the prosecutor heard evidence from an accused police officer D.A. He submitted that he had questioned the applicant on 7 November 1999 and that at that time the applicant had had a fading bruise under his left eye which appeared to be a few days old. He did not know how it had happened but the applicant had not been ill-treated by him, whether or not with someone else present. 22. On 22 December another police officer was heard who denied the allegations of ill-treatment and claimed that the applicant's eye injury might be a swelling due to the twenty-five hours' travelling, lengthy questioning and two trips to the mountains for site visits. 23. On 18 January 2000 the prosecutor heard Mr E.Ç., the doctor who had examined the applicant in prison. The doctor affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant apart from the light green area, which could be seen only if looked at carefully, under his eyes. In this connection, he submitted that he did not think that this was the result of ill-treatment since the area was not large. He considered that it could have been the result of lack of sleep or a local infection. 24. On 21 February 2000 the prosecutor heard Mr I.K., one of the accused arrested and detained at the same time as the applicant. He also submitted, inter alia, that since he had been blindfolded he had not seen anyone illtreating the applicant. He maintained that he had not heard any noise indicating ill-treatment. However, he stated that, since he did not know where the applicant had been held, he could not be sure if he could have heard something in any case. 25. On 24 March 2000 the Erzincan public prosecutor gave a decision of non-prosecution concerning the two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters on account of lack of evidence. In his decision, the prosecutor took particular note of the testimony of the doctors and the other suspects who had been detained at the same time as the applicant on the same grounds. 26. In the meantime, on 13 December 1999, the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, accusing him of membership of the illegal armed organisation MLKP and of throwing a Molotov cocktail in a public place. The charges were brought under Articles 168 § 2 and 264 §§ 6 and 8 of the Criminal Code. 27. On 17 January 2000 the “trio protocol”, prepared jointly by the ministries of Justice, Health and Interior to introduce security measures on the access of lawyers to prisons, came into force. The Turkish Bar Association, considering such measures to be, inter alia, in breach of defence rights, gave a decision indicating to lawyers not to go into prisons while such measures remained in place. 28. In the meantime, on 27 December 1999 the criminal proceedings against the applicant commenced before the Istanbul State Security Court. In the course of the trial the applicant repeatedly denied any involvement with the MLKP and alleged that he had been tortured and forced to make self-incriminating confessions during his police interrogations. He rejected the findings of the medical reports included in the case file. The applicant also submitted that he had encountered difficulties in having access to his lawyer due to the stringent measures introduced by the “trio protocol”. Before the court the applicant's lawyer further maintained that, apart from one person, all other suspects who had given statements against the applicant had been acquitted before other courts. 29. On 4 September 2002 the Istanbul State Security Court found the applicant guilty of membership of an illegal armed organisation and sentenced him to twelve years and six months' imprisonment. In so doing, they took into account the evidence in the case file, including the applicant's statements given in police custody, the verbatim records of the reconstruction of the events and the statements of other suspects or convicts given to the police or another court. In particular, the court considered that, in the absence of any indication of ill-treatment noted in the medical report, the applicant's statements given to the police were sincere and truthful. 30. On 4 February 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. The applicant's request for a rectification of this decision was dismissed by the principal public prosecutor at the Court of Cassation on 20 March 2003. 31. Following the adoption of the new Criminal Code, the execution of the applicant's sentence was suspended by the Erzincan Assize Court on 22 October 2004. He was released from prison. 32. On 10 April 2006 by an additional judgment the Erzincan Assize Court reduced the applicant's original sentence to six years and three months' imprisonment. This decision became final on 10 May 2006.
| 1
|
train
|
001-61757
|
ENG
|
MDA
|
CHAMBER
| 2,004
|
CASE OF PRODAN v. MOLDOVA
| 1
|
Preliminary objections dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Pecuniary damage - financial award;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
10. The applicant was born in 1924 and lives in Chişinău. 11. In June 1946 the Soviet authorities nationalised the applicant's parents' house. In 1949 her parents were deported to Siberia. 12. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim their confiscated or nationalised property. 13. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which she sought the restitution of her parents' house. At the material time the disputed house consisted of six apartments: nos. 3, 6, 7, 8, 12 and 13. Since apartments nos. 3, 6, 7, 8 and 13 had been purchased by their former tenants, the applicant sought to declare null and void the contracts by which they had been purchased from the State. She also sought the eviction of all the occupants of the house. 14. On 14 March 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which apartments nos. 3, 6, 7, 8 and 13 had been sold to their tenants. The court further ordered the Municipal Council to evict all the occupants, including those of apartment no. 12, and indicated that the Municipal Council was to provide all the tenants with alternative accommodation. 15. The Municipal Council and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 17 October 1997 the Chişinău Regional Court allowed the appeal and quashed the judgment of the Centru District Court. 16. The applicant lodged an appeal in cassation against the judgment of the Chişinău Regional Court. On 31 March 1998 the Court of Appeal (Curtea de Apel) rejected the appeal in cassation and upheld the judgment of the Chişinău Regional Court. 17. Following a request by the applicant, the Procurator General's Office applied for annulment of the judgments of the Chişinău Regional Court and the Court of Appeal with the Supreme Court of Justice (Curtea Supremă de Justiţie). 18. On 19 August 1998 the Supreme Court of Justice quashed the judgments of the Chişinău Regional Court and of the Court of Appeal, and upheld the judgment of the Centru District Court of 14 March 1997 on the ground that both the Chişinău Regional Court and the Court of Appeal had failed to observe the provisions of Law no. 1225-XII of 8 December 1992 (see paragraph 30 below). 19. On an unspecified date in 1998, after having obtained the enforcement warrant, the applicant asked the Municipal Council to execute the judgment of 14 March 1997. In a letter of 14 January 1999, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartments for the evicted tenants, it could not execute the judgment. 20. In 1999 the applicant lodged a request with the Chişinău Land Register (Organul Cadastral Teritorial Chişinău) to issue her a certificate of ownership for the disputed house. In a letter of 15 September 1999, the Land Register informed the applicant that it would issue the ownership title only on the basis of an “act of delivery and receipt of the house” (act de predare-primire) issued by the Municipal Council. 21. In October 1999 the applicant lodged an action with the Centru District Court against the Municipal Council seeking damages for the delay in enforcing the judgment of 14 March 1997. On 17 November 1999 the Centru District Court rejected the action as unfounded. The applicant did not lodge an appeal against that judgment and it became final. 22. In 2000 the applicant lodged an action with the Centru District Court seeking a partial change in the manner in which the enforcement of the judgment of 14 March 1997 was to be carried out. In particular, she claimed money from the Municipal Council in lieu of restitution of apartments nos. 3, 6, 7, 12 and 13. On 7 February 2000 the Centru District Court ordered that a valuation of the apartments be carried out by the experts of the Chişinău Land Register. Following a request from the applicant, on 24 February 2000 the Centru District Court ordered that the valuation be carried out by independent real estate experts. 23. On 3 October 2000 the Centru District Court decided partially to change the manner of enforcement of the judgment of 14 March 1997 and ordered the Municipal Council to pay the applicant 488,274 Moldovan Lei (MDL), the market value of apartments nos. 3, 6, 7, 12 and 13. 24. The Municipal Council lodged an appeal with the Chişinău Regional Court against the above judgment. On 10 January 2001 the Chişinău Regional Court rejected the appeal and upheld the judgment of the Centru District Court of 3 October 2000. 25. In 2001 the applicant asked the Housing Division of the Municipal Council to execute the judgment of 14 March 1997 in so far as it concerned the eviction of the occupants of apartment no. 8. In a letter of 26 March 2001, the Municipal Council informed the applicant that due to a lack of funds for the construction of apartment buildings and available alternative accommodation for the evicted tenants, it could not enforce the judgment of 14 March 1997. 26. On 10 April 2001 the Centru District Court dismissed the Municipal Council's request seeking to stay the enforcement of the judgment of the District Court of 3 October 2000. On 19 June 2001 the Chişinău Regional Court, in its final judgment, rejected the Deputy Mayor's appeal against the above judgment. 27. Following a request by the Municipal Council, the Procurator General's Office applied to the Supreme Court of Justice for annulment of the judgments of the Centru District Court of 3 October 2000 and the Chişinău Regional Court of 10 January 2001. 28. On 12 September 2001 the Supreme Court of Justice dismissed the Procurator General's request for annulment. 29. On an unspecified date the applicant lodged a fresh request with the Municipal Council for the enforcement of the judgments of 14 March 1997 and 3 October 2000. In a letter of 23 October 2001, the Municipal Council informed the applicant that due to a lack of funds and alternative accommodation for the occupants of apartment no. 8, it could not enforce the judgment of 14 March 1997. As regards the enforcement of the judgment of 3 October 2000, the Municipal Council replied that the money would be paid after other court orders had been paid. 30. On 20 November 2002 the Municipal Council paid the applicant MDL 488,274 (the equivalent of EUR 29,238 at the time) in accordance with the judgment of 3 October 2000. The judgment of 14 March 1997 in respect of the eviction of the tenants from apartment no. 8 remained un-enforced. 31. The relevant provisions of Law no. 1225-XII of 8 December 1992, as amended on 23 November 1994, read as follows: “Article 12. Restitution of property to persons who were subjects of repression (1) Any citizen of the Republic of Moldova, who has been the subject of political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. (...) (5) Any act of sale-purchase or other form of transfer of houses, buildings or other constructions and goods confiscated, nationalised or taken away from a person who was the victim of repression, concluded after his rehabilitation, can be declared null through the courts following a request lodged by the victim of repression or his heirs.” In 1998 a new paragraph was added to the above Article by virtue of Law No. 84-XIV of 8 July 1998, which reads as follows: “(6) Any person to be evicted from a restituted house shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.” Article 426 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, reads as follows: “The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings. (...)” Article 478 of the Civil Code, in force between 26 December 1964 and 12 June 2003, reads as follows: “Damage caused to a natural or legal person by the illegal actions of the criminal investigation organs, prosecution or the courts, shall be entirely repaired by the State, in the manner prescribed by law, regardless of the fault of any public servant from the criminal investigation organs, prosecution or the courts.” On 12 June 2003 a new Civil Code entered into force. Article 1404 of the Civil Code reads as follows: “(1) Damage caused by an unlawful administrative decision or as a result of a failure to act upon a request within a statutory time limit by a public authority or by a public official shall be compensated by the public authority (...). (2) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph 1 of the present Article. (...)”
| 1
|
train
|
001-120062
|
ENG
|
POL
|
CHAMBER
| 2,013
|
CASE OF KOSTECKI v. POLAND
| 4
|
No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-d - Examination of witnesses)
|
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
“...the witness in question is abroad, his statements [made during the investigation] have been read out and attempts to establish his current address are immaterial for the outcome of the proceedings.” “With regard to the first charge, i.e. trafficking in drugs, it is first of all the testimonies of persons who were directly involved in the [alleged] criminal activities and who described them in detail, which persuade the court of R. Kostecki’s guilt. It concerns primarily [testimonies] of Ł.K., brothers D.B. and Ł.B. as well as K.M. These witnesses (...) in the course of the proceedings on a few occasions explained in detail their past, indicating persons with whom they had traded in drugs. They indicated not only the names or nicknames of the persons who had sold them drugs, but also indicated their buyers. They also indicated the quantity of drugs sold and their price. What is most important, they described in unison the role of R. Kostecki in the enterprise. It transpires from the testimonies of D.B. and Ł.B. that the defendant [the applicant] proposed to cooperate with them in distributing drugs. They were to sell drugs supplied by Rafał Kostecki and then to pay him back. (...) Ł.K. described cooperation with the defendant in a similar manner. (...) K.M. also made statements incriminating the applicant. (...) It is true that in the course of the [separate] trial in a case before the Białystok Regional Court III K 144/04 K.M. attempted to change his statements and argued that Rafał Kostecki had nothing to do with drugs; however, it was difficult to consider these statements convincing in the light of the earlier coherent and detailed depositions.” “The assessment of the credibility of those testimonies is certainly not affected by the fact that Ł.K. and K.M. could not have been heard directly before the court. These witnesses do not live at their places of residence and the court had good reason to disclose the testimonies of these witnesses in accordance with Article 391 § 1 of the Code of Criminal Procedure.” Ł.K. However, since Ł.K. was abroad at the material time (a request to hear this witness by means of international judicial assistance was dismissed by the decision of 15 September 2006) the court had the right to read out his statements made in the investigation stage of the proceedings. ... The first-instance court correctly dismissed the request to hear other witnesses proposed by the defendant, including those indicated in his pleading of 12 October 2006 (...). The circumstances on which they were to testify would have been irrelevant for the determination of the case, in particular in the light of other items of evidence... The first-instance court did not infringe the principle of directness [pursuant to which all evidence should normally be produced at a public hearing] and the applicant’s right to defence. (...) In any event, M.K., as well as the above-mentioned Ł.K., were abroad. While, K.M. [also] referred to in the defendant’s appeal was beyond the reach of the police. (...) There can be no agreement with the appellants who allege that the first-instance court determined the quantity (and the value) of drugs in an arbitrary manner. On the contrary – as it transpires from the written reasoning of the impugned judgment – the court’s findings in this respect result from detailed (in so far as this is possible in this type of cases) [analysis of] witnesses’ testimonies given – understandably, in particular in the circumstances of the present case – at the initial stage of the criminal proceedings, and in particular the testimonies of D.B. and Ł.B. (...) Significantly, as it transpires from the reasoning of the impugned judgment, the first-instance court took into account the minimum quantity and value [of drugs]. Therefore, it did not infringe Article 5 § 2 of the Code of Criminal Procedure (the in dubio pro reo principle).” “As regards the complaints of an alleged violation of criminal procedure as a result of the trial court’s refusal to hear thirteen witnesses and its reading out of the statements given by Ł.K. before the prosecutor, these are in fact directed against the trial court’s judgment and it is obvious that, in a cassation appeal, only the judgment of the second-instance court may be challenged. The above complaints have already been raised in appeals and have been properly dismissed as ill-founded by the appellate court.” “The time-limit is respected if, before its expiry, a letter was handed over (...) in case of a person deprived of his or her liberty, to the administration of the respective detention facility.” 42. Article 391 of the Code provides as follows: “1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him by virtue of Article 333 § 2 [namely, because upon lodging the bill of indictment the prosecution asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] were made during the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law. 2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the records of evidence that a witness has given when heard as an accused may also be read out.” 43. Section 56(1) of the Drug Addiction (Combating) Act 2005 (Ottawa z 29 lipca 2005 r. o przeciwdziałaniu narkomanii) provides as follows: “Whoever markets intoxicating or psychoactive substances or poppy straw or participates in the selling thereof shall be subject to a fine and imprisonment for a term of between six months and eight years.” 44. Section 56(3) of the above-mentioned Act provides as follows: “If the subject of the offence referred to in subsection 1 is a significant quantity of intoxicating or psychoactive substances or poppy straw, the perpetrator shall be subject to a fine and imprisonment for up to ten years.”
| 0
|
train
|
001-75688
|
ENG
|
ROU
|
CHAMBER
| 2,006
|
CASE OF LUPSA v. ROMANIA
| 1
|
Violation of Art. 8;Violation of P7-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch
|
4. The applicant was born in Yugoslavia in 1965 and currently lives in Belgrade. 5. In 1989 the applicant, a Yugoslavian citizen, came to Romania and settled there. He lived in Romania for fourteen years and, in 1993, set up a Romanian commercial company whose main activity was roasting and marketing coffee. He also learnt Romanian and cohabited with a Romanian national from 1994. 6. On 2 October 2002 the applicant’s girlfriend, who was visiting him in Yugoslavia, gave birth to a child. A few days later the applicant, his girlfriend and the baby returned to Romania. 7. On 6 August 2003 the applicant, who had been abroad, came back to Romania unimpeded by the border police. The next day, however, border police officers came to his home and deported him. 8. On 12 August 2003 the applicant’s lawyer lodged an application with the Bucharest Court of Appeal against the Aliens Authority and the public prosecutor’s office at the Bucharest Court of Appeal for judicial review of the deportation order against the applicant. 9. She submitted that she had not been served with any document declaring the applicant’s presence in Romanian territory to be undesirable. She added that the applicant had been living in Romania since 1989, had been awarded a medal for his role in the anti-communist revolt of 1989, had set up a commercial company, was supporting his family and had not in any way been a danger to national security. 10. The only hearing before the Bucharest Court of Appeal was held on 18 August 2003. The representative of the Aliens Authority provided the applicant’s lawyer with a copy of an order of 28 May 2003 of the public prosecutor’s office at the Bucharest Court of Appeal in which, at the request of the Romanian Intelligence Service (Serviciul Român de Informaţii) and in accordance with Government Emergency Ordinance no. 194/2002 on the rules governing aliens in Romania, the applicant had been declared an “undesirable person” and banned from Romania for ten years on the ground that there was “sufficient and serious intelligence that he was engaged in activities capable of endangering national security”. The last paragraph of the order stated that it should be served on the applicant and enforced by the Aliens Authority in accordance with section 81 of Government Emergency Ordinance no. 194/2002. 11. According to the documents filed in the proceedings by the representative of the Aliens Authority, the Ministry of the Interior had informed the Romanian Intelligence Service, the Ministry of Foreign Affairs and the border police on 2 and 11 June 2003 that the applicant had been banned from entering the country. 12. The applicant’s lawyer requested an adjournment in order to send the applicant a copy of the order of the public prosecutor’s office and take his instructions. 13. Although the representative of the public prosecutor’s office supported that request on the ground that it had not been established that the obligation to serve the order on the applicant had been complied with, the Court of Appeal decided to go ahead with the examination of the case. Considering that the evidence already adduced was sufficient, it also dismissed a further request by the applicant’s lawyer for an adjournment in order to produce documents in support of her application. 14. Ruling on the merits, the Court of Appeal rejected the application as follows: “After analysing the evidence in the case and the parties’ arguments, the Court rejects as ill-founded the application against the public prosecutor’s order ... and the deportation order, considering that, in accordance with sections 83 and 84(2) of Government Emergency Ordinance no. 194/2002, the measure ordered is justified and lawful ... With regard to the reasoning of the impugned administrative order, [the Court] notes that it satisfies the substantive and formal conditions required by the special provisions, power to authorise residence on the State’s territory being exercised by the appropriate State authorities in compliance with the relevant provisions and with the principle of proportionality between the restriction of fundamental rights and the situation giving rise to that restriction. Accordingly, the deportation was lawfully ordered. It is alleged that the measure taken pursuant to the public prosecutor’s order of 28 May 2003 was communicated to the border police, the Ministry of Foreign Affairs and the Romanian Intelligence Service on 2 and 11 June 2003, whereas in the operative part of the order it was stated that, pursuant to section 81 of Government Emergency Ordinance no. 194/2002, the Aliens Authority had to notify and enforce it; the details of the alien’s passport and residence being mentioned in the preamble to the order. Accordingly, the Court rejects as ill-founded, on every ground, the application lodged against the order of the public prosecutor’s office at the Bucharest Court of Appeal.” 15. In accordance with section 85(1) of Government Emergency Ordinance no. 194/2002, that judgment was final. 16. Subsequently, in 2003 and 2004, the applicant’s girlfriend, who does not speak Serbian, and their son, who is a national of Romania and of Serbia and Montenegro, went to Serbia and Montenegro on a number of occasions, staying for periods ranging from a few days to several months. “(1) The Aliens Authority, or its regional offices, shall inform the alien concerned that he must leave Romanian territory. (2) The order to leave the territory shall be drawn up in two copies, one in Romanian and the other in an international language. (3) If the alien is present on the territory, he shall be served with a copy which he shall sign... (4) If the alien is absent, notification shall be: (a) by mail, by way of letter sent to his address, if known, requiring acknowledgment of receipt; or (b) displayed at the head office of the Aliens Authority if his address is unknown.” “(1) A declaration that an alien is undesirable is an administrative measure taken against a person who has previously engaged, is currently engaged, or in respect of whom there is sufficient intelligence that he has the intention of engaging in activities capable of endangering national security or public order. (2) On a proposal of the Aliens Authority or another institution having appropriate powers in the sphere of public order and national security and being in possession of sufficient intelligence of the kind referred to above, the measure envisaged in the preceding sub-section shall be taken by a prosecutor designated from among the members of the public prosecutor’s office at the Bucharest Court of Appeal. (3) After receiving the proposal, the prosecutor shall give his reasoned decision within five days and, if he accepts the proposal, shall send the order declaring the alien undesirable to the Aliens Authority for enforcement. If the order is based on reasons of national security, those reasons shall not be mentioned in it. (4) The alien’s right of residence shall cease automatically on the date of the order. (5) The alien can be declared undesirable for a period of five to fifteen years ... ...” “(1) The order declaring an alien undesirable shall be served on the person concerned by the Aliens Authority in accordance with the procedure provided for in section 81. (2) Communication of the data and information justifying a declaration that an alien is undesirable for reasons related to national security shall be authorised only on the terms and to the persons expressly mentioned in the legislation on activities relating to national security and the protection of secret information. Such information cannot be communicated in any form, whether direct or indirect, to the alien who has been declared undesirable.” “(1) An application for judicial review of an order declaring an alien’s presence undesirable may be lodged with the Bucharest Court of Appeal by the party concerned within five days of the date of service of the order. The court’s judgment shall be final. (2) Such an application shall not stay enforcement of the order ...” 17. In a case similar to the applicant’s, the Constitutional Court ruled on the compatibility of section 84(2) of Government Emergency Ordinance no. 194/2002 with the constitutional principles of non-discrimination, the right of access to a tribunal and the right to a fair trial. An objection on grounds of unconstitutionality had been raised by an alien when seeking judicial review of an order by the public prosecutor’s office declaring him undesirable on the ground that “sufficient intelligence had been received that he had been engaged in activities capable of endangering national security”. 18. The Constitutional Court held that the above-mentioned section was in conformity with the Constitution and the Convention, for the following reasons: “The situation of aliens who are declared undesirable in the interests of national security and the protection of secret information is different from that of other aliens, which allows the legislature to establish different rights for these two categories of alien without that difference infringing the principle of equality. The genuine difference arising from the two situations justifies the existence of different rules. The Court also notes that the prohibition on communicating to undesirable aliens the data and information justifying that measure is in conformity with the provisions of Article 31 § 3 of the Constitution, which provides that ‘the right to information shall not undermine national security’. Nor do the provisions of section 84(2) of the Government Emergency Ordinance infringe the principle of free access to the courts, as provided for in Article 21 of the Constitution. In accordance with section 85(1) [of the above-mentioned ordinance], the person concerned can apply for judicial review of the prosecutor’s order ... Nor can the Court accept [the criticism] concerning the independence of the judges [of the Court of Appeal]; they must comply with the law giving priority to Romania’s national security interests. The Court of Appeal is required to rule on the application for judicial review of the order in accordance with the provisions of Emergency Ordinance no. 194/2002, reviewing, in the conditions and within the limits laid down by that ordinance, the lawfulness and merits of the order of the public prosecutor’s office. With regard to the provisions of Article 6 § 1 of the Convention ..., the Court notes that the impugned provision does not prevent those concerned from applying to the courts to defend themselves and assert all the guarantees of a fair trial. Furthermore, the European Court of Human Rights held, in its judgment of 5 October 2000 in the case of Maaouia v. France [[GC], no. 39652/98, § 40, ECHR 2000-X], that decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him within the meaning of Article 6 § 1 of the Convention.”
| 1
|
train
|
001-57466
|
ENG
|
NLD
|
CHAMBER
| 1,984
|
CASE OF DE JONG, BALJET AND VAN DEN BRINK v. THE NETHERLANDS
| 2
|
Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (victim);Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 14+5;Not necessary to examine Art. 13 and 18;Non-pecuniary damage - financial award
| null |
12. Mr. de Jong, Mr. Baljet and Mr. van den Brink, who were born in 1958, 1953 and 1960 respectively, reside in the Netherlands. In 1979, after being drafted as conscript servicemen in the Netherlands Armed Forces, they each refused, on account of their beliefs as conscientious objectors, to obey specific orders deriving from their obligation to perform military service. They were thereupon placed under arrest by their respective commanding officers for suspected offences against the Military Penal Code (Wetboek van Militair Strafrecht). They were kept in custody and referred for trial before a military court. 13. The procedure for obtaining exemption from military service on the ground of conscientious objection is laid down in the Conscientious Objection to Military Service Act (Wet Gewetensbezwaren Militaire Dienst) and a Ministerial Decree of 31 July 1970. Under the terms of the Ministerial Decree, if a request for recognition as a conscientious objector is lodged with the Minister of Defence within thirty days of conscription the conscript will be given leave pending the decision. Where, on the other hand, active service has exceeded thirty days, leave is not automatically granted in view of the need to investigate any possible abuse of the right to rely on the Conscientious Objection to Military Service Act. In such cases, the commanding officer will first consult with the conscript service department at the Ministry of Defence. Where military criminal proceedings have been instituted against a conscript serviceman who has applied for the status of conscientious objector, they may be stayed pending a decision by the Minister on the request (section 4 sub-section 3 of the Conscientious Objection to Military Service Act). The decision in this respect will depend upon the particular circumstances, having regard, inter alia, to the time that has elapsed between the conscription and the lodging of the request. Proceedings must, however, be stayed once the Advisory Board on Conscientious Objectors has commenced its enquiries (section 4 sub-section 3). After the Advisory Board has stated its opinion, the Minister may grant recognition as a conscientious objector (section 7). The Minister’s decision is subject to appeal (section 8). The entitlement to conduct criminal proceedings for failure to obey orders or military regulations or for failure to report for enlistment lapses automatically upon recognition of the accused’s conscientious objection (section 10). 14. Criminal procedure for the military land and air forces, including in particular the matter of arrest and detention on remand, is governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land-en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. Offences under military criminal law, which applies equally to conscript servicemen such as the applicants and to volunteers, are tried at first instance before a Military Court (Krijgsraad). There may be an appeal to the Supreme Military Court (Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on points of law to the Supreme Court (Hoge Raad) of the Netherlands. 15. Every officer and non-commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty (Article 4 of the Military Code). The resultant detention is not to exceed twenty-four hours (Article 5). The commanding officer may order the suspect to be placed or kept in custody on remand if (a) there is a serious risk of absconding or (b) there are important reasons of public safety requiring immediate deprivation of liberty or (c) this is necessary in connection with the maintenance of military discipline among other servicemen (Article 7, second paragraph). Such a detention order may be made against a serviceman suspected of any offence set out in the Military Penal Code or any offence in respect of which detention on remand is permitted under the civilian Code of Criminal Procedure, with the exception of those offences of which the Military Court takes no cognisance (Article 7, fourth paragraph). An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom, or is likely to be given a sentence of shorter duration than that of the detention on remand (ibid.). Detention must be terminated once the grounds for it cease to exist (Article 7, fifth paragraph). All cases of detention exceeding four days shall be reported by the commanding officer to the commanding general (Article 7, sixth paragraph). Where detention has lasted fourteen days, the suspected serviceman may petition the competent Military Court to fix a term (liable to extension) within which the commanding general must either decide whether the case is to be referred to a Military Court or else terminate the detention. The Military Court has to rule on the petition without delay, after hearing the authority empowered to refer the case, the auditeur-militair (see paragraph 19 below) and the suspected serviceman, who may have the assistance of an adviser (Article 13). 16. If, after receiving the advice of the auditeur-militair and, "if possible" ("zo mogelijk"), after the suspected serviceman has been heard, the commanding general or a senior officer (hoofd officier) designated by him to act on his behalf considers that the case should be tried by the Military Court, the serviceman shall be referred for trial before that Court (Article 11). On the other hand, the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter (Article 12). Regulation No. 27/7 of the Ministry of Defence explained the effect of these provisions as follows (translation from Dutch): "In military penal procedure, as distinct from civilian procedure, the decision to prosecute in a case is not taken separately by the prosecuting authority, the auditeur-militair, but by a military authority. That authority is the commanding general or the senior officer he has appointed to act on his behalf, i.e. the referring officer ... Thus, the auditeur-militair is merely an advisory body at this stage, although the obtaining of his advice and the giving of that advice by him are mandatory." Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody; the grounds for detention set out in the second and fourth paragraphs of Article 7 (see paragraph 15 above) apply pari passu (Article 14). If, against the advice of the auditeur-militair, the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial, the auditeur-militair may take the matter to the Supreme Military Court (Article 15). No appeal is provided for in the contrary case. According to the Government, it has now become standard procedure to apply the above provisions of the Military Code in the following manner. Where detention on remand has been ordered, the suspected serviceman is always heard by the auditeur-militair and any referral to the Military Court takes place shortly thereafter, on average four to five days after the arrest. In view of the requirements of Article 14 of the Military Code, the auditeur-militair’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in Article 7 are fulfilled. Thus, the standard written form used by the auditeur-militair for the purposes of transmitting his advice to the referring officer contains, inter alia, a paragraph as to whether the suspect should "be released or be placed or kept in custody". Practice has evolved to the point where the advice of the auditeur-militair is invariably followed and generally regarded as binding. 17. Detention maintained or ordered in the decision referring the serviceman for trial may not exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained by virtue of the referral decision must be heard by the officier-commissaris (see paragraph 20 below) as speedily as possible and in any event within four days of referral; in this connection, the accused may be assisted by an adviser (Article 33, first paragraph). Before extending detention, the Military Court must give the accused or his adviser the opportunity to submit argument (Article 33, second paragraph). As soon as the grounds for the detention cease to exist, release must be ordered (Article 34, first paragraph). In the period between referral and commencement of the trial, power to order release is exercisable by the auditeur-militair, or by the Military Court at the request of either the officier-commissaris or the detained serviceman himself (Article 34, second paragraph). The Military Court, in deciding on such requests, will hear the auditeur-militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time (Article 34, third paragraph). 18. If the accused is in custody at the first hearing, the Military Court will decide, after being addressed by the auditeur-militair, whether or not the nature and circumstances of the case require his continued detention during the trial (Article 151). The Court may direct the accused’s release from detention on remand at any later stage in the proceedings, either of its own motion or at the request of the auditeur-militair or the accused himself (Article 156). 19. The auditeur-militair has the function of prosecuting authority before the Military Court (Article 126, first paragraph). No serving member of the Armed Forces may appear as auditeur-militair or substitute auditeur-militair (Article 126, third paragraph). The auditeur-militair and his substitute may be replaced by an acting auditeur-militair (plaatsvervanger - Article 126, second paragraph) who may be a military officer, but such replacement was said by the Government to occur only in exceptional circumstances. Auditeurs-militair (including substitutes and acting ones) are appointed, and dismissed, by the Crown on a joint proposal from the Ministers of Justice and Defence; they must possess a law degree (Article 126, fourth and sixth paragraphs). Under the terms of Article 276, second paragraph, of the Military Code, they are obliged to comply with instructions given to them in their official capacity by the Minister of Justice. However, according to the Government, this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and, at least in recent years, no Minister of Justice has acted or interfered in a concrete case on the basis of Article 276. The auditeur-militair is bound by his oath to act honestly and impartially (Articles 368 and 370). He must attend the hearings of the Military Court (Article 290) but he does not take part in the Court’s deliberations. He is under a general duty to assist the Military Court, as well as the commanding general, with reports, observations and advice in relation to military justice when required to do so (Article 278). He is not under the supervision of the Military Court or the Supreme Military Court in the discharge of his duties, save that the Supreme Military Court has the power to reprimand him should he fail strictly to observe statutory time-limits (Article 297). 20. Attached to each Military Court is at least one officier-commissaris who is in charge of the preliminary investigation of cases (Article 29). An officier-commissaris is an officer or former officer of the armed forces with the rank of captain or higher and is appointed for a fixed term of at least one year by the commanding general (ibid.). While he may at the same time be a member of the Military Court, this is not usually the case. His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary (Articles 29, 48 and 78). A hearing by the officier-commissaris has the same force as a hearing by the Military Court (Article 161). During his enquiries, he is under a duty to apply himself equally to discovering the accused’s innocence and to obtaining proof or admission of guilt (Article 62). Like the auditeur-militair, he is bound by his oath to act honestly and impartially (Articles 368 and 370). 21. By virtue of the Constitution of the Netherlands, the Convention forms part of and has primacy over domestic legislation, whether earlier or subsequent. Under the ordinary criminal law, by virtue of Articles 89 and following of the Code of Criminal Procedure, compensation may be recovered for the consequences, both material and non-material, of wrongful detention. No comparable clauses are contained in the Military Code. On 26 June 1979, that is subsequent to the detention of Mr. de Jong and Mr. Baljet (see paragraphs 22-25 below), the Minister of Justice made an "interim provision" declaring Articles 89 and following applicable by analogy to military criminal procedure, subject to a limitation period of three months. Before the Commission, the Government submitted that, quite apart from this, a claim in respect of matters allegedly contrary to the Convention could always be brought against the military authorities under Article 1401 of the Civil Code, which provides: "Any unlawful act (onrechtmatige daad)as a result of which damage has been inflicted on another person makes the person by whose fault (door wiens schuld) the damage was caused liable to pay compensation." Before the Court, the Government stated that compensation could only be recovered under Article 1401 for material loss suffered, but they referred to the additional possibility of seeking from the civil courts a declaratory judgment against the authorities that a period of detention had been unlawful. On the basis of such a judgment, the Minister of Defence would "in all likelihood", on request by the person concerned, grant compensation for non-material damage. The Government further explained that Article 1401 did not merely allow a litigant to sue for compensation: according to well-established case-law, the victim of an unlawful and continuing act may apply to the civil courts on the basis of Article 1401 for an injunction; in circumstances of urgency, immediate interim relief may be sought in summary proceedings before the President of a District Court (Articles 289 and following of the Code of Civil Procedure). In cases of allegedly unlawful detention, recourse has been had to Article 1401 in summary proceedings so as to obtain a provisional court order for immediate release. There is, however, no known case in which a serviceman held in custody on remand has relied on Article 1401 to bring either an ordinary claim for financial reparation or an application under the summary procedure for a provisional order of immediate release. 22. In 1978, these two applicants were drafted as conscript soldiers in an infantry battalion, Mr. de Jong as from 5 July and Mr. Baljet as from 3 May. This battalion was designated in January 1979 to leave on mission within two months as part of the United Nations Peace Corps in the Lebanon. Fearing that they might be forced to use violence against other human beings, the applicants, on 17 and 18 January 1979 respectively, lodged applications with the Minister of Defence to be recognised as conscientious objectors (see paragraph 13 above). Pending examination of their requests, the applicants at first continued to perform their normal military duties. However, the Minister not having in the meantime relieved them from service by granting them leave under the Ministerial Decree of 31 July 1970 (ibid.), Mr. de Jong on 29 January and Mr. Baljet on 25 January refused to obey orders to participate in a military exercise. 23. Each applicant was thereupon placed under arrest by his commanding officer (Article 7 of the Military Code - see paragraph 15 above), accused of the offence of insubordination contrary to Article 114 of the Military Penal Code. The ground invoked for their arrest was the need to maintain discipline amongst other servicemen, having regard to their battalion’s imminent mission in the Lebanon. On 30 January, they both appeared before the auditeur-militair. On 5 February, in accordance with the advice of the auditeur-militair, the commanding general referred the applicants for trial before the Military Court and at the same time ordered their release (Articles 11 and 14 of the Military Code - see paragraph 16 above), criminal proceedings having been stayed as a result of the Advisory Board on Conscientious Objectors having commenced its enquiries into their requests to be recognised as conscientious objectors (section 4 sub-section 3 of the Conscientious Objection to Military Service Act - see paragraph 13 above). 24. On 7 February, they appeared before the Advisory Board on Conscientious Objectors (ibid.). On the same day, the Minister of Defence granted them the status of conscientious objectors and they were discharged from military service. 25. On 8 February, each of the applicants lodged a complaint with the divisional commander alleging unfair treatment by the commanding officer who had ordered the arrest. They submitted that the decisions taken against them under Article 7 of the Military Code were in breach of Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. The divisional commander dismissed both complaints on 1 March. On 7 May, the applicants addressed a request for compensation to the Minister of Defence, relying on Article 5 para. 5 (art. 5-5) of the Convention. On 25 July, the Under Secretary of State for Defence rejected their request on the ground that there was no basis for compensation since none of the provisions of Article 5 (art. 5) of the Convention had been violated in the circumstances. 26. Mr. van den Brink was forcibly drafted as a conscript soldier on 20 November 1979 upon his failure to register in due time. On his arrival at a training centre, he was ordered by his commanding officer to take receipt of and put on a military uniform, but he persistently refused to do so. Being a "total objector" ("totaalweigeraar"), he never submitted any request to be granted the status of conscientious objector (see paragraph 13 above). 27. In view of his persistent refusal, the applicant was placed under arrest on 20 November by his commanding officer (Article 7 of the Military Code - see paragraph 15 above), accused of the offence of insubordination contrary to Article 114 of the Military Penal Code. The ground for his arrest was the need to maintain discipline amongst other servicemen, a repetition of the offence being feared. The decision to arrest him also took into account the fact that he did not wish to have recourse to the Conscientious Objection to Military Service Act. On 22 November, Mr. van den Brink appeared before the auditeur-militair. On 26 November, in accordance with the advice of the auditeur-militair, the competent senior officer referred him for trial before the Military Court, while deciding that he should be kept in custody on the same ground as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 16 above). 28. On 28 November, the applicant was heard by the officier-commissaris (Article 33 of the Military Code - see paragraph 17 above). Acceding to a request made two days later by the auditeur-militair, the Military Court on 6 December prolonged the detention for another thirty days (Article 31 of the Military Code - ibid.). The Court rejected the applicant’s counter-arguments for immediate release grounded on Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. Subsequently, his detention on remand was regularly prolonged by the Military Court. 29. The trial took place before the Military Court on 6 February 1980. By judgment of 20 February, the Military Court convicted Mr. van den Brink and sentenced him to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom. He thereupon appealed to the Supreme Military Court. At a hearing on 7 May, he requested his release, relying on Article 5 paras. 1 (c), 3 and 4 and Article 13 (art. 5-1-c, art. 5-3, art. 5-4, art. 13) of the Convention. The Supreme Military Court rejected the request; it held, inter alia, that Article 5 para. 1 (c) (art. 5-1-c) had been complied with and that the lapse of time between his arrest on 20 November 1979 and his appearance before the officier-commissaris on 28 November 1979 came close to but did not exceed the limit drawn by Article 5 para. 3 (art. 5-3). On 19 May, the applicant was convicted and sentenced to eighteen months’ imprisonment by the Supreme Military Court. Mr. van den Brink then entered an appeal on points of law with the Supreme Court. By a separate application to that Court on 4 July 1980, he once more requested his release. He alleged a violation of the same Articles (art. 5-1-c, art. 5-3, art. 5-4, art. 13) of the Convention as in the court below. The Supreme Court dismissed the request on 15 August 1980 (Nederlandse Jurisprudentie, 1981, no. 228). 30. Mr. van den Brink was released on 12 November 1980, after having served two-thirds of his sentence.
| 1
|
train
|
001-85815
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,008
|
KLINAR & KLINAR v. SLOVENIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat
|
1. The applicants, Mr Aleksander and Mrs Andreja Klinar, are Slovenian nationals who were born in 1943 and live in Jesenice. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney General. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The case concerns four sets of administrative proceedings resulting from the applicants’ dissatisfaction with their neighbour’s allegedly illegal construction of extensions to his house and various facilities. This construction is situated on their neighbour’s plot of land which is separated from the applicants’ land by a public road. 5. On 27 June 1995 the applicants reported their neighbour’s building of an extension to his house, a garage and certain facilities to the Inspectorate of the Republic of Slovenia for the Environment and Spatial Planning (Inšpektorat Republike Slovenije za okolje in prostor – “the Inspectorate”). The applicants disputed the legality of the construction and requested that proceedings be instituted against their neighbour. 6. In June 1996 the applicants learned that the Inspectorate had not found any irregularities concerning the allegedly illegal construction. Subsequently, the applicants unsuccessfully appealed to the Chief Inspector’s Office (Urad glavnega republiškega inšpektorja). 7. On 6 December 1996 the applicants requested that the proceedings be reopened. 8. On 12 February 1997 the applicants lodged a claim with the Supreme Court (Vrhovno sodišče) on account of the Inspectorate’s failure to decide (molk organa). 9. On 15 November 1997 the applicants lodged a claim before the Supreme Court arguing that the Ministry of the Environment, Spatial Planning and Energy (Ministrstvo za okolje in prostor – “the Ministry”) had also failed to decide. 10. On 9 December 1997 the applicants requested the proceedings to be joined. 11. Meanwhile, on 3 November 1997, the Inspectorate ruled that under the law in force, the applicants did not have locus standi in the proceedings concerning the neighbour’s construction work in spite of the fact that they had requested the Inspectorate to act. These proceedings had been instituted by the Inspectorate itself and only the initiator of the allegedly illegal construction had standing in the proceedings brought by the Inspectorate against him. 12. On 10 November 1997 the applicants lodged an appeal which was rejected by the Ministry on 4 June 1998. 13. On 20 July 1998 the applicants challenged the Ministry’s decision before the Administrative Court. At the same time, the applicants withdrew their previous claim lodged on 12 February 1997 (see paragraphs 8, 9, 10 above). 14. On 14 June 2000 the Administrative Court delivered a judgment rejecting the applicants’ claim. This decision was served on the applicants on 27 June 2000. 15. On 3 July 2000 the applicants appealed to the Supreme Court. 16. On 4 March 2004 the Supreme Court upheld the applicants’ appeal. It quashed the Ministry’s decision of 4 June 1998 (see paragraph 12 above) and ordered the Ministry to re-examine the case. The judgment was based on the Constitutional Court’s decision of 2 October 2003 issued in the second set of proceedings (see paragraph 32 below) requiring the authorities to take into account the actual effect the Inspectorate proceedings had on the particular complainant. 17. On 19 April 2004, as a result of the Supreme Court decision of 4 March 2004, the Ministry quashed the Inspectorate’s decision of 3 November 1997 (see paragraph 11 above) and ordered the Inspectorate to re-examine the case. 18. On 30 June 2004 the Inspectorate, applying the criteria from the Constitutional Court’s decision, again rejected the applicants’ request for recognition that they had locus standi in the proceedings. The Inspectorate found that there was a public road between the applicants’ and their neighbour’s plot of land. Hence, neither the applicants’ rights and obligations nor their legal interest could have been affected by the Inspectorate proceedings conducted against their neighbour. In addition, the Inspectorate found that the applicants’ neighbour had acquired the urban planning permit (urbanistično potrdilo za gradnjo) for the works concerned. 19. The applicants appealed. The Ministry rejected their appeal on 28 December 2004. 20. On 17 February 2005 the applicants challenged the Ministry’s decision by bringing a claim before the Administrative Court. 21. On 15 December 2005 the Administrative Court rejected the applicants’ claim finding that the applicants had failed to demonstrate their legal interest, namely, in what way the Inspectorate’s measures might affect their rights, as required by the Constitutional Court’s decision, and that they accordingly did not have standing. 22. On an unspecified date the Inspectorate instituted proceedings concerning the applicants’ neighbour’s construction of a wall. On 26 August 1997 the applicants proposed that proceedings be instituted also with respect to the landslip. 23. On 15 May 1998 the applicants requested an access to the case file and asked the Inspectorate to secure certain evidence in connection to the landslip. 24. On 28 May 1998 the Inspectorate issued a decision finding that they did not have locus standi in the proceedings and they could not be granted access to the file or make a request for evidence to be secured. 25. On 16 June 1998 the applicants appealed to the Ministry. 26. On 5 January 1999 the Ministry rejected their appeal. 27. On 19 January 1999 the applicants challenged the Ministry’s decision in the Administrative Court and requested that the present proceedings be joined with the first set of proceedings. 28. On 14 June 2000 the Administrative Court rejected the applicants’ claim and request. 29. On 3 July 2000 the applicants appealed to the Supreme Court. 30. On 3 April 2003 the Supreme Court rejected the appeal. 31. On 24 April 2003 the applicants lodged a constitutional appeal with the Constitutional Court. 32. On 2 October 2003 the Constitutional Court issued a decision (Up-257/03-9) finding that when deciding on the applicants’ standing in proceedings instituted ex officio by the Inspectorate, the authorities should have taken into account their legal interest, in particular, whether their rights were affected in these proceedings. It quashed the disputed decisions and remitted the case for re-examination by the Inspectorate. This decision was served on the applicants on 11 October 2003. 33. On 11 December 2003 the applicants urged the Inspectorate to decide in accordance with the Constitutional Court’s ruling. 34. It appears from the letter of the Ministry of Internal Affairs, Directorate of Public Administration (Ministrstvo za notranje zadeve, Direktorat za javno upravo), sent to the applicants on 16 April 2004 further to their prior complaint, that the Inspectorate allowed them to examine the case file. 35. However, on 30 June 2004 the Inspectorate, relying on the Constitutional Court’s decision, ruled that the applicants did not have locus standi in the Inspectorate proceedings, finding that they were not the immediate neighbours since there was a public road between the two plots of land. In addition, the Inspectorate found that a potential landslip did not present any risk to the property of the applicants. As neither the applicants’ rights and obligations nor their legal interest could be affected by the Inspectorate proceedings conducted against their neighbour, they could not be said to have standing. 36. The applicants appealed to the Ministry. 37. On 29 December 2004 the Ministry rejected their appeal. 38. On 17 February 2005 the applicants challenged this decision and instituted proceedings before the Administrative Court. 39. On 15 December 2005 the Administrative Court rejected the applicants’ claim, finding that they had failed to demonstrate their legal interest, namely that the Inspectorate’s measures might affect their rights. As a result, the Administrative Court ruled that the applicants did not have standing. 40. On 28 August 1997 the applicants requested permission to examine the case file from 1980 concerning their neighbour’s urban planning permit (urbanistično potrdilo za gradnjo) issued in respect of certain buildings on their neighbour’s plot of land. 41. On 12 September 1997 the officer of the Jesenice Administrative Unit (Upravna enota Jesenice) orally informed the applicants that their request would be refused. No written decision was issued within the prescribed time-limit. 42. On 15 September 1997 the applicants lodged an appeal to the Ministry against the oral decision refusing them access to the file. 43. On 24 December 1997 they lodged a claim with the Supreme Court on account of the Ministry’s failure to decide. In accordance with a change in the relevant legislation, the Administrative Court obtained jurisdiction in the case. 44. However, on 13 January 1999, the Ministry issued a decision rejecting the applicants’ appeal. 45. On 5 February 1999 the applicants extended the claim lodged on 24 December 1997 to include also the Ministry’s decision. 46. On 8 September 1999 the Administrative Court quashed the Ministry’s decision for procedural reasons and remitted the case for re-examination. 47. On 12 November 1999, since no decision had been issued by the Ministry within the prescribed time-limit, the applicants requested the Administrative Court to give a ruling. The Administrative Court rejected their request as premature. 48. On 2 February 2000 the applicants were asked to demonstrate their legal interest in the case. As a result, the applicants submitted the Administrative Court’s decision of 8 September 1999. 49. On 17 February 2000 the Jesenice Administrative Unit, after re-examination, again rejected the applicants’ request to have access to the file since they had failed to demonstrate their legal interest in the case. 50. On 23 February 2000 the applicants appealed to the Ministry. 51. On 4 May 2004 the Ministry rejected the appeal. The applicants did not lodge any claim against this decision to the Administrative Court. However, on 11 May 2004, they requested the Ministry to reopen the proceedings. 52. On 8 June 2004 that request was rejected by the Ministry. 53. On 22 March 1996 the applicants’ neighbour lodged an application for a site development permit (lokacijsko dovoljenje) concerning the legalisation of extensions to his house and certain facilities built on his property. By virtue of the applicable domestic law, the applicants were a party to this set of proceedings. 54. Hearings were held on 5 June 1996 and 2 April 1997; the applicants participated in these hearings. 55. On 16 April and 15 May 1997 the applicants requested that the relevant evidence in the proceedings be secured by the Administrative Unit’s decision. 56. On 26 June 1997 the applicants appealed to the Ministry on account of the Administrative Unit’s failure to decide. 57. On 16 July 1997 the Administrative Unit issued a decision rejecting the applicants’ request to secure evidence. 58. On 23 July 1997 the applicant appealed against that decision to the Ministry. 59. On 23 October 1997 they urged the Ministry to rule on their appeal. 60. On 11 December 1998 the Ministry quashed the first-instance decision of 16 July 1997 and remitted the case for re-examination. 61. On 18 January 1999 the applicants appealed to the Ministry on account of the Administrative Unit’s failure to decide. 62. In response to a letter of 27 January 1999 in which the Ministry requested an explanation, the Administrative Unit informed the Ministry that the decision quashing the first-instance decision (see paragraph 60 above) had never been served on them. Subsequently, the Ministry informed the Administrative Unit that the decision had been served on them on 15 December 1998. 63. On 27 October 1999 the applicants requested the Ministry to urge the Administrative Unit to decide on the case. 64. On 27 December 1999 the Administrative Unit informed the Ministry that the delays were due to the backlog of administrative cases. On 18 January 2000, finding the said reasons for delays unjustified, the Ministry ordered the Administrative Unit to issue a decision within fifteen days. 65. On 2 November 2000 the Administrative Unit issued a site development permit which had the effect of legalising the relevant buildings and facilities. 66. On 21 November 2000 the applicants appealed to the Ministry against this decision. 67. On 14 June 2004 the Ministry quashed the first-instance decision and remitted the case for re-examination. 68. On 5 October 2004 and on 16 May 2006 two hearings were held. Subsequently, the Administrative Unit issued a new site development permit legalising the relevant buildings and facilities. 69. The applicants appealed against this decision. 70. On 14 December 2006 the Ministry quashed the first-instance decision and remitted the case for re-examination. 71. On 30 July 2007 the Administrative Unit rejected the application for a site development permit lodged on 22 March 1996 by the applicants’ neighbour. It appears that the neighbour did not appeal against this decision. 72. Pursuant to section 49 of the 1986 General Administrative Procedure Act (Zakon o splošnem upravnem postopku, Official Journal no. 47/86), as in force at the material time, only a person having requested the institution of proceedings, a person against whom the proceedings were conducted or a person allowed to participate in the proceedings to protect his or her rights, was to be considered a party to proceedings. 73. Section 124 provided that administrative proceedings might be instituted by the administrative authorities ex officio on the basis of law or when so required by the public interest. When instituting proceedings ex officio, the authorities were required to consider any request made by an individual or an organisation as well as any instructions of other authorities. 74. Section 218 (1) provided that in simple matters, where there was no need to undertake a separate examination or there was no other reason which would prevent the authorities from deciding immediately, an administrative body was obliged to give a decision within one month of the submission of the request for the institution of proceedings or the date on which the proceedings were instituted ex officio. In all other cases the administrative body was obliged to give a decision within two months. 75. Section 218 (2) entitled a party whose application had not been decided within the time allowed in sub-section 1 to lodge an appeal as if the application had been denied. 76. Section 26 of the 1997 Administrative Disputes Act (Zakon o upravnem sporu, Official Journal no. 50 /97, entry into force 1 January 1998) entitles a party having lodged an application with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following cases: “ (...) 2. If the appellate body does not rule on the applicant’s appeal against the first-instance decision within 2 months, or within a shorter period, if any, prescribed by law, and fails to make an award upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his request had been dismissed. 3. The applicant may also act in accordance with the preceding paragraph when an administrative body of the first-instance fails to give a decision from which no appeal lies. 4. If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual’s application within 2 months, or within a shorter period, if any, prescribed by law, the individual may then submit his application to the appellate administrative body. Should the latter find against him, the individual may then bring an administrative action. The individual may also bring an administrative action under the conditions set out in paragraph 2.”
| 0
|
train
|
001-93775
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF SUTYAZHNIK v. RUSSIA
| 3
|
Preliminary objection dismissed (six-month period);Violation of Art. 6-1;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
6. The applicant association was registered in 1994 by the Sverdlovsk Regional Department of Justice (“the Department”) at the following address: 10, Revolution Place, Verkh-Neyvinskiy, Sverdlovsk Region. However, the applicant association has since moved to 11-1, Turgenev Street, Yekaterinburg. As appears from the materials of the case, in particular, from the letter of 11 May 1999, the Department was aware of the applicant association’s actual address. 7. In 1995 a new Law on non-governmental organisations was enacted. The Law required that all NGOs established before 1995 be re-registered before 1 July 1999. The applicant association applied twice to the Department seeking re-registration. However, its applications were refused. 8. The applicant association brought an action against the Department seeking re-registration of the association. On 17 June 1999 the Commercial Court of the Sverdlovsk Region allowed the applicant association’s claim and ordered the Department to register the applicant association. The Court also ordered the reimbursement by the Department of the court fees paid by the applicant association. That decision was upheld by the Federal Commercial Court of the Ural Circuit on 18 October 1999. 9. On 22 August 2000 the Vice-President of the Supreme Commercial Court brought an extraordinary appeal (надзорная жалоба) against the decisions of 17 June and 18 October 1999. As appears from the letter of the registry of the Supreme Commercial Court of 19 November 2001, on 29 August 2000 a copy of the appeal was sent to the applicant association’s previous address, which appeared in the association’s official registration documents. On 7 September 2000 the letter from the registry reached its destination, but it was returned to the sender marked by the postman as follows: “no [such] public organisation is registered [at this address]”. 10. On 26 September 2000 the Presidium of the Supreme Commercial Court of the Russian Federation quashed the lower courts’ decisions by way of a supervisory review. The reasoning of the Presidium reads as follows: “Pursuant to Article 22 of the Code of Commercial Procedure commercial courts could determine economic disputes arising from civil, administrative and other legal relationships. Under Articles 50 and 117 of the Civil Code, as well as Article 5 of the Law On Public Associations a public association is a non-profit organisation. Disputes concerning [State] registration or re-registration of non-profit organisations are not economical by their nature and [hence] do not fall within the competence of the commercial courts.” As a result, the proceedings were discontinued. The hearing took place in the absence of the parties. 11. On 10 October 2000 a copy of the decision of the Supreme Commercial Court was sent to the applicant association’s previous address. This document was delivered on 17 October 2000; however it was also returned to the registry marked as follows: “[this is] the address of the village council, the receptionist refused to take delivery [of this letter]”. 12. According to the applicant association, on several occasions it applied to the Commercial Court of the Sverdlovsk Region with a view to urging the Department of Justice to enforce the judgment of 17 June 1999, as upheld on 18 October 1999, and register the association, but to no avail. In October 2001 a law clerk of the Commercial Court of the Sverdlovsk Region informed the applicant association of the annulment of the decision of 17 June 1999, as upheld on 18 October 1999. On 22 October 2001 the applicant association wrote a letter to the President of the Supreme Commercial Court asking for a copy of the decision of that court. The applicant association received it on 28 November 2001. 13. Shortly thereafter the applicant association challenged the refusal of the Department of Justice before the courts of general jurisdiction. By a final decision of 1 August 2002 the Sverdlovsk Regional Court allowed the applicant association’s claim, ordering the Department of Justice to register the applicant association. 14. In 2003 the applicant association challenged the relevant provisions of the Code of Commercial Proceedings before the Constitutional Court of the Russian Federation. On 18 December 2003 the Constitutional Court declared this complaint inadmissible. The Court found that, although the provisions challenged did not establish any time-limits for bringing an extraordinary appeal, the time within which the appeal was brought in the applicant’s case had not exceeded the “reasonable time”, and, therefore, the applicant’s rights had not been breached by it. 15. The Law On Public Associations (No. 82-FZ of 19 May 1995, as amended), concerning non-profit NGOs, provided that the refusal of the competent Department of Justice to register a public association could be challenged before a court (Section 23 of the Law). 16. Since the 1990s the Russian judicial system has comprised of three elements – courts of general jurisdiction, commercial courts and constitutional courts. The Code of Commercial Procedure of 1995 (No. 70-FZ of 5 May 1995, in force at the material time but repealed on 1 September 2002, hereafter “the old Code”) stated that the commercial courts could determine “economic disputes arising from civil, administrative and other legal relationships ... between legal persons ...” (Section 22 § 1 of the old Code). Article 22 § 2 of the old Code provided that “economic disputes ... include disputes .... challenging the refusal of a State body to register a legal person where such registration is required by the Law”. 17. The Code of Commercial Procedure of 2002 (in force from 1 September 2002, hereafter “the new Code”) contains a similar provision which defined the competence of the commercial courts based on two criteria: the subject matter of the dispute (“economic disputes”) and the status of the litigants (“legal persons”). Article 33 of the new Code stipulates that disputes concerning the creation, reorganisation and liquidation of legal persons was within the competence of the commercial courts. 18. Under section 9 of the Law On Commercial Courts of the Russian Federation (No. 1-FKZ, of 28 April 1995, as in force at the material time), the Supreme Commercial Court had, inter alia, the right to issue recommendations deriving from case-law (разъяснения по вопросам судебной практики). On 9 December 2002 the Supreme Commercial Court issued Recommendation no. 11, “On certain issues arising in connection with the enactment of the Code of Commercial Procedure”, which interpreted inter alia Article 33 of the new Code. In Section 5 of the Recommendation, the Supreme Commercial Court specified that the disputes concerning registration of non-profit organisations fall outside the competence of the commercial courts. 19. The Code provided that the judgments of commercial courts of first instance could be appealed within one month of the date of their adoption (Article 147). Decisions of the courts of appeal were amenable to appeal to the court of cassation also within one month of the date of their adoption (Article 164). 20. Chapter 22 of the Code also established that any judgment or decision of any commercial court of the Russian Federation (except for the decisions of the Presidium of the Supreme Commercial Court) was amenable to supervisory review initiated on application by the President of the Supreme Commercial Court, or his deputy, or the Prosecutor General of the Russian Federation, or his deputy (Articles 180 and 181). The Code did not list the grounds for lodging an application for supervisory review, or the time-limits for doing so. It specified that it could be lodged either on the initiative of the relevant State official or “in connection with a request by a party to the proceedings” (Article 185 § 1). The summoning of parties to a hearing before the Presidium of the Supreme Commercial Court was a discretionary right of the Presidium (Article 186 § 2). 21. The Presidium of the Supreme Commercial Court was the court of final instance within the commercial court system; no appeal lay against its decisions (Article 180 § 1 of the Code).
| 1
|
train
|
001-90937
|
ENG
|
FIN
|
CHAMBER
| 2,009
|
CASE OF A.L. v. FINLAND
| 3
|
Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. On 13 March 2001 a mother contacted the police on account of a suspicion that her child R., a girl born in December 1986, had some ten days earlier been sexually abused by a relative, the applicant. On 21 March 2001 the police took a statement from the mother. On 9 July 2001 the police questioned the applicant. R. was interviewed by the police on 30 July 2001 in the presence of a social worker. No other person was present at the interview, nor was it recorded. 6. The applicant was subsequently charged before the Tampere District Court (käräjäoikeus, tingsrätten) with having sexually abused R., who was 14 years’ old at the time, by touching her sexual organs. The applicant denied the charge. The court received testimony from R.’s mother and the applicant as well as three witnesses who testified on the applicant’s behalf. The prosecutor submitted a video recording of two interviews with R. conducted by a medical expert, H., on 17 and 18 April 2001. H. was heard as a witness in this connection. The prosecutor also submitted a medical statement containing an assessment of the interviews in question and another medical certificate containing findings relating to R.’s physical examination. The prosecutor further produced a statement given on 14 March 2001 by a rehabilitation centre for intellectually disabled persons. From the statement it transpired that R. had the intelligence level of a child aged 6 to 8½ years. Written evidence of R.’s need for professional help was submitted on her behalf. 7. On 20 November 2001 the District Court convicted the applicant of sexual abuse of a child and sentenced him to a suspended term of seven months’ imprisonment. As evidence, the court relied firstly on the testimony of R.’s mother, which it found more credible than that of the applicant and his witnesses and secondly, on the video recording along with H.’s testimony. The court noted that R. had given similar accounts of the events to her mother and to H. It further noted that during the interviews R. had talked to H. openly and with confidence, but her behaviour had clearly changed when the issue of the alleged abuse had been broached. R. had, nevertheless, been able to give an account of the events in a rather versatile and detailed manner. The recording gave the court no reason to suspect that R. had been repeating some other person’s words or that she had imagined the events. 8. The applicant appealed against the judgment to the Turku Court of Appeal (hovioikeus, hovrätten), arguing, inter alia, that the District Court should not have decided the case without hearing R. in person. He had not been given the opportunity to put questions to R. at any point of the proceedings. Nor had he been given an opportunity to watch the video recording of her interviews before the main hearing, yet the recording had been an essential part of the evidence leading to his conviction. The applicant requested that the Court of Appeal hold an oral hearing and that R. be heard in person. 9. On 9 January 2003 the Court of Appeal refused the applicant’s request to hear R. in person as it might be detrimental to her, taking into account her level of development and the nature of the issue in question. The court relied on the principle contained in section 10(1) of the Act on the Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång, Act No. 945/1984), which provided that a person below the age of 15 could not attend a hearing if the court found that this could be detrimental to him or her, and to section 15(2) of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt, Act No. 361/1983), which provided that a child could be heard in court only if it was clear that this would not be detrimental to him or her. This decision was not subject to separate appeal. 10. In the subsequent oral hearing, the Court of Appeal was presented with the same evidence as had been before the District Court, with the addition of four photographs and the floor plan of the applicant’s apartment. On 27 February 2003 the court upheld the lower court’s judgment finding no reason to deviate from its assessment of the evidence. 11. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining, inter alia, that his Convention right to examine witnesses against him had been breached. He requested, inter alia, that the court refer the case back to the lower courts for re-examination and that he be granted an opportunity to put questions to R., either in an oral hearing or by using other arrangements. In the alternative, the applicant requested that an oral hearing be held in the Supreme Court and that testimony be obtained from the applicant and the three witnesses on his behalf. 12. On 14 January 2004 the Supreme Court refused leave to appeal. A. The pre-trial investigation 13. 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 a 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). 14. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act No. 449/1987) provides that 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), Act no. 692/1997). 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. 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 as well (section 34, Act No. 692/1997). 15. As of 1 January 2004, the Criminal Investigations Act provides also that the questioning of a victim or a witness (from now on referred to as 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 witness in person, due to his or her young age or disturbed mental state, without causing him or her harm. The special requirements set by the level of that person’s development for the methods used, for the number of participating persons, and for other conditions, must be taken into account. The person in charge of the investigation may also allow other authorities, under supervision of the investigator, to put questions to the witness. The suspect must be provided with an opportunity to put questions to the witness. The suspect may also put the questions through legal counsel or another representative. However, the investigator may order that the questions be put through his or her intermediary (section 39a, Act No. 645/2003). B. The receipt of evidence in court 16. At the time of the proceedings in question, apart from the leave to appeal proceedings in the Supreme Court, there were no legal provisions concerning the use as evidence of a video recording of testimony given by a child during the pre-trial investigation. 17. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. The relevant provisions at the time of the proceedings in question, as regarded the proceedings in the lower courts, provided as follows. 18. A statement included in a pre-trial investigation report or another document, or a statement recorded by other means, may, as a rule, not be admitted as evidence in court. The court may, exceptionally, admit such a statement as evidence, if the witness in question cannot be questioned before the court (Chapter 17, sections 11(1)(2) and 11(3), Act No. 690/1997). 19. If a person called as a witness is less than 15 years old, 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, section 21, Act No. 571/1948). 20. The Code of Judicial Procedure was amended with effect from 1 October 2003. 21. According to the current provisions, the testimony of a person under 15 years old, or a mentally disturbed person, recorded on audio or videotape during the 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, section 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. 22. As to hearing a child under the age of 15, or a mentally disturbed person, Chapter 17, section 21 (Act No. 360/2003) provides that he or she may be heard as a witness, or for the purpose of obtaining evidence, if the court finds it appropriate, and if the hearing in person is of significant relevance for the establishment of the facts of the case, and the hearing is not likely to cause such suffering or other harm as could be detrimental to the person concerned (from now on referred to as the witness) or to his or her development. Where necessary, the court shall designate a support person for the witness. The witness shall be questioned by the court, unless it finds particular reason to entrust the questioning to the parties. The parties shall be provided with an opportunity to put questions to the witness through the intermediary of the court or, if the court finds it appropriate, directly to the witness. Where necessary, the hearing may take place on premises other than the court room.
| 1
|
train
|
001-60932
|
ENG
|
NOR
|
CHAMBER
| 2,003
|
CASE OF O. v. NORWAY
| 1
|
Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
| null |
9. The applicant was born in 1955 and lives in Norway. 10. By an indictment of 23 June 1993, the applicant and his father were charged under Articles 195 § 1 (sexual relations with a minor) and 207 (sexual relations with a close relative) of the Criminal Code (straffeloven) with having committed sexual offences during the periods from 1985 to 1989 and 1988 to 1991 respectively against the applicant’s daughter, L., who was born on 18 October 1981. 11. By a judgment of 1 June 1994, the Eidsivating High Court (lagmannsrett), sitting with three judges and a jury, noted that the jury had answered the questions on the charges in the negative and therefore acquitted the applicant and his father. No appeal was lodged against the judgment, which consequently gained legal force. 12. Subsequently, on 29 August 1994, the applicant and his father filed a petition with the High Court requesting compensation under Articles 444 and 446 of the 1981 Code of Criminal Procedure (straffeprosessloven) for pecuniary and non-pecuniary damage caused by the criminal proceedings against them. The father sought, in the alternative, compensation under Articles 445 and 446. 13. In the compensation proceedings, the High Court, sitting with the same judges as in the trial, received written pleadings but did not hold an oral hearing. By a decision (kjennelse) of 25 January 1995, it rejected the applicant’s claim but awarded his father 30,000 Norwegian kroner in compensation under Articles 444 and 446. In the introduction to its decision, the High Court reiterated certain information derived from the criminal proceedings, notably the specific contents of the charges of sexual abuse, the jury’s verdict and the acquittal by the High Court. As regards the applicant’s claim, the High Court stated, inter alia: “The High Court notes that, pursuant to Articles 444 or 446 ... of the Code of Criminal Procedure, it is a condition for obtaining compensation that it must be shown to be probable that the accused did not carry out the act which formed the basis of the charge. Accordingly, in order to award compensation it must be shown on the balance of probabilities that the accused did not commit the acts in respect of which he has been acquitted. The High Court finds it probable that the victim [L.], born on 18 October 1981, has been subjected to sexual abuse in the form of sexual intercourse. Reference is made to the medical examination carried out ... on 21 November 1991 ... [L.’s] father and mother separated in 1989 when the mother moved to Oslo together with [L.] ... As a witness, the mother made statements about [L.’s behaviour] before as well as after the separation. This could indicate that she has been subjected to sexual abuse. The child’s behaviour resulted in the mother contacting the ... institute in the summer of 1991 where [L.] underwent individual and family therapy, as did her mother and her cohabitant. As a witness during the trial, Ms Anne Okstad, a psychologist, ... explained [L.’s] behaviour. In the light of this and of talks and symbolic games with [L.], Ms Okstad concluded that there was no doubt that [L.] had been subjected to sexual abuse. The question is therefore now whether on the balance of probabilities other persons than the defendants are behind the abuses. In this respect the judicial examinations of [L.] are of central importance and the witness evidence as to what [L.] has stated is significant. From the outset there had been no concrete information in this case about other offenders. [L.] has been subjected to judicial examinations three times ... In connection with the first examination the judge recorded that no information had been submitted which could justify a concrete suspicion of sexual abuse having been committed against [L.]. During the second examination [the applicant] was mentioned in connection with a description of immoral sexual relations and during the third examination even the grandfather was mentioned. During the examinations the information was submitted, without spontaneity, in part under pressure from the examining judge, and in part through writing down names and events on pieces of paper. According to the mother’s and her partner’s statements, [L.] had referred to both [the applicant] and the grandfather. It appeared as if the child had been under pressure to speak in order to enable the family to calm down. Ms Okstad stated that [L.], in the course of a realistic conversation, had referred to ‘intrusions, pawing, threats and aggression by [the applicant]’ and that she had spontaneously confirmed that abuse had taken place several times. She also appeared to have been agitated both during and after these conversations. Considering the case as a whole, the High Court does not find it shown on the balance of probabilities that [the applicant] did not engage in sexual intercourse with his daughter. ... [The applicant’s] claim for compensation is thus dismissed. In the light of this conclusion, there is no reason to order the reimbursement of his costs.” 14. The applicant appealed against that decision to the Supreme Court (Høyesterett). On 20 April 1995 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) upheld the High Court’s decision, stating, inter alia: “The High Court has correctly taken as its starting-point the view that under Articles 444 and 446 ... of the Code of Criminal Procedure it is a condition that it must be shown to be probable that the accused did not carry out the act which formed the basis for the charge against him and that this implies that on the balance of probabilities [sannsynlighetsovervekt] the accused did not commit the acts in respect of which he was acquitted. In this connection the Committee refers to [its decision reported in] Norsk Retstidende 1994, p. 721, where the first voting judge stated, with the approval of the other judges, inter alia: ’Compensation pursuant to Article 444, first sentence, must – when the accused is acquitted or the case against him is discontinued – cover the financial losses he has suffered if “it has been shown to be probable [gjort sannsynlig]” that he has not carried out the act which formed the basis for the charges. It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence in that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence must apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the ability of the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated, the situation may easily arise that an acquittal is not sufficient to justify a compensation claim where the accused is unable to discharge the burden of proof. I should like to stress that the refusal of a compensation claim does not imply that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation claim must be determined on an independent basis and the rules of evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting-point opted for a solution whereby the financial burden caused by the institution of criminal proceedings which are discontinued or which end with an acquittal must be borne by the accused unless he is able to show that it is probable that he did not commit the act.’ The High Court has found it probable that [the applicant’s] daughter was subjected to sexual abuse ... Considering the case as a whole, the High Court has further concluded that it has not been shown that on the balance of probabilities [the applicant] did not engage in sexual intercourse with his daughter. The Appeals Leave Committee finds no reason to depart from the High Court’s assessment of the evidence, which is based on the judges’ participation at the trial hearing in this case, where it must be deemed vital that the court had the opportunity to hear directly the accused and the witnesses – something which the Committee is not empowered to do ... The Appeals Leave Committee accordingly finds that the evidence is not such as to fulfil the conditions for compensation under Article 444 of the Code of Criminal Procedure; nor, as a consequence, are the conditions for awarding damages under Article 446 satisfied.” 15. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant’s guilt was not unanimous. Only two conclusions are possible in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, such as that formerly known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence to establish guilt. 16. Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted or the proceedings have been discontinued. The provisions read as follows: “If a person charged is acquitted or the proceedings against him are discontinued, he may claim compensation from the State for any damage that he has sustained as a result of the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable. Compensation shall not be awarded where the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction. If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely.” “Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal proceedings whenever this appears to be reasonable in the circumstances.” “If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.” 17. In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446: “Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally settles the case. The provisions of Article 318, first paragraph, shall apply correspondingly. If the case has been concluded without any judicial examination of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction. Otherwise the claim shall be submitted to the court that is to conduct or has last conducted any such trial. If the claim is submitted to the district court or the city court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the court of appeal shall also decide the question of compensation. When examining the claim, the court shall as far as possible sit with the same judges who decided the criminal case. In the court of appeal, lay judges or the selected jurors who join the court pursuant to Article 376 (e) shall not take part unless the decision is made at the same court sitting as that at which judgment is given in the case.” 18. Compensation after acquittal or discontinuation of the proceedings is not automatic and is not awarded unless the conditions in the above-cited Articles are met. 19. When compensation is awarded to persons who are considered innocent as they have been acquitted or the proceedings against them have been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation. 20. In the present case the applicant, unlike his father, did not seek compensation under Articles 445 and 446. Instead, the applicant claimed compensation under the special provision in Article 444, together with Article 446. Under this provision, the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act with which he or she was charged. In the assessment of that probability, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue. 21. According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying in respect of liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the impugned act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act that formed the basis of the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant’s ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge. 22. It is not a requirement for obtaining compensation that the claimant should adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion. 23. In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant had to prove that on the balance of probabilities he or she had not carried out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force were not inconsistent with Norway’s obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Norwegian Official Reports), “Erstatning i anledning straffeforfølgning” (“Compensation in connection with criminal proceedings”), 1996:18, pp. 20-22, 36, 52). On 15 May 2002 a government bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing, inter alia, the repeal of that condition.
| 1
|
train
|
001-68097
|
ENG
|
FRA
|
CHAMBER
| 2,005
|
CASE OF RAMIREZ SANCHEZ v. FRANCE
| 2
|
No violation of Art. 3;Violation of Art. 13;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
8. The applicant was born in 1949 and lives in Paris. 9. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994. He was placed under judicial investigation in connection with a series of terrorist attacks in France and on 25 December 1997 was given a life sentence for the murder of three police officers on 27 June 1975. He is currently in Fresnes Prison. 10. From mid-August 1994 to 17 October 2002 he was held in solitary confinement in La Santé Prison (Paris) and Fleury-Mérogis Prison. 11. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area. The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 m wide at the base, receding to 1 m at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. His only visits were from his lawyers and, once a month, a priest. The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had disappeared, although it was not officially confiscated, and he had not been given a winter jacket that had had been brought to the prison for him in October 1999 until 16 February 2000. The Government did not dispute these facts. 12. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison. His current representative, who is also his fiancée, visited him more than 640 times between 27 June 1997 and 29 April 2002. 13. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods. 14. The first was taken when the applicant was first detained (15 August 1994). It consists of a form on which the following boxes have been ticked: “need to prevent communication with one or more other prisoners” and “breakdown of order and discipline in the prison”. There were no observations by the applicant. The same day, a doctor issued a medical certificate stating: “[The applicant's] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days.” 15. A decision dated 3 November 1995 to prolong the applicant's solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director's Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations: “I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner.” In a medical certificate issued the same day, a doctor “certif[ied] that [the applicant's] health [was] compatible with his continued solitary confinement.” 16. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director's Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor: “certif[ied] that [the applicant's] health [was] compatible with his continued solitary confinement for administrative reasons.” 17. A decision dated 25 April 1995, which was approved by the Regional Director's Office and was applicable from 15 May to 15 August 1995, spoke of the “need to prevent communication with one or more other prisoners” and a “security measure”. The applicant was transferred that day to Fresnes Prison. 18. On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating: “... health currently compatible with continued solitary confinement.” On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995. 19. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant's health was satisfactory and compatible with solitary confinement. On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995. 20. On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant's health was satisfactory. On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996. 21. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant's health was compatible with his detention in the segregation unit. On 7 May 1996 the measure was prolonged for a period of three months starting on 15 May 1996. 22. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation: “I do not think it right that I should be asked to sign more than five months late.” 23. On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant's health was compatible with his detention in solitary confinement. 24. On 15 July 1996 the applicant was notified of a measure which referred to the “need to prevent communication with one or more other prisoners” and to “international terrorism”. 25. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “need to prevent communication with one or more other prisoners”. The applicant made the following observations on the notification slip: “I note that Mr ..., the director, has already replied to these observations even before I have made them; it is stated below: 07.11.1996 before the commission responsible for the execution of sentences in the prison. Consequently, the remarks I am required to make have become superfluous. Even so, my solitary confinement is a form of torture. This measure, like those that follow, was authorised by the Head of the Prison Service at the Ministry of Justice on 14 November 1996.” 26. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health compatible with solitary confinement. 27. Proposals that were made on 20 January and 25 April 1997 referred to the “need to protect you from the rest of the prison population” and the “need to prevent communication with one or more other prisoners”. The applicant made the following remarks on the first of these proposals: “I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement.” 28. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant. With regard to the proposal of 25 April 1997, the applicant noted: “I have not had a check-up, been weighed or had my blood pressure taken etc... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up.” 29. A decision of 21 July 1997 referred in addition to: “breakdown of order and discipline in the prison” and “potential dangerousness linked to acts of terrorism ”. The applicant made the following comments: “I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me. I request an immediate interview with those in charge.” 30. A decision of 13 August 1997 again cited the “need to prevent communication with one or more other prisoners”. 31. On 14 October 1997 a Fresnes Prison doctor issued a certificate certifying that the applicant's health was satisfactory. The proposals of 21 October 1997 and 23 January 1998 were in the same terms as those of 13 August 1997. On signing the proposal of 21 October, the applicant stated: “I sign under protest against an unjust repressive measure (decision) against a political prisoner, hostage of the French State.” 32. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant's health was satisfactory. 33. It was followed by a further certificate on 22 April 1998 stating that the applicant was well enough to remain in solitary confinement and a certificate of 23 July stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and well enough to remain in solitary confinement. 34. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “precautionary and security measures in view of the prisoner's character and record”. The applicant commented as follows on the proposal of 22 April 1998: “I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy.” With regard to the measure of 19 October 1998, he noted: “The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me.” 35. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated that the applicant's “health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment”. Proposals made on 14 January and 8 April 1999 stated: “The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases.” 36. The Ministry of Justice stated in decisions of 20 January and 20 April 1999: “The character of this prisoner, who is a high-security prisoner and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds.” 37. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read: “The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year's confinement. Last certificate issued on [illegible]. There is therefore no need to append a certificate regarding prolongation to this note.” 38. On 23 April 1999 another prison doctor certified that the applicant's health was compatible with his detention or continued detention in solitary confinement. 39. A further certificate dated 20 July 1999 confirmed that the applicant's health was compatible with his continued detention in solitary confinement. A decision of 22 July 1999 cited the following reasons: “You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as a high-security prisoner, and the nature of your convictions and of the cases currently pending.” 40. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows: “It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal.” The applicant made the following observations: “I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and Law itself. ALLOUHA AKBAR.” 41. On 1 February 2000 the authorities relied on “order and security grounds, in view of your character, your classification as a high-security prisoner and the offences for which you have been imprisoned”. 42. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the sentence read: “given your access to outside help”. 43. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read: “I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement. However, it is not proper for a patient's doctor to be required to issue a certificate that ought to be a matter for expert opinion. It is very difficult for a doctor to sanction solitary confinement on administrative, not medical, grounds.” 44. On 3 October 2000 another doctor issued a certificate in the following terms: “I the undersigned ... certify that I have today examined [the applicant]. No clinical examination was carried out. However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” 45. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the Governors of Fleury-Mérogis and La Santé Prisons dated 30 December 2000 and 22 January 2001 respectively to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer. 46. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added: “However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” On 28 March 2001 the applicant commented as follows: “I have once again filled in this form, having already done so on 19 March... I denounce 'the white torture' of perpetual solitary confinement which, following the 'serious provocation of 28 December 2000', has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of 'lese-humanity'.” 47. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate: “I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement.” 48. On 24 April 2001 it was decided to prolong the solitary confinement “in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risks of your escaping given your access to outside help.” The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms. 49. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit wrote to the Governor of La Santé Prison in these terms: “I have met Mr Ilich Ramirez Sanchez, ..., as I was asked for an opinion on whether there is any contraindication to this patient's remaining in solitary confinement. Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm. It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision. ...” 50. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in like terms. 51. On 20 September 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit issued a medical certificate after examining the applicant “for the purposes of the medical opinion required for continued solitary confinement”. He stated that the applicant presented: “A physical and mental condition that was entirely reasonable after seven years in solitary confinement ... This opinion does not constitute an expert opinion, which I am not qualified to give.” 52. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001: “It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape”. In his observations, the applicant noted in particular: “More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken.” 53. Decisions of 10 January, 25 March and 8 July 2002 read as follows: “It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high-risk prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement.” 54. On 13 June 2002 an assistant doctor from the Outpatient Consultation and Treatment Unit at La Santé Prison issued a medical certificate in the following terms: “I, the undersigned, Doctor Haouili, an assistant doctor from the OCTU at La Santé Prison in Paris certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for his solitary confinement to continue. From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner's physical and mental health.” 55. On 29 July 2002 the doctor in charge of the Outpatient Consultation and Treatment Unit at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving: “This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code. He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health. In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit. He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses. He consulted a general practitioner independently of mandatory visits to the segregation unit on... Biological tests are performed regularly. ... The treatment Mr Ramirez-Sanchez has been receiving can be equated to comfort treatment: ... It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service]. ...” 56. In September 2002 a further decision to prolong the solitary confinement was taken “in order to preserve security and order, which are under serious threat owing to the applicant's implication in terrorist networks, his dangerousness and the risk of his escaping”. 57. On 17 October 2002 the applicant was transferred to Saint-Maur Prison (département of Indre), where his solitary confinement ended. 58. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health: “Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002. He has at no stage been placed in solitary confinement in Saint-Maur Prison. As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request. As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The SMPR have not recommended any follow up to that appointment.” 59. In March 2004 the applicant was transferred to Fresnes Prison, where he returned to solitary confinement. 60. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside. 61. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court dismissed the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside. 62. The relevant provisions of the Code of Criminal Procedure are as follows: “Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner's presence. At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty.” “Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor.” “Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure. Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the commission responsible for the execution of sentences at the first meeting following the prisoner's confinement or objection to a request for his or her confinement. The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences. The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner's health, he or she shall give an opinion on whether solitary confinement should cease. Solitary confinement may only exceed three months if a new report has been made to the commission responsible for the execution of sentences and the regional director so decides. Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the commission responsible for the execution of sentences and the prison doctor. The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections.” “Solitary confinement shall not constitute a disciplinary measure. Prisoners in solitary confinement shall be subject to the ordinary prison regime.” 63. A circular was issued on 8 December 1998 to implement the decree amending the Code of Criminal Procedure. It contained, inter alia, the following provisions: “4. Solitary confinement as a precautionary or security measure Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner's request or on the governor's own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons. 4.1. The need to state reasons Since the Conseil d'État's Marie judgment of 17 February 1995 the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions 'giving cause for complaint'. Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as 'internal administrative measures' that are not amenable to review. The courts consider on the basis of Article D. 283-2 that 'solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held' (Conseil d'État, 28 February 1996, Fauqueux judgment; and Conseil d'État, 22 September 1997, Trébutien judgment). 4.2. Nature of the reasons It is not sufficient simply to repeat the succinct 'as a precautionary or security measure' formula used in Article D. 283-1. ... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm. The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement. 4.3. Invalid reasons An order for solitary confinement cannot be made solely for the following reasons. 4.3.1. Nature of the offence The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement. ... II. PROCEDURE IN SOLITARY CONFINEMENT CASES ... 1.4. Content of the decision The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. It contains two sections, one for the reasons and the other for the prisoner's observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision. ... 2.2. Copies of documents for the authorities ... 3. Lifting the measure Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply. In view of the harmful effects of prolonged solitary confinement the prison governor and regional director must closely monitor the length of the measure. The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure. The prisoner must be notified of a decision to lift the measure. If the prisoner asked to be placed in solitary confinement, his or her observations (if any) must be obtained. Article D. 283-1, subparagraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay. A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation. 4. Prolongation of the measure Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ... 4.1. Proposals to prolong the measure The prolongation procedure must be set in motion three weeks before the three-month period expires. Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose. They are then notified of the proposal. No prolongation may be proposed without a prior assessment of the prisoner's situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement. If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing: (i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the commission responsible for the execution of sentences and the date of transmission to the regional director. (ii) The liaison form. (iii) The report on the prisoner's behaviour in solitary confinement based, in particular, on the record of observation. Any report by the medical team or opinion by the doctor will be appended to the proposal file. 4.2. The regional director's investigation The file should be sent to the regional director's office at least fifteen days before the three-month period expires. The regional director's office will examine the file and, if necessary, request additional documents or information. It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure. The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned. If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary cells. The prisoner will be given a copy of the decision to prolong the measure on being notified of it. The same rules apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision. The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible. When a decision to prolong solitary confinement has already been taken by a regional director, then, unless it automatically lapses under Chapter 3, the measure may be lifted during the statutory periods only by a decision of the same authority. In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor has decided to issue together with his opinion on whether any action is called for. 5. Prolongation after a year Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, subparagraph 6. 5.1. Proposals to prolong solitary confinement The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the regional director's office and the central authority time to examine it thoroughly. A doctor's opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal. The prison governor will submit the proposal to the commission responsible for the execution of sentences for an opinion, which the latter will indicate on the proposal form. The prison governor advises the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal. The prison governor must append to the proposal a summary report on the prisoner's behaviour since the initial decision was made. Lastly, the liaison record (III.3) is forwarded with the proposal to give the authority that will take the decision full details of the chronology of the measure. 5.2. The regional director's report The regional director draws up a report on the basis of the prison governor's proposal and gives a reasoned opinion on whether the measure should be prolonged beyond a year. Before doing so, the regional director may lift the measure if he or she considers that is it no longer warranted or substitute another measure within his or her powers. He or she may also recommend other measures, such as a transfer. The file containing the proposal to prolong solitary confinement must be sent to the head office of the prison service at least one month before the preceding measure expires. The central authority must be given time to examine the file and seek alternatives. 5.3. The decision of the Minister of Justice The central authority sends the Ministry of Justice's decision (which will normally be taken by the director of the prison service under delegated authority) to the regional director's office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time. The prisoner is provided with a copy of the decision. An original is placed in the file. A verbal report on the final decision is made to the commission responsible for the execution of sentences. The head office of the prison service retains power to decide on further quarterly extensions beyond a year. The matter is again referred to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end. Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority. ... IV. THE SOLITARY CONFINEMENT REGIME 1. European and national recommendations Following its visit to France of 6 to 18 October 1996 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that 'a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime', in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to the better exercise areas and to activities, including outdoor activities. These recommendations tie in with the findings of the working groups set up by or at the request of the prison service. 2. Implementation of the ordinary prison regime In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime. 1o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communications referred to in Article 145-4 cannot apply to communications with lawyers. 2o The right to relations with members of one's family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement. There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner's classification as a high-security risk in accordance with Article D. 276-1 of Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch. Similarly, prisoners' rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement. 3o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions. If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit. 4o Religious observance. Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain. 5o Health. The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle: (i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure. (ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary regime prisoners. (iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table. 2.6. Activities in the segregation unit Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times. Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner's placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned. Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training. 4. Monitoring of and dialogue with prisoners in solitary confinement 4.1. Monitoring A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant remarks by duty staff or the persons in charge of the unit on the prisoner's behaviour in solitary confinement. The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner. Staff should consult it regularly and in any event if it is intended to propose prolonging the measure. A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure. All prisons shall be responsible for creating, or if one already exists improving, a record of observation meeting the stated objective. 4.2. Dialogue In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement. Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner's character. For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners.” 64. In a judgment of 30 July 2003 the Conseil d'État departed from its previous case-law when it held: “The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged. In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice's submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the Governor of Bois d'Arcy Prison to place him in solitary confinement is unfounded. The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this court. It follows from the foregoing that the Minister of Justice is not entitled to an order setting aside the impugned judgment. It is appropriate in the circumstance of this case to order the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code.” 65. The following extracts are taken from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the responses of the Government of the French Republic and the 'guidelines on human rights and the fight against terrorism' adopted by the Committee of Ministers of the Council of Europe on 11 July 2002. “158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. 159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé .... It met a number of prisoners who had been held in solitary confinement for long, and, in some instances, very long, periods. ... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101). As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders. As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory. 160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded. Doctors were required to inform the prison governor in writing if they considered the prisoner's physical or mental health to be at risk. In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996) would establish new rules for gaining access to a doctor and assessing a prisoner's condition. 161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another. ... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief. 162. In the light of the foregoing, the CPT recommends that the French authorities: (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact; (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report; (iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds). The CPT would also like to know whether the decree announced by the French authorities has entered into force and to receive a copy if it has.” “(i) 'review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact' (paragraph 162) The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure. Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the prison service responsible for deciding whether to prolong solitary confinement that has exceeded a year. The entry into force of this Article, which will be included in a vast decree amending more than 300 articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform. It is intended that a draft circular will be issued when the decree enters into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of individual teaching or training programmes. (ii) 'ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report' (paragraph 162) A draft circular is being prepared (iii) 'ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds)' (paragraph 162). A draft circular is being prepared.” “(i) 'review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact' (paragraph 162). The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation. It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the prison service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care. Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia: (a) full compliance with prisoners' ordinary rights to relations with their family, representatives and others; (b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings; (c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes. This draft was prepared after wide consultation of decentralised services. An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree. (ii) 'ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report' (paragraph 162) The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation. Any event with suspensive effect entailing release or for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner's return to ordinary detention. (iii) 'ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds)' (paragraph 162) The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT.” “111. In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158 to 163 of the reports). Subsequently, in a circular dated 14 December 1998 the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits. Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice. The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons met by the delegation during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities). 112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting. 113. The ministerial instructions state: 'The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit' (point 4.1). They further state, inter alia: 'there shall be no restrictions on prison visits' (point 4.2.2) and '... prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times', that '[i]t is for the prison governor to assess how and when such groups may be organised' and '[i]ndividual educational programmes or distance teaching offered by teachers or instructors should not be discouraged' (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: 'In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement' (point 4.4.2). From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room). The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice's instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular. 114. The CPT also has reservations on the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: 'serious damage to property belonging to the prison that put prison security at risk') or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ('to maintain order in the prison' or 'risk of escape'). In one case the prisoner had been held in solitary confinement since 1997 'because of the nature of the offences of which he had been convicted'. In summary, it would appear that the ministerial instructions, namely 'Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm', are not always fully complied with (cf. point 1.4.2). The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons. 115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf. paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority. The CPT recommends that the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation).” “(i) 'take measures without delay to give full effect to the Minister of Justice's instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular' (paragraph 113) (ii) 'carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons' (paragraph 114) Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year. There are currently 77 prisoners who have been in solitary confinement for more than a year. Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners. The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned. Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the '4,000 programme' will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular. Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the prison service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement. In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits. (iii) 'reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge' (paragraph 115) Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons.” “III Lawfulness of anti-terrorist measures 1. All measures taken by States to combat terrorism must be lawful. 2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. IV Absolute prohibition of torture The use of torture or of inhuman or degrading treatment or punishment, is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted. XI Detention 1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity. 2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to: (i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client; (ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters; (iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.”
| 1
|
train
|
001-22768
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,002
|
SNOOKS and DOWSE v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Matti Pellonpää;Nicolas Bratza
|
The first applicant is a British national, born in 1971 and living in Ashford, Kent. He is represented before the Court by Bailhache Labesse, lawyers practising in St Helier, Jersey. The second applicant is a British national living in Jersey. He is represented before the Court by Bedell Cristin, lawyers practising in St Helier, Jersey. The respondent Government were represented by Mr D. Walton of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. At about 15.30 hours on 12 September 1996 the first applicant collected two bags containing approximately 11.8 kg of cannabis resin from an accomplice in a car park in Jersey. He transferred those bags to a car and was arrested at about 15.36 hours while attempting to make a telephone call from a kiosk. He said that he thought the bags contained money as he had previously been involved in similar exchanges of money with the accomplice as part of a tax evasion scheme. He contended that he did not have an opportunity to examine the contents of the bags before his arrest. He maintained that he had been surprised to have been given the bags by the accomplice on the occasion concerned as he had on previous occasions normally given bags to that person. He said that the telephone call was an attempt to clarify the situation with another accomplice. The first applicant’s trial was in the Royal Court of Jersey before the inferior number, which consisted of a judge of law (the “deputy bailiff”) and two judges of fact (the “jurats”). His defence was that he did not know that the bags contained drugs and had no reason to believe that this was the case. At the end of a three day trial the deputy bailiff delivered a summing up in open court before retiring with the jurats. The first applicant was convicted on 21 May 1997 of offences of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis resin and of being in possession of a controlled drug. No reasons were given for the verdict. He was sentenced to five years, six months’ imprisonment. In a judgment delivered on 26 September 1997 the Court of Appeal allowed his appeal against conviction for being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the deputy bailiff had failed to direct the jurats fully on the ingredients of that offence. It dismissed his appeal against the conviction of being in possession of a controlled drug with intent to supply and substituted a sentence of five years’ imprisonment. The principal grounds of appeal related to alleged deficiencies in the summing up by the deputy bailiff. One allegation was that the summing up had contained a number of factual deficiencies because it had referred to the first applicant’s defence counsel as having implied that the purpose of the first applicant’s going to the telephone kiosk was to telephone an accomplice to ask him what was in the bags and because it stated that part of his evidence was that a woman had rushed in and out of the kiosk “within seconds of his being there”. The Court of Appeal concluded that: “In our judgment these minor factual errors are not significant and could not possibly have affected the verdict of the jurats.” Another allegation was that the summing up had not fairly put the defence case. For example, it indicated that it would have been “very easy” for the first applicant to inspect the bags before his arrest without referring to the defence counsel’s contentions to the contrary. In this regard the court concluded: “We have examined carefully the points made by [the first applicant’s counsel] in relation to this submission but we find no force in it. Some of the points which were alleged to be unfavourable to the appellant on analysis proved to be neutral or even favourable to him... .While it is true that the jurats were not reminded of every piece of evidence which was favourable to the defence, the deputy bailiff was under no duty to do so. What we do find is that the deputy bailiff was at pains to remind the jurats throughout the summing up that the appellant’s defence was that he did not know that the bags contained cannabis resin and that it was his state of mind at the relevant time which was important. The deputy bailiff also reminded the jurats on more than one occasion that the appellant’s version of events was supported by other witnesses. We accordingly reject this criticism of the summing up”. In the course of the proceedings before the Court of Appeal, argument was also heard on the question whether, having delivered a summing up in open court, the presiding judge (in this case the deputy bailiff) should retire with the jurats, who are initially the sole judges of fact (see below). The court made no observations on this point other than to suggest that “...this is an issue which merits careful consideration by the Royal Court”. The Court of Appeal concluded that: “There was ample evidence upon which the jurats could make a finding of guilt. The appeal against conviction for possession of the cannabis resin with intent to supply was accordingly dismissed.” The first applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction. On 30 March 1998, after an oral hearing, this was refused. The second applicant was arrested on the evening of 23 February 1996 following a stop and search by police on a street in Jersey. He was found to be in possession of two packages of diamorphine (heroin) valued at GBP 113,040. He had travelled to London and back earlier that day. He said at his trial that he had gone there to visit an exhibition at the Imperial War Museum and maintained that he had only found the packages upon his return to his flat that evening. He said that he initially thought that the packages contained diamonds, as he had previously carried them for a man called Dr Ambrose between Jersey and London, where he had handed them over to a man called Jan. He had met Jan at Victoria railway station in London that day but had explained to him that, at that time, he had no diamonds. He maintained that, at the time of his arrest, he was on his way with a friend to a public house to try to find Dr Ambrose because he did not know what was in the packages and had not examined their contents. The second applicant’s trial commenced before the inferior number of the Royal Court of Jersey on 16 December 1996. At the conclusion of the closing speeches of the defence and prosecution counsel, the deputy bailiff and two jurats retired. The deputy bailiff’s summing up was delivered in private. On 20 January 1997 the second applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug and of being in possession of a controlled drug with intent to supply it to another. No reasons were given for the verdict. He was sentenced to thirteen years, six months’ imprisonment. The second applicant appealed on a number of grounds, including the fact that the deputy bailiff summed up in private. However, shortly before the appeal hearing, in a letter dated 16 May 1997, he withdrew four of the five grounds of appeal, and elected to proceed only on the question whether there had been sufficient evidence that the applicant had imported the heroin to form the basis of a conviction on the first charge. A few days before the appeal hearing the Solicitor General disclosed to the second applicant’s representatives the existence of witness statements given by seven English police officers who had observed his movements in the United Kingdom on the day in question. Those statements confirmed, inter alia, that the second applicant had met Jan at Victoria station that day and had gone on to the Imperial War Museum. On 11 July 1997 the Court of Appeal allowed the appeal against the conviction of being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis on the ground that the prosecution should have disclosed this evidence before, or at least during, the trial and that the non-disclosure had led to a substantial miscarriage of justice in relation to that conviction. It dismissed the appeal against the conviction of being in possession of a controlled drug with intent to supply on the ground that the non-disclosure did not affect that conviction. It stated that the new evidence: “...could not go to substantiate either directly or indirectly [the second applicant’s] claim to have an entirely separate relationship with Dr Ambrose as a diamond courier. Nor could it explain his behaviour in relation to the two packages on the evening of that day after they had been left in his flat according to [him] by some unidentified person and without any explanation”. The Court of Appeal substituted a sentence of twelve years’ imprisonment. The second applicant petitioned the Judicial Committee of the Privy Council for special leave to appeal against his conviction, reverting, inter alia, to the question whether the summing up in private had been fair. There was a hearing before the Privy Council on 29 October 1998, which was attended by the applicant’s counsel and a representative of the Solicitor General. An account of this hearing prepared by the Solicitor General’s representative states: “... Their Lordships after hearing counsel on both sides and a short deliberation informed the parties that the Petition would be dismissed. I should point out that Lord Steyn [the presiding judge] remarked with great surprise at there being no summing-up by the Bailiff in open court, but went on to say that since the matter had not been raised before the Court of Appeal, he did not believe that it would be appropriate for the Privy Council to intervene in this regard at this stage without having any views from the Court of Appeal. I rather got the impression from Advocate Young for the Petitioner, who attended at the hearing, that someone may well be looking at raising this subject again in an appropriate case in the Court of Appeal, so that the matter may be raised yet again before the Privy Council. ...” The Convention was first extended to the Bailiwick of Jersey, under Article 63 (now Article 56) of the Convention, by a declaration registered at the Secretariat General on 23 October 1953. Protocol No. 11 was extended to Jersey with effect from 1 November 1998. There is one bailiff and one deputy bailiff in Jersey. They are appointed by the Queen and can only be removed from office by her. The deputy bailiff is able to perform all the bailiff’s functions, on the authority of the bailiff. The Royal Court, comprised of bailiff and jurats, has existed in Jersey since the middle of the 13th century. Jurats are charged with the execution of a range of judicial tasks. They are not required to decide legal issues, but instead represent the lay element in the process of judicial decision-making. They also form part of the Liquor Licensing Assembly and the Gambling Licensing Authority. They have powers, inter alia, to authorise the removal of arrested persons to prison in certain circumstances, to supervise dealings in the property of persons under certain forms of legal disability and to supervise the conduct of public elections. Jurats are not chosen at random from the electoral roll, as in the case of ordinary jurors both in Jersey and the United Kingdom. Rather, they are elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the States Assembly. Jurats do not necessarily have a legal qualification, but are usually individuals with a known history of sound judgment and integrity, which has been consistently demonstrated throughout a lengthy professional, business or civic life. The qualifications required for election to the office of jurat are governed by Article 3 of the Royal Court (Jersey) Law, 1948 as amended (Annex 3A, pp. 164-165) (“the 1948 Law”), which currently provides as follows: “QUALIFICATIONS FOR THE OFFICE OF JURAT 1) A person shall, unless disqualified under the provisions of this Law or any other enactment, be qualified to be appointed Jurat if he has attained the age of forty years and is a British subject and - (a) was born in the Island; or (b) has during the five years preceding the day of appointment been ordinarily resident in the Island. 2) For the avoidance of doubt, it is hereby declared that - (a) a person, by reason of the fact that he is not a member of the Established Church, shall not be disqualified for being appointed Jurat; (b) a woman, by reason of her sex or marriage, shall not be disqualified for being appointed Jurat;” Disqualifications for the office of jurat are governed by Article 4 of the 1948 Law. Grounds for disqualification include the holding of any paid office or other place of profit under the Crown or the States or any other administration of the States, or any parochial authority: Article 4 (a)(b). Retirement of jurats is governed by Article 10 (1) of the 1948 Law as amended, which provides as follows: “RETIREMENT OF JURATS A Jurat shall cease to hold office on the day upon which he attains the age of seventy-two years: Provided that a Jurat who, for a continuous period of twelve months fails, without good reason, to discharge the duties of his office, or who, in the opinion of the Court, is permanently unable, through physical or mental incapacity, or for any other reason, efficiently to carry out the duties of his office, may be called upon by the Court to resign and, unless he, within a reasonable time, presents to the Bailiff, for transmission to Her Majesty in Council, a petition praying that Her Majesty may be pleased to permit him to resign his office, he shall be removable by Order of Her Majesty in Council on the petition of the Superior Number of the Royal Court.” Other than trial in the Magistrate’s Court, there are two forms of criminal trial in Jersey, namely an “assize trial” before a judge and jury, and “trial by the inferior number” before a bailiff (or deputy bailiff) and two jurats. In the case of serious statutory offences, including those of which both applicants were accused, trial is always before the Royal Court by the inferior number. The roles of the bailiff and jurats at trial by inferior number are set out in Article 13 of the 1948 Law, which provides: “POWERS OF THE BAILIFF AND JURATS 1) In all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award costs, if any. 2) In all causes and matters, civil, criminal and mixed, other than criminal causes tried before the Criminal Assizes, in which causes the jury shall... find the verdict, the Jurats... shall be the sole Judges of fact and shall assess the damages, if any. 3) In all criminal and mixed cases, the Jurats shall determine the sentence, fine or other sanction to be pronounced or imposed. 4) In all causes and matters, civil, criminal and mixed, the Bailiff shall have a casting vote whenever the Jurats - (a) being two in number, are divided in opinion as to the facts or as to the damages to be awarded or as to the sentence, fine or other sanction to be pronounced or imposed; or (b) (...)” Since the entry into force of the 1948 Law, the bailiff has - as a consequence of his own role as the sole judge of the law - been obliged to give the jurats guidance or directions on relevant matters of law. These directions are generally known as a summing up. In giving his directions on the law, it is common for the bailiff or deputy bailiff to advert to the issues of fact which are crucial to the legal issues upon which the directions are given. As a matter of practice, it is not usual for the bailiff to give a full and formal summing up of the facts, in the manner common in jury trials. The summing up used normally (though not invariably) to be given in private, after the trial itself - including the closing speeches of prosecuting and defence counsel - had taken place in public. However in the first applicant’s case it was given in public. As a consequence of the comments of the Court of Appeal in that case, it has been given in public in subsequent cases. After the trial, the bailiff (or deputy bailiff) and jurats retire together. This practice was referred to by the Court of Appeal in the first applicant’s case. The President stated in his judgment: “... we heard some argument as to whether, having delivered a summing up in open court, the presiding judge should any longer retire with the Jurats [since initially they alone are the judges of fact]. We make no observations on this point other than to suggest that this is an issue which merits careful consideration by the Royal Court.” The following year, in the case of Attorney General v. Young and Williams (1998 1 JLR 111), the Royal Court held that the presiding judge should retire with the jurats when they consider their verdict, since by virtue of Article 13 (4) of the 1948 Law, he was given a casting vote whenever the jurats were divided on an issue of fact. However, the Royal Court also held that it was the presiding judge’s responsibility to ensure that when he retired with the jurats, he limited his contribution to their discussion to matters of law, so that the decision on the facts was theirs alone, as stipulated by Article 13 (2) of the 1948 Law.
| 0
|
train
|
001-72923
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,006
|
MAYER v. GERMANY
| 4
|
Inadmissible
|
David Thór Björgvinsson
|
The applicant, Ms Madeleine Mayer, is a German national who was born in 1952 and lives in Bruckberg. She was represented before the Court by Mr C. Lenz, a lawyer practising in Stuttgart. The applicant is mentally disabled since her birth. A curator has been appointed in 1993 to take care of the administration of her property. Following the death of the applicant’s parents in 1991 and 1993 respectively, the tax authorities found out that her parents had not declared certain assets in the property tax returns concerning themselves and the applicant. Thereupon, the Uffenheim Tax Office reassessed the property tax payable by the applicant, being their heiress, for the years 1985 to 1993 and fixed the default interest due pursuant to section 233a of the Taxation Code (Abgabenordnung, see ‘Relevant domestic law’ below). The decision became final. On 22 June 1995 the Federal Constitutional Court rendered a leading decision concerning section 10 no. 1 of the Property Tax Act (Vermögensteuergesetz), which fixed the rates of property tax payable. It declared that the said section, in all its versions since 1983, was incompatible with the principle of equality before the law laid down in Article 3 § 1 of the Basic Law. However, in order to secure budgetary planning and an equal tax assessment for past periods of time, it decided that the provisions of the Property Tax Act continued to apply until 31 December 1996. The legislator was obliged to adopt a new regulation until then at the latest. On 6 October 1997 the Uffenheim Tax Office ordered the applicant in her position as heiress to pay 14,561 Deutschmarks (DEM) in interest on the property tax evaded by her late parents between 1985 and 1993. It based its decision on section 235 of the Taxation Code (see ‘Relevant domestic law’ below). The default interest already paid pursuant to section 233a of the Taxation Code for an overlapping period of time was deducted from the amount of interest charged (section 235 § 4 of the said Code). On 10 December 1998 the Uffenheim Tax Office dismissed the applicant’s objections against this decision. On 17 February 2000 the Nuremberg Tax Court fixed the tax payable by the applicant at DEM 14,436 and dismissed the remainder of the applicant’s action. It found that pursuant to section 235 of the Taxation Code the applicant was liable to pay interest on property tax evaded by her deceased parents between 1985 and 1992. It found that at least one of the applicant’s parents had committed a tax evasion with in the meaning of section 370 of the Taxation Code (see ‘Relevant domestic law’ below) within that period. As regards the property tax return for 1993, the court found that there was no proof of an intentional evasion of property tax. The declaration was returned by the applicant’s curator, who had not intentionally made wrong statements and the applicant, being mentally disabled, did not participate in filing these submissions. The Nuremberg Tax Court further argued that interest on evaded property tax could still be fixed despite the fact that the Federal Constitutional Court, in its decision dated 22 June 1995, considered section 10 no. 1 of the Property Tax Act to be unconstitutional. As the Federal Constitutional Court had ordered that the impugned section nevertheless continued to apply until 31 December 1996, the tax authorities could still fix property tax and order interest to be paid if such tax was evaded before that date. The Nuremberg Tax Court also found that ordering a heir to pay interest following the death of the testator who was guilty of tax evasion did not violate Article 6 § 2 of the Convention. The heir was the beneficiary of this tax evasion because the testator’s property, including the profits made on the offence, had passed to him or her. It argued that charging interest on evaded taxes pursuant to section 235 of the Taxation Code could not be considered as a criminal sanction. The said section was merely aimed at absorbing profits obtained by the belated payment of the taxes evaded. Interest rate advantages were absorbed for the total period of time in which the amount of tax evaded was not yet paid. This was a longer period of time than the relevant period for which default interest had to be paid according to section 233a of the Taxation Code. However, the interest already fixed pursuant to section 233a of the Taxation Code was deducted from the amount of interest due under section 235 of the said Code (section 235 § 4). According to the Tax Court, the present case was also distinguishable from the case of A.P., M.P. and T.P. v. Switzerland, in which this Court rendered judgment on 29 August 1997 (Reports of Judgments and Decisions 1997-V). That case concerned a fine, that is, unlike the interest in the present case, a criminal sanction imposed on the heir for a tax evasion committed by the testator. On 1 August 2001 the Federal Tax Court dismissed the applicant’s appeal on points of law as ill-founded. It endorsed the reasoning of the Tax Court concerning the implications of the Federal Constitutional Court’s decision dated 22 June 1995. It further agreed with the Tax Court’s view that interest on evaded property tax was not a criminal sanction. This was illustrated, in particular, by the fact that the rate of interest payable on evaded tax pursuant to section 235 of the Taxation Code and the rate of interest payable pursuant to section 233a of the Taxation Code was the same. Consequently, Articles 6 and 7 § 1 of the Convention were not applicable to interest payable on evaded property tax. On 2 May 2002 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint. The rules on interest payable on tax claims are laid down in sections 233-239 of the Taxation Code. Pursuant to section 233a § 1 of the Taxation Code, in its version in force at the relevant time, default interest is payable on supplementary claims of, inter alia, property tax. The period for calculation of the interest due starts 15 months after the end of the year in which the tax arose and ends with the date on which the tax assessment takes effect (section 233a § 2). Section 235 § 1 of the Taxation Code provides that interest is payable on taxes intentionally evaded by the person to whose benefit the tax has been evaded. The time limit for calculation of the interest payable starts already when the tax evasion takes effect and ends only with the payment of the evaded taxes (section 235 §§ 2 and 3). Section 235 § 4 provides that interest already fixed pursuant to section 233a for an overlapping period of time is to be deducted from the interest payable. According to section 238 of the Taxation Code the rate of interest due pursuant to, inter alia, sections 233a and 235 is 0.5 per cent of the amount of supplementary taxes charged per month. Section 370 of the Taxation Code provides that tax evasion, when committed intentionally, is a criminal offence which is punishable with up to five years’ imprisonment or a fine.
| 0
|
train
|
001-103573
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,011
|
AGRO-B SPOL. S R.O. v. THE CZECH REPUBLIC
| 4
|
Inadmissible
|
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
|
The applicant, Agro-B, spol. s r.o. is a Czech company with its seat in Kardašova Řečice. It was represented before the Court by Ms S. Sobolová, a lawyer practising in Prague. The respondent Government were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 December 1999 the applicant company created a joint stock company “AGRO-D, a.s.” which was entered in the Companies Register on 4 January 2000. On 25 January 2000 the applicant company affirmed to invest its real estate, the value of which was estimated at CZK 34,509,880 (EUR 1,225,117), as a non-cash investment in the joint stock company’s capital. The value of its investment was divided, for the purposes of accounting, into three parts, when CZK 10,000,000 (EUR 355,050) was booked as a registered capital (základní kapitál), CZK 2,000,000 (EUR 71,000) as a guarantee fund (rezervní fond) and the remaining part of CZK 22,509,880 (EUR 799,111) was placed on other capital funds. On 12 July 2001 the Jindřichův Hradec Finance Office (finanční úřad) levied on the applicant company real estate transfer tax of CZK 1,246,220 (EUR 44,241), the base of assessment being fixed at CZK 24,924,400 (EUR 885,005), calculated from the value of the immovable property which had not been booked as a registered capital. On 1 March 2002 the České Budějovice Finance Department (finanční ředitelství) dismissed the applicant company’s appeal on the following grounds: “Under section 20(6)(e) investment into companies or cooperatives shall be exempted from payment of gift tax and real estate transfer tax under the relevant legal provisions, i.e. the Second Part of the Commercial Code, which does not recognise any other investment than that in the registered capital, in contrast to the book-keeping procedure ... Moreover, it is clear from section 60(1) of the Taxation Act concerning the management of investments made prior to the creation of a company, that only investments into the company’s registered capital are to be considered as investments into the company ... Bearing in mind that the [Taxation Act] exempts from payment of tax only investments into the company, using the term of ‘investment’ as defined in the Commercial Code, the exemption only concerns those investments which increase the company’s registered capital. Other investments ... which do not increase the registered capital are liable to real estate transfer tax. ... It is to be added that e.g. the Ústí nad Labem Regional Court in its judgment no. 15 Ca 671/97-18 and the Constitutional Court in its decision no. III. ÚS 31/2000 affirmed that an investment ... within the meaning of section 20(6)(e) of the Taxation Act is an investment to the registered capital.” On 17 July 2002 the České Budějovice Regional Court (krajský soud) dismissed the applicant company’s administrative action against the tax order finding, in particular, that since the applicant company had invested to the joint stock company the immovable property in its entirety and not its part corresponding to the joint stock company’s registered capital, the difference between the total value of the invested property and the value of the property invested to the registered capital had constituted the base for the real estate transfer tax. Applying systematic and teleological interpretation it concluded that section 20(6)(e) of the Taxation Act covered only investments that increased the registered capital. The court further held that the fact that the joint stock company could not have the registered capital at its disposal - contrary to its other assets – was precisely taken into account in the tax assessment. The court found irrelevant the applicant company’s reference to section 163a of the Commercial Code that the transfer of immovable property to a joint stock company differed from the same operation involving other companies. In its judgment, the Regional Court made reference to the Constitutional Court’s judgment no. III. ÚS 31/2000 of 18 May 2000. On 4 October 2002 the applicant company lodged a constitutional appeal (ústavní stížnost) alleging a violation of Articles 2 § 2, 11 § 5, 26 § 1 and 36 §§ 1 and 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). On 23 June 2004 the Constitutional Court (Ústavní soud) dismissed the appeal, endorsing the reasons on which the administrative and judicial authorities had based their decisions. It referred to the Ministry of Finance’s opinion which read, inter alia, as follows: “The Director of the Department of Real Estate Tax of the Ministry of Finance, upon the Constitutional Court’s request, submitted that the interpretation of sections 58 and 59 of the Commercial Code may allow a conclusion that the term of investment means property of a partner which he or she undertakes to invest in the company ... The total of the company’s partners’ monetary and non-monetary investments constitutes the registered capital which, in terms of book-keeping, is an accounting debit. Precisely, it is the partners’ real estate invested in the company, forming, after the transfer of the ownership, the registered capital, which constitutes the investment under section 20(6)(e) of the Taxation Act .... The Ministry of Finance is therefore of the opinion that the investment into the company which was exempted from payment of real estate transfer tax under the Taxation Act [then in force] was only the investment valuably expressed in the registered capital. ... The Ministry also referred to the ... opinion of certain courts, e.g. judgments of the Prague Municipal Court no. 28 Ca 362-97-44, of the Ústí nad Labem Regional Court no. 15 Ca 671/97, of the Ostrava Regional Court no. 22 Ca 230/2001-26, the Brno Regional Court no. 29 Ca 525/2000-39 which are published in ASPI, or in professional bulletins ... The Constitutional Court adopted a concordant opinion in its decisions no. III. ÚS 31/2000 and no. II. ÚS 184/2000. According to the Ministry, the tax legislation and its interpretation is accessible to the public, clearly defined and consistent, and so foreseeable.” The Constitutional Court held that the imposition of tax was in conformity with the Constitution as it was based on the law. It further held that having carefully reasoned their decisions, it could not be said that the fiscal authorities had applied the law arbitrarily. The court found irrelevant the applicant company’s reference to section 163a of the Commercial Code that the taxation regime applicable to joint stock companies differed from that which applied to limited liability companies. Under section 9(1)(a) real estate transfer tax is payable on the transfer of an estate carried out in return for payment. Section 10a provides that the real estate transfer tax base is the price established under the relevant legal provisions on the day of the acquisition of the estate, even if the price agreed between the parties is lower than the legally established price. Section 20(6)(e) provided, inter alia, that investments into companies or cooperatives under a special law, i.e. the Second Part of the Commercial Code, shall be exempted from payment of gift tax and real estate transfer tax. Section 20(6)(e) provides, inter alia, that investments into the registered capital of companies or cooperatives under a special law, i.e. the Second Part of the Commercial Code, shall be exempted from payment of gift tax and real estate transfer tax. Section 58 provides, inter alia, that a company’s registered capital consists of the total of its partners’ monetary and non-monetary investments in the registered capital. Under section 59(1), a partner’s investment in the company shall be the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company. Section 60(1) provides, inter alia, that ownership title to real estate is acquired by the company upon the recording of the ownership title in the Land Registry on the basis of a written declaration by the party concerned, to which are appended officially authenticated signatures. Under section 163a(1) the issue price of a share is the sum at which a company issued shares. The issue price cannot be lower than the nominal value of a share. The second paragraph provides, inter alia, that if the issue price of a share is higher than its nominal value, the difference constitutes a share premium. Under the third paragraph, the difference between the value of non-monetary investment and the nominal value of shares which are to be issued to the shareholder as consideration, is considered as a share premium, providing that the company’s statute, articles of association or a decision of the general meeting do not specify that that difference or part thereof is to be paid to the subscriber, or, that it is to be considered as a guarantee fund. The court held that if the claimant’s investment had not been intended to increase the company’s registered capital, it could not be considered as an investment within the meaning of section 20(6)(e) of the Taxation Act. The court held that only investments that increase a company’s registered capital are exempt from payment of tax under section 20(6)(e) of the Taxation Act. The court stated that section 59(1) of the Commercial Code defines the investment of a partner as the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company. The registered capital is then defined as the total of the partners’ monetary and non-monetary investments in the registered capital. Section 20(6)(e) of the Taxation Act exempts from payment of gift tax investments into companies or cooperatives under the relevant legal provisions, i.e. the Second Part of the Commercial Code. It follows that the Commercial Code does not provide for any other investment than that into the registered capital, contrary to accounting rules. Taking into account that the Taxation Act exempts from payment of taxes only investments into a company when using the term of investment as defined by the Commercial Code, the exemption applies only to the investments which increase the company’s registered capital. The court held that the terminology used by the legislator in section 20(6)(e) of the Commercial Code was not equivocal. The legislator used the term of non-monetary investment, which can only be exempted from payment of tax, in meaning both the investment of a partner and, at the same time, the whole substance of the investment, i.e. not only the part which constitutes the partner’s investment but also the part which was considered as a share premium. The Taxation Act had not specified, until 1 June 2001, which of the two meanings of the investment had to be used by section 20(6)(e). The court found in relation to litigation prior to the change in June 2001 that the exemption from payment of real estate transfer tax only applied to an investment into the registered capital of a company. In that case, the real estate transfer tax will not be levied. The court, applying the version in force before June 2001, found that the exemption from payment of real estate transfer tax only applied to investment into a company within the meaning of the Commercial Code. Only those investments which were to increase the registered capital could be exempted from payment of real estate transfer tax. Investments which did not increase the registered capital are liable to tax. The domestic courts held that real estate transfer tax had to be paid on investments into companies that did not form part of the registered capital.
| 0
|
train
|
001-82309
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF MUHAMET AKYOL v. TURKEY
| 4
|
Violation of Art. 5-3;Violation of Art. 6-1
| null |
5. The applicant was born in 1972 and is currently detained in the Tekirdağ F-Type Prison. 6. On 6 February 1993 the applicant was taken into custody within the context of a police operation carried out against an illegal organisation, namely the TKP/ML – TIKKO (the Turkish Communist Party-Marxist Leninist - Turkish Workers and Peasants' Liberation Army). 7. On 15 February 1993 the applicant was brought before a single judge at the Istanbul State Security Court who ordered his detention on remand. 8. On 8 April 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against nine persons, including the applicant who was charged with membership of an illegal organisation under Article 168 § 2 of the Criminal Code. 9. On 19 April 1994 the case brought against the applicant and his co-accused before the 2nd Chamber of the Istanbul State Security Court was joined with another case which had been pending before the 3rd Chamber of the Istanbul State Security Court. 10. During the subsequent forty-eight hearings between 17 May 1993 and 12 June 2000, the Istanbul Security Court, relying on the state of the evidence, the nature of the offence, and the duration of his detention, refused to release the applicant. 11. In the meantime, on 8 July 1997 the applicant escaped from prison. On 17 September 1997 he was arrested and sent back to prison. 12. On 12 June 2000 the Istanbul State Security Court convicted the applicant as charged and sentenced him to twenty years' imprisonment. 13. On 15 May 2001 the Court of Cassation quashed the judgment of 12 June 2000 and remitted the case file to the first-instance court. 14. On 28 December 2001 the Istanbul State Security Court ordered the applicant's release pending trial. 15. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Subsequently, the 11th Chamber of the Istanbul Assize Court acquired jurisdiction over the case. 16. While these proceedings were pending under file no. 2001/225, on 2 July 2004 the applicant was taken into police custody in connection with a new crime. On 6 July 2004 he was detained on remand. 17. On 9 July 2004 the Istanbul public prosecutor filed a new bill of indictment with the 11th Chamber of the Istanbul Assize Court, charging the applicant under Article 146 of the Criminal Code with attempting to undermine the constitutional order. The proceedings commenced before the 11th chamber of the Istanbul Assize Court under file no. 2004/225. 18. On 31 January 2005 the 11th Chamber of the Istanbul Assize Court rendered its judgment in case no. 2001/225 in respect of some of the accused. It disjoined the case against the applicant and decided to join it to the new proceedings brought against the applicant pending before the same court under file no. 2004/225. 19. On 2 February 2005 the 11th Chamber of the Istanbul Assize Court decided to join the case (file no. 2004/225) to another pending before it (file no. 2004/191). 20. During the subsequent hearings, the Istanbul Assize Court rejected the applicant's release requests having regard to the state of the evidence, the nature of the offence and the risk of the applicant absconding. 21. According to the information in the case file, the criminal proceedings against the applicant are still pending before the 11th Chamber of the Istanbul Assize Court under file no. 2004/191. The applicant is currently in detention on remand.
| 1
|
train
|
001-4784
|
ENG
|
TUR
|
ADMISSIBILITY
| 1,999
|
ARSLAN v. TURKEY
| 4
|
Inadmissible
|
Marc Fischbach
|
The applicant, born in 1974 in Samsun, is a citizen of Turkey. He is resident in Bursa. The applicant is represented before the Court by Abdurrahman Şahin, a lawyer practising in Ankara. A. On 23 June 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. A bullet entered his neck, causing permanent damage to his spine and leaving him 90 % paralysed below the waist. The applicant received a retirement pension. His medical expenses were covered by the State. Under Law No. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper (bakıcı) to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient. On 8 March 1996 he requested the Ministry of Interior to pay him additional compensation. The Ministry rejected his request. On 9 May 1996 the applicant challenged the Ministry’s rejection before the 2nd Chamber of the Supreme Military Administrative Court. The Chamber was composed of five military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation awarded under Law No. 2330 already paid to him. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the assessment of the legal expert, the applicant had already been adequately compensated. The applicant’s lawyer objected to the expert’s calculations on the ground inter alia that the full amount of the fees paid to the helper had to be disregarded from the final calculation. On 26 February 1997 the 2nd Chamber of the Supreme Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards. Under domestic law the judgments of the Supreme Military Administrative Courts are final and cannot be appealed. The applicant requested rectification of the judgment (kararın düzeltilmesi). In accordance with domestic law, the file was re-examined by the same five-judges of the 2nd Chamber of the Supreme Military Administrative Court which had given the judgment of 26 February 1997. On 30 April 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification. B. Relevant domestic law Article 66 of the Law No. 1602 on the Supreme Military Administrative Court provides: “Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties: a) The judgment does not refer to the allegations and the objections which affect its merits; b) The judgment contains provisions which contradict each other; c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.
| 0
|
train
|
001-22886
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,002
|
SOKUR v. Ukraine
| 3
|
Inadmissible
|
Gaukur Jörundsson
|
The applicant, Fedor Aleksandrovich Sokur, is a Ukrainian national, who was born in 1940 and resides in the village of Grodovka, Donetsk Region, Ukraine. The facts of the case, as submitted by the applicant, may be summarised as follows. In 2001, the applicant instituted proceedings in the Novogrodovsky City Court of Donetsk Region against the “Novogrodovskaya” Mining Company - a State-owned enterprise - to recover unpaid salary for the years 1998-2000. On 3 May 2001, the Novogrodovsky City Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области). The decision became effective on 14 May 2001 and was sent for execution to the Novogrodovsky City Bailiffs’ Office (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции). However, the decision was not executed, allegedly due to the failure of the Bailiffs’ Office to act, in not selling the property of the Mining Company. The applicant instituted proceedings in the Novogrodovsky City Court of the Donetsk Region against the Novogrodovsky City Bailiffs’ Office for failure to execute the court decision in his favour. On 18 July 2001, the City Court rejected the applicant’s claim, finding no fault had been committed by the Bailiffs’ Office. The court stated that the Bailiffs’ Office had presented the decision of the Commercial Court of the Donetsk Region of 30 August 2000 to the respondent company, but was prohibited from enforcing the decision by selling the property of the mine, due to the bankruptcy proceedings which had been initiated against it. On 1 November 2001, the Appellate Court of the Donetsk Region dismissed the applicant’s appeal. On 18 February 2002, the panel of three judges of the Civil Chamber of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal. On 26 December 2001, the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital, was entrenched in the Law on the Introduction of a Moratorium on the Forced Sale of Property. Under Section 12 of the Law on bankruptcy (Закон Украни «Про відновлення платоспроможності боржника або визнання його банкрутом»), a commercial court is entitled to order a moratorium on debt recovery from a company subject to bankruptcy proceedings. The moratorium implies a prohibition on the Bailiffs’ Office to execute judgements against such a company. The Law on the Introduction of a Moratorium on the Forced Sale of Property (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set. Section 2 of that Law provides that the prohibition on the forced sale of property includes the execution of writs by the State Bailiffs’ Office over property belonging to such companies. The Law therefore stays the execution of all writs by the State Bailiffs’ Office against the assets of undertakings in which the State holds at least 25% of the share capital.
| 0
|
train
|
001-57944
|
ENG
|
LUX
|
CHAMBER
| 1,995
|
CASE OF PROCOLA v. LUXEMBOURG
| 2
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award
|
R. Pekkanen
|
7. Procola is a dairy constituted as an agricultural association under Luxembourg law. Its registered office is at Ingeldorf. 8. Following the introduction of the "milk quota" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984, Luxembourg adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law. A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981. 9. The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities. In accordance with Article 177 of the Treaty establishing the European Economic Community ("the EEC treaty"), that court referred a number of questions to the Court of Justice of the European Communities ("the Court of Justice") for a preliminary ruling, which was given in a judgment of 25 November 1986. 10. In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty. The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in Luxembourg by means of a grand-ducal regulation. 11. On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983. In order to meet Luxembourg's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984. The draft regulation was submitted to the Conseil d'Etat for an opinion. 12. In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation. 13. At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries. 14. With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to "the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986". For these periods, paragraph 2 of the single section of the Act provided: "Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation." 15. On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988. 16. On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low. In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987. In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application. 17. In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms: "While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution. Luxembourg was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome. Under Article 189 of that treaty, Community regulations are directly applicable. Consequently, Luxembourg was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so. At all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation. The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it. A plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ..." Four of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue. 18. In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984. These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the "reference quantity". Each member State was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B. The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity. The additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity. Where a member State chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota. 19. Luxembourg opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above). 20. At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided: "In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision. The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute." 21. The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat. Section 1 provides: "The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee. The latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat." The Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4). The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself. The members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5). 22. Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat. The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title. The duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament. Section 22 (2) provides: "Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat." It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee. 23. In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72. 24. The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8). 25. With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties. 26. As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings. Its judicial powers are restricted in two respects. Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31). 27. In 1989 Article 76 of the Constitution was amended. A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions.
| 1
|
train
|
001-122743
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,013
|
MURADI AND ALIEVA v. SWEDEN
| 4
|
Inadmissible
|
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
1. The first applicant, Ms Selma Alieva, is an Azerbaijani national who was born in 1989. The second applicant, Mr Ali Muradi, is an Afghan national who was born in 1982. They are both currently in Sweden. They are represented by Ms I. Andersen from Virserum. 2 3. The first applicant applied for asylum and a residence permit in Sweden on 10 October 2011. Before the Migration Board (Migrationsverket) she stated the following. She had lived in an orphanage until she was five, after which a couple had taken care of her. Her stepmother had passed away when she was seven years old. Her stepfather had been very cruel and harsh; he had beaten and battered her. Furthermore, he had begun to abuse her sexually when she was 12 years old. A Kurdish man used to visit them when she was approximately 16 years old. She had had the impression that he wanted to marry her. Subsequently, she and her stepfather had travelled with the Kurdish man to Turkey. The morning after their arrival there her stepfather had disappeared. Following this, the Kurdish man had abused her sexually and had left her at a hotel where she had been forced into prostitution. This had continued for approximately five years until she had been able to flee to Sweden. She had no male relatives who could protect her in Azerbaijan. She did not want to have any contact with her stepfather. 4. On 28 December 2011 the Migration Board rejected the request. It first stated that, although the first applicant had not submitted any documents to substantiate her identity or asylum story, she had made it credible that she was an Azerbaijani national. The Board then observed that, according to country information, it had become easier for women in Baku to participate in society and to work over the last few years. Moreover, the Board found it possible for the first applicant to reside in Baku without having any contact with her stepfather. Furthermore, the Board noted that she had not sought protection from the domestic authorities in Azerbaijan as regards the violence and abuse by her stepfather. She had not substantiated that the domestic authorities would not be able or willing to protect her upon return. In conclusion, the Board found that the first applicant had not shown that she was in need of protection in Sweden. 5. The first applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims and adding the following. She feared that, if returned to Azerbaijan, she would again be a victim of trafficking and be forced into prostitution. Those who had forced her into prostitution were still looking for her. Due to the fact that she had no contacts in Azerbaijan, no education and no assets, it would be impossible for her to manage on her own there. 6. On 28 May 2012 the Migration Court rejected the appeal. It first observed that, according to country information, trafficking and prostitution were big problems in Azerbaijan. However, the court considered that the general situation for young women in the country was not a ground for protection per se. Moreover, the court noted that the stepfather had abused the first applicant when she was a child and that it had not emerged that she had been forced into prostitution in Azerbaijan. Underlining that she was now an adult woman, the court found that there was nothing to suggest that she would risk abuse by her stepfather upon return. As regards her claim that those who had forced her into prostitution in Turkey were still looking for her, the court noted that this had been stated for the first time in the appeal to the court and that she had not presented any concrete information or explanation as to how she had found out about this. 7. It appears that the first applicant did not appeal to the Migration Court of Appeal (Migrationsöverdomstolen). 8. The second applicant applied for asylum and a residence permit in Sweden on 5 October 2011. Before the Migration Board he stated the following. He was Hazara and came from the province of Ghazni, Afghanistan. His family had recently moved to Pakistan. The Taliban had visited his family’s house in Afghanistan and had told him and his father to cooperate or be killed. They had replied that they would think about it. Subsequently, the Taliban had come looking for him on two occasions. Because of this, his father had wanted him to flee and, in 2008, he had travelled to Iran. In 2009 his father had been killed. The second applicant thought that this was an act by the Taliban, since his father did not have any other enemies. He could not return to Afghanistan because there were Taliban everywhere in the country. Furthermore, it would be difficult for him to find an occupation in another part of the country. 9. On 4 January 2012 the Migration Board rejected the request. It first noted that the second applicant had submitted a tazkira but considered that it did not make his identity credible. However, the Board found it credible that he came from the province of Ghazni. Turning to his individual claims, the Board considered that the asylum story was brief and that it concerned alleged events which had occurred in the relatively distant past. The Board found it unlikely that those who had wanted to recruit him three years earlier would still be interested in him upon return. As regards the general situation in Ghazni the Board noted that, according to country information, there was an internal armed conflict in the province. In the light of this, the Board found it unreasonable for him to return there. However, it considered that it was possible and reasonable for him to return to Kabul, finding, inter alia, that the security situation was better there and that the second applicant was a young, healthy man capable of working. 10. The second applicant appealed to the Migration Court, maintaining his claims and adding that the Taliban who had killed his father would find him even if he moved to Kabul. The second applicant submitted, inter alia, a document which was allegedly a warrant for his arrest, issued by the Taliban. 11. On 29 May 2012 the Migration Court rejected the appeal. The court found that the second applicant’s story did not raise any questions as to his home province and thus decided to examine the appeal on the basis, in the first place, of a return to Ghazni. Turning to the general situation in the province, the court agreed with the Board that there was an internal armed conflict and that the second applicant therefore could not return to Ghazni. However, it considered that, although the security situation in Kabul was volatile, the second applicant was a healthy young man who should be able to settle there despite the generally serious situation. As to the second applicant’s asylum story, the court considered that it related to events in Ghazni which had occurred in the relatively distant past. In the court’s view, the fact that there were Taliban in Kabul did not automatically entail a personal threat against the applicant there. Furthermore, the court had doubts about the alleged arrest warrant submitted, noting that the document contained stamps in English, which the court found difficult to associate with official Taliban documents. As there were no other grounds to grant the second applicant leave to remain in Sweden, it rejected the appeal. 12. On 5 October 2012 the Migration Court of Appeal refused leave to appeal. 13. In October 2012 the applicants requested the Migration Board to reconsider its previous decisions due to new circumstances. They stated that they had met and established a relationship and that the first applicant was pregnant. It was imperative, for the sake of their child, that they be allowed to stay in Sweden. The first applicant would not be able to go to Afghanistan because of the security situation there. Moreover, she had no network in Azerbaijan to support her or her child. The second applicant suffered from depression and claimed that if he were separated from his partner and their future child, there was a risk that his health would deteriorate seriously. Furthermore, he alleged that he had converted to Christianity in Sweden and that it would be very dangerous for him to return to Afghanistan. He could not go to Azerbaijan for several reasons: he would not be able to find work there and the state did not accept or provide any assistance to refugees. The applicants submitted, inter alia, the second applicant’s baptism certificate dated 9 April 2012, which stated that he had confessed faith in the Gospel and its teachings. 14. On 1 November 2012 the Migration Board found that no such new circumstances had been presented which could justify granting residence permits to the applicants. It first noted that the applicants had been in Sweden for a relatively short period of time and considered that they did not have a strong connection to Sweden. The Board also noted that the applicants had not submitted any medical certificates substantiating that the second applicant had a serious health condition. Furthermore, the Board observed that the applicants’ family situation had emerged after the decisions to send them back to their native countries, when they had both been well aware that the future of their family life in Sweden was highly uncertain. In its view, the difficulties of maintaining family life under such circumstances did not constitute a reason to grant them residence permits. As regards the second applicant’s conversion, the Board considered that the fact that he had converted after the Board’s decision to return him to Afghanistan suggested that his conversion was not authentic and genuine. The baptism certificate submitted did not change the Board’s view in this regard. The Board further noted that the second applicant had submitted no information about why he had converted or regarding other circumstances concerning the conversion. 15. The applicants appealed to the Migration Court, maintaining their claims and adding the following. The second applicant had now been a practising Christian for about a year and he had been baptised seven months earlier. His faith was genuine. The Migration Board had not properly investigated his conversion and the case should therefore be remitted to the Board. If returned to Afghanistan, he would risk serious punishment. The applicants had been living together since April 2012 and were expecting their first child in April 2013. In the light of this, they should be granted residence permits in Sweden since there was no other country in which they could live together. 16. On 3 December 2012 the Migration Court rejected the appeal as concerned the second applicant’s conversion and dismissed the remainder of the appeal as the Migration Board’s decision in that part was final. As concerned the conversion, the court found that the second applicant’s story was general in nature and that it did not describe the considerations and thoughts which had led to his conversion. 17. The applicants appealed to the Migration Court of Appeal which, on 4 January 2013, refused leave to appeal. 18. Subsequently, the applicants submitted a copy of a medical record concerning both of them. The Migration Board considered this as a request for reconsideration of their case. 19. On 6 December 2012 the Migration Board once again found that no such new circumstances had been presented that could lead to the granting of residence permits. It noted that, according to the medical record, the second applicant had claimed that he was suffering from psychological problems and difficulties sleeping. However, the Board found that no medical certificate had been submitted showing any need for medical care and that these problems did not constitute grounds to stay the expulsion orders. 20. On 13 February 2013 the applicants lodged their application with the Court and requested it to apply Rule 39 of the Rules of the Court in order to stop the enforcement of their expulsion. They stated the following. The second applicant risked being punished or killed due to the fact that he had converted to Christianity. He had been wanted by the Taliban before he fled from Afghanistan. Furthermore, the applicants wanted to live together as a family and the second applicant wanted to raise his future son as a Christian. A removal to their native countries would mean the end of their lives. 21. In support of their claims the applicants submitted, inter alia, the following: A copy of a certificate regarding the second applicant, dated 27 December 2012, in which a pastor stated that the second applicant was a member of his congregation. A copy of a medical certificate dated 2 January 2013, in which a chief physician at a psychiatric clinic stated that the applicants were being treated at the clinic. As regards the first applicant, she was suffering from a severe form of Post-Traumatic Stress Disorder (PTSD) called DESNOS (disorder of extreme stress, not otherwise specified). Everyday situations reminded her of traumatic experiences in the past. She was anxiety-ridden but not deeply depressed. As regards the second applicant, he was anxious about their difficult situation. An undated copy of a letter, allegedly written by the second applicant, in which he described Christianity as a religion of peace and love and Islam as a religion of the opposite. 22. On 26 February 2013 the Acting President of the Section decided to grant priority to the above application and to ask the Swedish Government for factual information regarding, inter alia, the possibility to send the second applicant to Azerbaijan and the presence of organisations in Azerbaijan which provide shelters for women seeking protection. 23. In their response, dated 13 March 2013, the Government submitted that, according to Chapter 12, section 4, paragraph 3, of the Aliens Act (Utlänningslagen, 2005:716), an alien who is to be refused entry or expelled may always be sent to a country where the alien shows that he or she can be received. This rule is complementary to the provisions that otherwise apply and can only serve as a basis for expulsion to a country to which the alien wants to go (travaux préparatoires, 2003/04:50, p.77). In the light of this, the Government considered that it was possible to send the second applicant to Azerbaijan together with the first applicant, if he agreed to this and showed that he could be received there. Moreover, if he was to leave Sweden voluntarily, as he was supposed to, he could travel to any country of his choosing. 24. As regards the formalities and requirements which must be observed and complied with in order to send the second applicant to Azerbaijan, the Government stated the following. The Migration Board had clarified that in order for the migration authorities to send an alien to a country other than specified in the expulsion order, the alien was normally required to have a residence permit for the country to which he or she wished to travel. Moreover, it should not be substantially more expensive or result in delay to expel the alien to another country than the one specified in the decision. The Government had consulted the relevant and accessible Azerbaijani legislation and drawn the conclusion that it was possible for a relative or a spouse of an Azerbaijani citizen to be granted a residence permit in Azerbaijan. Azerbaijan had an embassy in Stockholm where the applicants should be able to obtain further information and submit an application. It should also be possible for the second applicant to acquire an Azerbaijani visa. It appeared that he could then travel to Azerbaijan and apply for a residence permit there. This could be an option, as long as the applicants made the travel arrangements themselves. 25. Furthermore, the Government noted that in order to apply for an Azerbaijani visa or residence permit, the second applicant had to have a passport. If the second applicant did not have a passport, he should be able to acquire one at an Afghan embassy, for example at the embassy in Oslo. According to information from the Norwegian migration authorities, the Afghan embassy in Oslo normally granted passports to applicants who had a tazkira. As regards the first applicant, she should be able to apply for a passport or other identity documents at the Azerbaijani embassy in Stockholm. 26. As regards the presence of various organisations in Azerbaijan, and in Baku in particular, which provide shelters for women seeking protection, the Government had consulted a number of reports relating to the situation for women in Azerbaijan. The reports mentioned, inter alia, a few government-operated centres for victims of trafficking and two shelters for women in the Baku area that were run by non-governmental organisations. 27. In their response, dated 26 March 2013, the applicants submitted that it was not a good option, from a humanitarian point of view, to send them to Azerbaijan. The first applicant had had a tragic childhood there. Furthermore, both applicants suffered from psychiatric problems and both had been hospitalised in Sweden for a considerable time. Their child would be born very soon. 28. The applicants’ son was born on 12 April 2013. 29. The basic 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, as amended on 1 January 2010. 30. Chapter 5, section 1, of the Aliens Act stipulates than 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. According to Chapter 4, section 1, of the Aliens 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, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2, of the Aliens Act). 31. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6, of the Aliens Act). 32. 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). 33. 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 enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. 34. If a residence permit cannot be granted under Chapter 12, section 18, of the Aliens Act, 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 reexamination (Chapter 12, section 19, of the Aliens Act). 35. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9, of the Aliens Act). However, no appeal lies against a decision by the Migration Board not to grant a residence permit under Chapter 12, section 18, of the Aliens Act (Chapter 14 of the Aliens Act, a contrario).
| 0
|
train
|
001-23033
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,003
|
SAARINEN v. FINLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Juhani Saarinen, is a Finnish national, who was born in 1930 and lives in Kotka. Until 31 December 1995, at the time of retirement a person was granted, inter alia, (a) an employment pension which was counted on the basis of his or her salary earned prior to the retirement, amounting to a maximum of 66 per cent of that salary, and (b) a national pension’s basic amount (kansaneläkkeen pohjaosa, folkpensionens basdel), if the person was entitled thereto on the basis of his age and/or number of years of employment. From 1955 to 1957, employees were obliged by law to deposit part of their salaries in individual accounts kept by the Social Insurance Institution for the purpose of accumulating employment pensions for their retirement. From 1957 onwards these contributions were no longer deposited on accounts earmarked for the employees themselves but went into the general pension fund. The two parts of the pension (the above-mentioned (a) and (b)) were combined together with the result that a pensioner’s employment pension was reduced by the amount of the national pension’s basic amount so that the total amount of the pensions did not exceed the maximum limit of 66 per cent of his salary. The national pension’s basic amount was granted to all persons entitled to it without their requesting it (although it was apparently possible to refuse it), reducing automatically the amount of the employment pension. In 1995 the National Pension Act was amended as a budgetary savings measure to the effect that, as from 1 January 1996 onwards, the national pension such as the old-age pension was to be replaced by a pension calculated with reference to new criteria. Those whose total income in the form of other pensions and various entitlements exceeded certain ceilings would no longer be entitled to a national pension. In such a case the so-called basic amount of their national pension would be reduced by 20 per cent annually between 1996 and 2001, when payment thereof would cease (Act no. 1491/1995). Following a public debate on the matter the Finnish Parliament passed a Compensation Act (635/2002) on 18 June 2002, according to which pensioners whose employment pension has been twice reduced on the basis of their national pension’s basic amount, are entitled to receive a compensation for their loss as from 1 October 2003 onwards. The compensatory amount will be between 5 and 50 euros per month, depending on the amount of the pension at issue. On 13 March 1990 the applicant was granted an employment pension as from 1 April 1990 onwards. The same day he was also granted, without requesting it, a national pension’s basic amount which was FIM 365 (approximately 61 euros) per month. The two parts of his pension were considered together with the result that his employment pension was reduced by FIM 365 per month, since the total amount of the pensions was not to exceed the maximum limit (66 per cent of the salary on which the pension was based ). In 1993 the applicant’s pension was changed into an old-age pension. In 1996, after some index-linked increases had been granted to the applicant’s pension, his national pension’s basic amount was FIM 445 (approximately 75 euros per month). As a result of the entry into force of the Act 1491/1995, the applicant’s national pension’s basic amount was again reduced until it ceased to exist in 2001. The applicant now receives only a pension which is about 60 per cent of the salary on which his pension was originally based. The applicant has used all domestic remedies (three appeal instances decisions submitted, the final ones given by the Insurance Court in October 2000). According to the decisions of the domestic courts, it is impossible to revoke the reduction of the pensions which is based on the amendment to the National Pension Act as the courts cannot override a law. As a result of the Compensation Act of 2002, the applicant in the present case will be awarded the full 50 euros per month in compensation for his loss as from 1 October 2003 onwards.
| 0
|
train
|
001-79996
|
ENG
|
GBR
|
CHAMBER
| 2,007
|
CASE OF COPLAND v. THE UNITED KINGDOM
| 1
|
Violation of Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Rait Maruste;Stanislav Pavlovschi
|
6. The applicant was born in 1950 and lives in Llanelli, Wales. 7. In 1991 the applicant was employed by Carmarthenshire College (“the College”). The College is a statutory body administered by the State and possessing powers under sections 18 and 19 of the Further and Higher Education Act 1992 relating to the provision of further and higher education. 8. In 1995 the applicant became the personal assistant to the College Principal (“the CP”) and from the end of 1995 she was required to work closely with the newly appointed Deputy Principal (“the DP”). 9. In about July 1998, whilst on annual leave, the applicant visited another campus of the College with a male director. She subsequently became aware that the DP had contacted that campus to enquire about her visit and understood that he was suggesting an improper relationship between her and the director. 10. During her employment, the applicant’s telephone, e-mail and Internet usage were subjected to monitoring at the DP’s instigation. According to the Government, this monitoring took place in order to ascertain whether the applicant was making excessive use of College facilities for personal purposes. The Government stated that the monitoring of telephone usage consisted of analysis of the College telephone bills showing telephone numbers called, the dates and times of the calls, and their length and cost. The applicant also believed that there had been detailed and comprehensive logging of the length of calls, the number of calls received and made, and the telephone numbers of individuals calling her. She stated that on at least one occasion the DP became aware of the name of an individual with whom she had exchanged incoming and outgoing telephone calls. The Government submitted that the monitoring of telephone usage took place for a few months up to about 22 November 1999. The applicant contended that her telephone usage was monitored over a period of about eighteen months until November 1999. 11. The applicant’s Internet usage was also monitored by the DP. The Government accepted that this monitoring took the form of analysing the websites visited, the times and dates of the visits to the websites and their duration, and that this monitoring took place from October to November 1999. The applicant did not comment on the manner in which her Internet usage was monitored but submitted that it took place over a much longer period of time than the Government had admitted. 12. In November 1999 the applicant became aware that enquiries were being made into her use of e-mail at work when her step-daughter was contacted by the College and asked to supply information about e-mails that she had sent to the College. The applicant wrote to the CP to ask whether there was a general investigation taking place or whether her e-mails only were being investigated. By an e-mail of 24 November 1999, the CP advised the applicant that, whilst all e-mail activity was logged, the information technology department of the College was investigating only her e-mails, following a request by the DP. 13. The Government submitted that monitoring of e-mails took the form of analysis of e-mail addresses and dates and times at which e-mails were sent and that the monitoring occurred for a few months prior to 22 November 1999. According to the applicant, the monitoring of e-mails occurred for at least six months from May to November 1999. She provided documentary evidence in the form of printouts detailing her email usage from 14 May to 22 November 1999 which set out the date and time of emails sent from her e-mail account together with the recipients’ email addresses. 14. By a memorandum of 29 November 1999, the CP wrote to the DP to confirm the contents of a conversation they had had in the following terms: “To avoid ambiguity I felt it worthwhile to confirm my views expressed to you last week, regarding the investigation of [the applicant’s] e-mail traffic. Subsequent to [the applicant] becoming aware that someone from [the College] had been following up her e-mails, I spoke to [ST] who confirmed that this was true and had been instigated by yourself. Given the forthcoming legislation making it illegal for organisations to examine someone’s e-mail without permission, I naturally felt concerned over recent events and instructed [ST] not to carry out any further analysis. Furthermore, I asked you to do likewise and asked that any information you have of concern regarding [the applicant] be forwarded to me as a matter of priority. You indicated that you would respond positively to both requests, whilst reaffirming your concerns regarding [the applicant].” 15. There was no policy in force at the College at the material time regarding the monitoring of telephone, e-mail or Internet usage by employees. 16. In about March or April 2000 the applicant was informed by other members of staff at the College that between 1996 and late 1999 several of her activities had been monitored by the DP or those acting on his behalf. The applicant also believed that people to whom she had made calls were in turn telephoned by the DP, or those acting on his behalf, to identify the callers and the purpose of the call. She further believed that the DP became aware of a legally privileged fax that was sent by herself to her solicitors and that her personal movements, both at work and when on annual or sick leave, were the subject of surveillance. 17. The applicant provided the Court with statements from other members of staff alleging inappropriate and intrusive monitoring of their movements. The applicant, who is still employed by the College, understands that the DP has been suspended. 18. At the relevant time there was no general right to privacy in English law. 19. Since the implementation of the Human Rights Act 1998 on 2 October 2000, the courts have been required to read and give effect to primary legislation in a manner which is compatible with Convention rights so far as possible. The Act also made it unlawful for any public authority, including a court, to act in a manner which is incompatible with a Convention right unless required to do so by primary legislation, thus providing for the development of the common law in accordance with Convention rights. In the case of Douglas v. Hello! Ltd ([2001] 2 WLR 992), Lord Justice Sedley indicated that he was prepared to find that there was a qualified right to privacy under English law, but the Court of Appeal did not rule on the point. 20. The Regulation of Investigatory Powers Act 2000 (“the 2000 Act”) provided for the regulation of, inter alia, interception of communications. The Telecommunications (Lawful Business Practice) Regulations 2000 were promulgated under the 2000 Act and came into force on 24 October 2000. The Regulations set out the circumstances in which employers could record or monitor employees’ communications (such as e-mail or telephone) without the consent of either the employee or the other party to the communication. Employers were required to take reasonable steps to inform employees that their communications might be intercepted. 21. The House of Lords in Malik v. Bank of Credit and Commerce International SA ([1997] IRLR 462) confirmed that, as a matter of law, a general term is implied into each employment contract that an employer will not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In Malik, the House of Lords was concerned with the award of so-called “stigma compensation” where an ex-employee is unable to find further employment due to association with a dishonest former employer. In considering the damages that could be awarded for breach of the obligation of trust and confidence, the House was solely concerned with the payment of compensation for financial loss resulting from handicap in the labour market. Lord Nicholls expressly noted that “[f]or the present purposes I am not concerned with the exclusion of damages for injured feelings, the present case is concerned only with financial loss”. 22. In limiting the scope of the implied term of trust and confidence in Malik, Lord Steyn stated as follows: “[T]he implied mutual obligation of trust and confidence applies only where there is ‘no reasonable and proper cause’ for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation.” 23. The tort of misfeasance in public office arises when a public official has either (a) exercised his power specifically intending to injure the plaintiff, or (b) acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge or with reckless indifference to the probability of causing injury to the claimant or a class of people of which the claimant is a member (Three Rivers District Council v. Bank of England (No. 3) (HL) [2000] 2 WLR 1220). 24. At the time of the acts complained of by the applicant, the Data Protection Act 1984 (“the 1984 Act”) regulated the manner in which people and organisations that held data, known as “data holders”, processed or used those data. It provided certain actionable remedies to individuals in the event of misuse of their personal data. The 1984 Act has now been replaced by the Data Protection Act 1998. 25. Section 1 of the 1984 Act defined its terms as follows. “... (2) ’Data’ means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose. (3) ’Personal data’ means data consisting of information which relates to a living individual who can be identified from that information (or from that and other information in the possession of the data user) ... (4) ’Data subject’ means an individual who is the subject of personal data. (5) ’Data user’ means a person who holds data, and a person ‘holds’ data if – (a) the data form part of a collection of data processed or intended to be processed by or on behalf of that person as mentioned in subsection (2) above; and (b) that person ... controls the contents and use of the data comprised in the collection; and (c) the data are in the form in which they have been or are intended to be processed as mentioned in paragraph (a) ... (7) ’Processing’, in relation to data, means amending, augmenting, deleting or rearranging the data or extracting the information constituting the data and, in the case of personal data, means performing any of these operations by reference to the data subject. ... (9) ’Disclosing’, in relation to data, includes disclosing information extracted from the data ...” “1. The information to be contained in personal data shall be obtained, and personal data shall be processed, fairly and lawfully. 2. Personal data shall be held only for one or more specified and lawful purposes. ... 4. Personal data held for any purpose ... shall be adequate, relevant and not excessive in relation to that purpose or those purposes.” “(1) An individual who is the subject of personal data held by a data user ... and who suffers damage by reason of – ... (c) ... the disclosure of the data, or access having been obtained to the data, without such authority as aforesaid, shall be entitled to compensation from the data user ... for that damage and for any distress which the individual has suffered by reason of the ... disclosure or access.” 28. The 1984 Act also created the position of Data Protection Registrar, under a duty to promote the observance of the data protection principles by data users. In section 10 it created a criminal offence as follows. “(1) If the Registrar is satisfied that a registered person has contravened or is contravening any of the data protection principles he may serve him with a notice (‘an enforcement notice’) requiring him to take ... such steps as are so specified for complying with the principle or principles in question. (2) In deciding whether to serve an enforcement notice the Registrar shall consider whether the contravention has caused or is likely to cause any person damage or distress. ... (9) Any person who fails to comply with an enforcement notice shall be guilty of an offence ...”
| 1
|
train
|
001-72528
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,006
|
RIPPE v. GERMANY
| 2
|
Inadmissible
| null |
The applicant, Mr Utz Rippe, is a German national who lives in Petershagen in Germany. He was represented before the Court by Mr H. Bahr, a lawyer practising in Celle. The applicant was the managing partner of the Rippe Automatenbetriebe GmbH (henceforward referred to as “R-Company”). In 1998 the R-Company rented commercial premises from another company (“the lessor”), in order to operate its business. In October 2000 the R-Company became insolvent. By agreement of January 2001 the applicant acceded to the lease as from March 2001. As from February 2001 the R-Company got into arrear with three months’ rent. By letter of 9 May 2001 the lessor sent the R-Company a request for payment. By letter to both the R-Company and the applicant of 18 May 2001 the lessor terminated the lease without notice (fristlose Kündigung). By 23 May 2001 the applicant had paid the arrears of rent. The lessor lodged an action for eviction with the Bückeburg Regional Court (Landgericht), alleging that he had sent the applicant two requests for payment on 3 April and 5 April 2001. As the applicant contested this, the Regional Court decided to take evidence by hearing the lessor’s secretary as a witness. By judgment of 4 February 2002 the Regional Court, following a public hearing, ordered the applicant’s eviction from the premises. That court found that the lessor had proved that he had posted the letters to the applicant. It did not attach credence to the applicant’s claim that he had not received these letters. By letter of 7 May 2002 the applicant, who was represented by counsel, submitted his reasons for appeal, claiming that the Regional Court’s assessment of the evidence was contrary to the case-law of the Federal Court of Justice. According to the applicant, the mere fact that the witness had posted the letters to the applicant did not suffice to prove that he had actually received them. In this respect, he submitted several possibilities as to how the letters could have been lost before reaching their destination. By letter of 16 May 2002 the Celle Court of Appeal (Oberlandesgericht) informed the applicant of its intention to reject the appeal without a hearing pursuant to section 522 § 2 of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). It further invited the applicant to submit written comments within two weeks. The Court of Appeal, following a preliminary assessment, found that the applicant’s appeal lacked prospect of success. It considered that, according to the terms of the tenancy agreement, it would have been sufficient to inform the applicant about the arrear payments. The applicant had been duly informed by letter of 9 May 2001. Even though this letter had not been directed to the applicant, but to the R-Company, the applicant had undisputedly received it. In any event, the appeal lacked prospect of success as the Regional Court’s assessment of the facts had neither been contrary to the law nor to the case-law of the Federal Court of Justice. The applicant had not submitted that the Regional Court had wrongly established the facts. By letter of 4 June 2002 the applicant requested the Court of Appeal to abstain from applying section 522 § 2 of the Code of Civil Procedure and to hold an oral hearing on his appeal. He stated that section 522 § 2 should only be applied if an appeal was manifestly ill-founded. Referring to the Court’s case-law, the applicant further pointed out that Article 6 § 1 of the Convention granted a right to an oral hearing in appeal proceedings, which could only be dispensed with if this was justified by the special features of the proceedings involved. The Court of Appeal had based its letter on different facts than the Regional Court. Under these circumstances, it was necessary to hold a fresh oral hearing. The applicant further denied having gained any knowledge of the content of the letter of 9 May 2001, as he had transferred this letter unopened to the R-Company’s administrator in insolvency. He further maintained that the Regional Court’s assessment of the evidence had not been in accordance with the law. On 6 June 2002 the Court of Appeal, by unanimous decision, rejected the applicant’s appeal pursuant to section 522 § 2 of the Code of Civil Procedure. The Court of Appeal stated that the appeal had no prospect of success, that the matter at issue was not of fundamental importance, and that is was not necessary to allow the appeal in order to safeguard a consistent application of the law. It found, first, that section 522 § 2 did not require that an appeal was manifestly ill-founded. Notwithstanding, the applicant’s appeal was manifestly ill-founded. The Court of Appeal noted that the applicant had conceded having received the letter of 9 May 2001. By sending this letter, the lessor, who did not know about the R-Company’s insolvency, had taken the necessary steps to inform the applicant about the arrears of rent. It did not matter whether the applicant had gained knowledge of the content of that letter, as he had been in a position to do so. Referring to the reasons set out in its letter of 16 May 2002, the Court of Appeal confirmed that the Regional Court’s assessment of the evidence had not been contrary to the law. With respect to Article 6 of the Convention, the Court of Appeal found as follows: “This provision [section 522 § 2 of the Code of Civil Procedure] is closely linked to the examination of the admissibility of the appeal by the court, as can be seen in the context with section 522 § 1. Accordingly, the applicant’s references to Article 6 of the Convention are not suited to compel the Senate to hold an oral hearing irrespectively of the appeal’s prospect of success. Within the ambit of Article 6, the necessity of an oral hearing in appeal proceedings does not arise, if only the admissibility of the appeal is at issue, if the applicant’s grounds of appeal are irrelevant for the decision or if the appeal can adequately be dealt with on the basis of the content of the case-file (see Zöller/Gummer, Commentary to the Code of Civil Procedure, 23rd ed., § 522, marginal note 36). It follows that Article 6 of the Convention – contrary to the defendant’s point of view – does not require a public hearing in every case in which an appeal is not manifestly ill-founded, but leaves sufficient room for the application of section 522 § 2 of the Code of Civil Procedure. It does not require a specific degree of lack of prospect of success.” On 15 July 2002 the applicant lodged a constitutional complaint alleging a violation of his rights under the German Constitution and under Article 6 of the Convention. He further requested the Federal Constitutional Court to suspend his eviction from the business premises by interim measure. By decision of 5 August 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s complaint for adjudication for lack of prospect of success. That court found that the Court of Appeal’s interpretation of the law did not violate the applicant’s constitutional rights. In particular, it neither violated the applicant’s right that his case be adjudicated by the competent judge (Recht auf den gesetzlichen Richter), nor was the limitation of access to the appeal proceedings disproportionate. This decision was served on the applicant’s counsel on 12 August 2002. According to the former Code of Civil Procedure, appeal proceedings against a decision given by a court of first instance allowed a complete review of both facts and law. On 1 January 2002, reform legislation entered into force (Zivilprozess-Reformgesetz), which was aimed at facilitating and thus expediting civil proceedings, inter alia by strengthening the position of the first instance courts and by unburdening second instance proceedings. Following this legislation, appeal proceedings are primarily devised as a means of controlling and rectifying errors made by the courts of first instance. The relevant provisions as in force since January 2002 read as follows: Section 513 Grounds of appeal “(1) An appeal can only be lodged on the ground that the decision is based on a violation of the law...or that the facts which are relevant according to section 529 justify a different decision. ...” Section 522 Examination of admissibility, decision on rejection “(1) The Court of Appeal has to establish on its own motion whether the appeal is admissible (statthaft) and whether it has been lodged in accordance with the formalities and time-limits as prescribed by law. If any of these prerequisites is lacking, the appeal has to be rejected as being inadmissible. The decision is taken by court-order which is subject to an appeal on points of law. (2) The Court of Appeal promptly rejects the appeal by unanimous decision if it is convinced that 1. the appeal does not have prospect of success, 2. the legal matter is not of fundamental importance and 3. the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the court of appeal. The court of appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and has to give the appellant the opportunity to submit observations within a set time-limit. The decision pursuant to sentence one has to be reasoned, if the reasons for the rejection are not included in the letter of information pursuant to sentence two. (3) The decision given pursuant to paragraph two, sentence one is not subject to an appeal. “ Section 529 Scope of examination by the Court of Appeal “(1) The Court of Appeal has to base its hearing and decision on: 1. the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts which warrant a fresh establishment; 2. new facts, as long as it is admissible to consider these. ...” In case the Court of Appeal rejects an appeal by judgment following an oral hearing, the appellant may, subject to certain provisions, file a request to be granted leave to appeal on points of law to the Federal Court of Justice.
| 0
|
train
|
001-80312
|
ENG
|
NLD
|
CHAMBER
| 2,007
|
CASE OF KONSTATINOV v. THE NETHERLANDS
| 3
|
No violation of Art. 8
|
David Thór Björgvinsson
|
5. The applicant, who is of Roma origin, was born in 1964 in Rgotina (Serbia) and is currently living in 's-Hertogenbosch. She is also known to the Netherlands authorities under the names of Arenka Sarkevic, Violetta Sarof, Harenka Sarof and Harenka Sharkevits. 6. As a young child and after the death of her mother, the applicant left Serbia with her father to travel. In 1986, the applicant contracted a traditional Roma marriage with Mr G., who was born in Rome in 1967 and who was living in the Netherlands where he had been granted a residence permit in 1977. His nationality, if any, is unknown. 7. On 16 February 1987, the applicant – under the name Arenka Sarkevic – was expelled from the Netherlands to Germany for unspecified reasons. 8. On 25 October 1988, Mr G. was granted a Netherlands permanent residence permit (vestigingsvergunning) which he holds to date. On 26 October 1988, the applicant – under the name Arenka Sarkevic – applied for a Netherlands residence permit for the purposes of stay with her partner Mr G. in the Netherlands. In April 1989, the applicant and Mr G. had a son named L.G. 9. On 13 February 1990, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's request for a residence permit, as Mr G. did not meet the minimum income requirement under the applicable immigration rules, and as it had not been demonstrated that he was actually cohabiting with the applicant. After a request for reconsideration (herzieningsverzoek) filed on 13 March 1990 was denied suspensive effect as regards the applicant's removal from the Netherlands, the applicant left the Netherlands for an unknown destination on or around 6 December 1990. 10. On 1 June 1991, the applicant returned to the Netherlands where, on 10 September 1991, she married Mr G. under Netherlands civil law. On 1 November 1991, submitting a passport in the name of Jadranka Konstatinov – issued on 18 June 1991 in Pančevo (Serbia) by the authorities of the Socialist Federal Republic of Yugoslavia and valid until 18 June 1996 –, the applicant filed a request for a Netherlands residence permit for the purpose of stay with her spouse in the Netherlands. However, this application for a residence permit was not considered for seven years. 11. Between 4 September 1992 and 23 March 1998, the applicant was convicted on six occasions of (aggravated) theft and/or robbery and sentenced to terms of imprisonment varying from six weeks to twelve months. 12. On 19 August 1998, the applicant was heard by the police in connection with the intention to impose an exclusion order on her by declaring her an undesirable alien (ongewenst vreemdeling). 13. In a letter of 5 November 1998, in which he referred to previous letters sent on 8 May 1998 and 27 July 1998, the applicant's lawyer complained to the Deputy Minister of Justice about the failure to determine the applicant's request for a residence permit. 14. By letter of 18 November 1998, the Deputy Minister informed the applicant's lawyer that no letters dated 8 May 1998 and 27 July 1998 had been received, that the applicant's request of 1 November 1991 had been mislaid due to an internal office removal, that the applicant had been invited on 5 February 1998 to report to the Aliens Police (Vreemdelingendienst) to provide fresh information concerning her request for admission to the Netherlands, and that on 19 August 1998 she had been heard in connection with the intention to impose an exclusion order. The Deputy Minister admitted that the determination of the applicant's request for admission had lasted considerably longer than desirable and apologised for this delay. The applicant's case would now be determined within two weeks. 15. On 27 November 1998, the Deputy Minister gave a decision rejecting the applicant's request for a residence permit. The Deputy Minister noted at the outset that the applicant did not hold the required, valid provisional residence visa (machtiging tot voorlopig verblijf) issued by a Netherlands diplomatic or consular mission in the applicant's country of origin. Further noting that Mr G.'s sole income consisted of benefits under the General Welfare Act (Algemene Bijstandswet), the Deputy Minister held that Mr G. did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement. Noting that the applicant had been convicted and sentenced to imprisonment on several occasions, the Deputy Minister also found that public-order considerations opposed granting her request for a residence permit. In so far as the applicant had relied on the so-called “three years policy” (driejarenbeleid), according to which a residence title could be granted if a request for a residence permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record, the Deputy Minister held that the applicant was not eligible for a residence permit under this policy given her criminal record which comprised various offences committed between 1991 and 1994, i.e. pending the running of the three year period. In the same decision, the Deputy Minister declared the applicant an undesirable alien, entailing a five year exclusion order, on account of her criminal record in the Netherlands. As regards Article 8 of the Convention, the Deputy Minister considered that the applicant's personal interests in exercising her family life in the Netherlands were outweighed by those of the Netherlands authorities in protecting public order and preventing crime. 16. On 30 November 1998, the applicant lodged an objection (bezwaar) against this decision. On the same day, she applied to the Regional Court (arrondissementsrechtbank) of The Hague for a stay of expulsion pending the final outcome of the proceedings. 17. On 3 March 1999, after a hearing held on 6 January 1999, the Regional Court of The Hague sitting in 's-Hertogenbosch accepted the applicant's request for a provisional measure and ordered the applicant's expulsion stayed until four weeks after the Deputy Minister had given a decision on the objection. Having noted the seven years that had elapsed between the filing of the applicant's request for a residence permit and the first decision taken on that request, the Regional Court failed to see what interest the Deputy Minister had in not allowing the applicant to await the outcome of her objection in the Netherlands. 18. On 10 August 2000 the applicant appealed to the Regional Court of The Hague against the notional dismissal (fictieve weigering) of her objection, the Deputy Minister not having given a decision by that date. On 10 January 2001 the Regional Court accepted the applicant's appeal and ordered the Deputy Minister to give a decision within six weeks or within ten weeks if there was to be a hearing before an advisory board. 19. On 29 May 2001 the applicant was heard on her objection before the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken). She stated, among other things, that her son L.G. had been suffering from asthma since his birth, and that since her last conviction in 1995 she no longer had had any dealings with the Netherlands criminal justice authorities. Her lawyer referred to a policy, set out in a letter dated 10 January 1984 from the Deputy Minister of Justice and which had still been in force in 1991, under which requests for residence permits lodged by Roma for marriage purposes were given favourable consideration. 20. The Deputy Minister gave a decision on 12 July 2001. The objection was dismissed on the ground that Mr G. (still) did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement. In addition, when heard on 29 May 2001, the applicant had denied that she had had recent dealings with the Netherlands criminal justice system, whereas in reality she had amassed further convictions of theft since 1998 and had been arrested for shoplifting in May 2001; from this it could be concluded that the applicant was a danger to public order. The applicant's criminal record also rendered her ineligible for a residence permit under the three years policy. The Deputy Minister further rejected the applicant's argument that – given the uncertainty about her actual citizenship – she should be regarded as a stateless person, as well as her arguments under Article 8 of the Convention. 21. The applicant lodged an appeal against this decision to the Regional Court of The Hague, together with an application for a provisional measure, i.e. a stay of deportation. On 18 November 2002, following a hearing held on 10 October 2002, the Regional Court endorsed the decision of the Deputy Minister and dismissed the appeal. As regards Article 8 of the Convention, it held: “It is not in dispute that there is 'family life' between the appellant, her husband and child. There is no question of an interference with this family life within the meaning of the second paragraph of Article 8 of the Convention as the impugned decision does not entail the withdrawal of a residence title that enabled her to exercise that family life. The remaining question is whether [the Netherlands authorities] are under a positive obligation under Article 8 to enable the appellant to exercise her family life in the Netherlands. In order to determine the existence of such a positive obligation, a balancing exercise must be carried out – on the basis of reasonableness – between the interests of the person concerned and those of society as a whole. The Regional Court accepts the finding of [the Deputy Minister] that the appellant's interests are outweighed by the public interests pursued by [the Netherlands authorities]. In this balancing exercise, the Regional Court puts first that the countless, ever recurring antecedents of both the appellant and her husband weigh very heavily. The Regional Court further considers it of importance that the family's subsistence needs are met by public funds and that none of the family members holds Netherlands citizenship. As to the alleged statelessness of the appellant, the Regional Court notes that she stated at the outset of the present proceedings that she was holding Yugoslav citizenship and submitted a Yugoslav passport. It was only later that she declared to be stateless. It appears from the fax message of 28 June 2001 of the 's-Hertogenbosch Aliens Police that the appellant presented herself in order to obtain the return of her Yugoslav passport for the purpose of having her son registered in this passport. It is further relevant that the appellant and her son are registered under the above-cited citizenship in the Municipal Personal Records Database (Gemeentelijke Basisadministratie). For the above reasons, the Regional Court is of the opinion that the alleged statelessness of the appellant and her son has not been established and that it has not been demonstrated that the appellant's son could not follow her to the country of origin. According to the data from the Municipal Personal Records Database, the citizenship of the appellant's husband is unknown. [Pursuant to the relevant immigration rules], where it is registered in respect of an alien that the citizenship cannot be determined, or where – such as in the instant case – in the category citizenship the standard value 0000 ('unknown') is recorded, statelessness has not been established. Noting this as well as the fact that also the alleged statelessness of the appellant has by no means been established, the Regional Court does not find it demonstrated that the appellant's husband is stateless. As it has neither appeared that he is a recognised refugee, no objective obstacles have appeared for exercising family life in the Federal Republic of Yugoslavia or at least outside of the Netherlands. As an exclusion order has also been imposed on the appellant, the impugned decision does to that extent entail interference with the family life between the appellant, her husband and son. In order to determine whether that interference is justified under the second paragraph of Article 8 of the Convention, [the Deputy Minister] must strike a reasonable balance between the interests of the individual and of society as a whole. In this, the Regional Court refers to the weighty arguments which it has found decisive in the above balancing of [competing] interests. The Regional Court finds that these also justify the interference with the family life [at issue].” Also the applicant's request for a provisional measure was rejected. No further appeal lay against this ruling. 22. As of 13 February 2004, and as the applicant was apparently no longer living at the address she had given to the Netherlands authorities who were unaware of her whereabouts, the applicant was registered as having left for an unknown destination. On 2 September 2005, the applicant's son L.G. was granted a Netherlands residence permit for the purpose of stay with his father, valid from 28 March 2001 until 28 March 2006. This residence permit was subsequently prolonged until 28 March 2011. 23. The applicant and her family are reportedly living in very reduced circumstances. Mr G. is still unemployed, and receives non-contributory general welfare benefits as a single parent, the applicant's residence in the Netherlands not being recognised as legal. 24. The admission, residence and expulsion of aliens were regulated at the material time by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were set out in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire; a body of directives drawn up and published by the Ministry of Justice). 25. On 1 April 2001, the Aliens Act 2000 entered into force – replacing the Aliens Act 1965 – along with a new Aliens Decree, a new Regulation on Aliens and new Implementation Guidelines. 26. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit. 27. The Government pursue a restrictive immigration policy owing to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. 28. The admission policy for family reunion purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines. A spouse is in principle eligible for family reunion, if certain further conditions (relating to matters such as public policy and means of subsistence) are met. General welfare benefits are not accepted as constituting (a part of the) means of subsistence within the meaning of the immigration rules. 29. According to a letter dated 10 January 1984 by the Deputy Minister of Justice, the admission to the Netherlands of foreign marital partners of persons of Roma origin living in the Netherlands was subject to the same conditions as for other foreign marital partners seeking admission for family formation (gezinsvorming), namely: “a. it concerns a marriage on the basis of which residence can be granted. This requirement entails, inter alia, that it should concern a marriage valid under Netherlands (international) private law. Marriages concluded by partners younger than 16 years are not recognised in the Netherlands; b. the partner living in the Netherlands must hold a valid Netherlands residence title, have sufficient means of subsistence and suitable housing; c. the foreign marital partner must not represent a danger for public peace, public order or national security.” This letter further specifies that admission is refused when one or more of these conditions are not met unless special facts or circumstances constitute a compelling reason of a humanitarian nature warranting admission nevertheless. 30. Under Section 21 of the 1965 Aliens Act, replaced on 1 April 2001 by Section 67 of the Aliens Act 2000, an exclusion order may be imposed on an alien when he or she has been convicted of an offence punishable by a prison sentence of three years or more. 31. According to Chapter A5/6.4 of the 1965 Aliens Act Implementation Guidelines and Chapter A3/4.2.2 of the 2000 Aliens Act Implementation Guidelines, an exclusion order shall – upon a request thereto from the person concerned – be lifted after a defined number of years, depending on the grounds on which basis the decision was taken. 32. Section 197 of the Criminal Code (Wetboek van Strafrecht) provides that staying in the Netherlands while knowing that an exclusion order has been imposed constitutes a criminal offence punishable by up to six months' imprisonment or a fine of up to 4,500 euros (EUR). 33. Under the relevant provisions of the Criminal Code, theft attracts a prison sentence of up to four years (Section 310), aggravated theft and depending on the circumstances in which it was committed, a prison sentence of up to six or nine years (Section 311), and robbery a prison sentence of up to nine, twelve or fifteen years, depending on the circumstances in which it was committed and whether it had resulted in death (Section 312).
| 0
|
train
|
001-61762
|
ENG
|
ITA
|
CHAMBER
| 2,004
|
CASE OF SOMOGYI v. ITALY
| 1
|
Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
| null |
8. The applicant was born in 1951 and is at present detained in Tolmezzo Prison, Udine. 9. In the course of criminal proceedings concerning an arms trafficking charge, the Rimini preliminary investigations judge set down the preliminary hearing for 23 April 1998. 10. On 30 October 1997 he ordered the notice of the date of the hearing, translated into Hungarian and accompanied by an invitation to appoint a legal representative, to be served by post on the accused, a Hungarian national living in Hungary named Thamas Somogyi, who was born in Miskolc on 23 October 1953. The reply slip acknowledging receipt of the notice reached the Rimini District Court's registry bearing a signature which, according to the applicant, was not his. He asserted that there was a difference between that signature and the one in his passport. Moreover, the forename of the signatory was “Thamas” and not “Tamas”. 11. As the defendant did not appear at the preliminary hearing, he was declared to be wilfully seeking to evade trial (contumace) and the court appointed a lawyer, Mr G., to assist him. From that point on, all notifications of procedural steps were served on Mr G. 12. Mr G. did not plead the nullity of the notice of the date of the preliminary hearing. An order was then made committing Thamas Somogyi for trial. 13. In a judgment of 22 June 1999, the Rimini District Court sentenced the accused to eight years' imprisonment and a fine of 2,000,000 Italian lire (approximately 1,032 euros). 14. That decision was grounded on statements made by certain persons facing charges in related proceedings, particularly a Mrs M. and the S. brothers, corroborated by other evidence. The text of the judgment did not indicate whether the persons in question had recognised the applicant on a photograph or if they had identified him in their statements purely on the basis of his name or personal information they had about him. The Rimini District Court merely said that the applicant had been “recognised and identified”. It further observed that, in view of the gravity of the offences he was charged with and the fact that he had constantly refused to give his version of the facts, he could not be granted the benefit of any extenuating circumstance. 15. The judgment of 22 June 1999 was served on Mr G. 16. On 30 October 1999 the Rimini District Court, having noted that the judgment of 22 June 1999 had become final, ordered the arrest of Mr Thamas Somogyi. 17. On 15 August 2000 the Austrian police arrested the applicant (Tamas Somogyi, born in Budapest on 19 October 1951) and notified the Italian authorities. 18. The Italian authorities opened an investigation which led to the finding that the person convicted on 22 June 1999 was in fact the applicant. 19. In a decision of 17 August 2000, the Rimini District Court ordered that the judgment of 22 June 1999 be rectified by insertion of the applicant's forename and his date and place of birth in place of the information originally recorded. That decision was served on Mr G. 20. The applicant was then extradited from Austria to Italy, where he was deprived of his liberty in execution of the judgment of 22 June 1999. 21. On a date which has not been specified he applied to the Rimini District Court under Article 175 of the Code of Criminal Procedure (“the CCP”), asking it to reopen the time allowed for an appeal (istanza di rimessione in termini). He contended that the judgment of 22 June 1999 was invalid because the summons was null and void, submitting the following arguments: (a) the identity of the person convicted had not been reliably established, so that the procedure for rectification of an error ought not to have been followed; (b) he had not been aware of the proceedings against him, and the signature on the envelope containing the notice of the date of the preliminary hearing was not his. In that connection he said that if necessary a handwriting expert should be asked to determine whether the signature was authentic and that if he had to do so he would lodge a complaint alleging forgery (querela di falso); (c) the notice concerned had not been properly served since the form of service did not comply with the provisions of the Italo-Hungarian agreement signed on 26 May 1977 (and ratified by the Italian parliament in Law no. 511 of 23 July 1980), which required all judicial communications from one of the two signatory countries addressed to individuals in the other country to take the form of a request for judicial assistance. The applicant further asserted that the form of service of the notice in question had in any case been incompatible with the relevant provisions of the Hungarian legislation concerning judicial communications by post. 22. In a decision of 24 October 2000, the Rimini District Court refused the applicant's request. 23. It observed in the first place that the judge responsible for the execution of sentences could not look into grounds for annulment arising out of the proceedings and concerning the merits of the charges. The defects complained of had in any case been cured (sanate) when the judgment of 22 June 1999 became final. 24. Secondly, the identity of the person convicted had been established through an investigation conducted by the Rimini prefecture with the assistance of the Rome branch of Interpol. Moreover, a mere inaccuracy concerning a defendant's date of birth did not constitute a ground for annulment of a judgment, and could properly be corrected via the rectification procedure. 25. Lastly, according to the case-law of the Court of Cassation, a request to reopen the time allowed for an appeal was admissible only where a defendant alleged that he had been prevented from finding out about his conviction by circumstances beyond his control. It would be inadmissible, however, if he pleaded that service of a notice was null and void. In such a case a person convicted at first instance could lodge an appeal out of time, arguing in effect that the time allowed for an appeal had not begun to run. 26. On 27 November 2000 the applicant appealed to the Bologna Court of Appeal against the judgment of 22 June 1999, submitting that as it had been based on invalid procedural steps it could not have become final. He also repeated his request for a report by a handwriting expert and his statement concerning the possibility of lodging a complaint of forgery. 27. In a judgment of 24 May 2001, deposited with the registry on 3 July 2001, the Bologna Court of Appeal declared the applicant's appeal inadmissible. It observed in particular that the evidence against the applicant had been corroborated by two persons charged in related proceedings, who had stated that the weapons in question, which had been brought in from Hungary and then used to commit an armed robbery, a murder and an attempted murder, had been bought at the applicant's house. He had then taken to Hungary a Fiat Uno car which one of the co-defendants had sold him. The District Court had correctly identified the defendant as Tamas Somogyi, a Hungarian national living at 16 Erdo Street, Szigethalom, previously convicted of rape, armed robbery and acts of vandalism. Moreover, on 27 January 1995, Italian Interpol had reported that the applicant was the son of a woman named Maria Jobbik (as his lawyer had confirmed), that he had been born on 19 October 1951 in Budapest and that he lived at “26 ... Erdo Str., Szigethalom/Hungary”. His address had also been confirmed by a co-defendant. In those circumstances, the Court of Appeal ruled that there was no doubt that the applicant was indeed the person sought by the Italian authorities. 28. The Court of Appeal went on to note that notification of the charges had been served on the applicant. An acknowledgment-of-receipt slip dated 16 January 1998 and apparently signed by the addressee proved that this information had been received. The address at which the notice had been served was in most respects correct, the only mistakes being that an extra “h” had been added to “Szigethalom” (making “Szigethalhom”) and the accent had been missed off the place name Ërdo (making Erdo). It was therefore not necessary to compare the applicant's signatures on his passport and certain company documents with the one on the return slip acknowledging receipt. 29. As regards the applicant's argument that the terms of the Italo-Hungarian agreement had not been complied with, the Court of Appeal observed that notification had been properly served on the applicant in accordance with the relevant domestic provisions, since the assistance between States provided for in the agreement was mandatory only if one of the High Contracting Parties requested it. Where, as in the present case, no explicit request to that effect had been made, domestic law had to be applied. In addition, although it was true that under Hungarian legislation registered letters could be delivered only to persons who had first been authorised and designated, it was obvious that those rules applied only where, unlike the position in the applicant's case, the person receiving the letter was not the addressee. 30. The Court of Appeal therefore ruled that, contrary to the applicant's submissions, the first-instance judgment was valid. It followed that the defendant's appeal was out of time, and therefore inadmissible pursuant to Article 591 § 1 (c) of the CCP. 31. On 30 July 2001 the applicant appealed on points of law. He repeated his request for a report by a handwriting expert and again stated that he was minded to lodge a complaint of forgery. 32. In a judgment of 23 April 2002, deposited with the registry on 23 May 2002, the Court of Cassation dismissed the applicant's appeal, holding that the reasons given by the Court of Appeal for all its disputed rulings had been logical and correct. It observed in particular that, in spite of minor clerical errors in the address, the notice sent by the Rimini preliminary investigations judge had obviously reached the person it had been sent to. There was no evidence that it had been received by someone of the same name as the applicant living at a similar or nearly identical address. 33. On 11 December 2001 the applicant asked for a retrial, alleging that certain new information showed that he should have been acquitted. It was submitted that a Hungarian journalist and writer, Mr P., had informed the applicant's lawyer that during a television programme two co-defendants had made statements establishing his client's innocence. In addition, Mr P. had asserted that in his opinion the Italian and Hungarian secret services had intervened in the applicant's case and that a Colonel K., employed in the Organised Crime Unit, knew that the convicted man was innocent. 34. In a decision of 18 July 2002, the Ancona Court of Appeal declared the application inadmissible. It pointed out that, according to the case-law of the Court of Cassation, statements by co-defendants did not justify reopening a trial. Moreover, the evidence of the persons concerned had already been taken by the lower courts. Furthermore, the opinions expressed by Mr P. about the applicant's innocence were completely subjective and unsubstantiated by any evidence. 35. According to the information supplied by the Government, identification of the applicant as an arms trafficker was based on the following evidence: – the record of an interview with Mrs M. on 20 January 1995 during which she declared that a Tamas Somogyi wished to participate in the criminal activities of the S. brothers and that he had supplied guns to them; – a handwritten note from Mrs M. giving the applicant's name and address; – a letter sent by one of the S. brothers to Mrs M. – and received by her – at the applicant's address; – a receipt for 20,000 German marks, given by Mr Somogyi to Mrs M.; – a television interview obtained by an Italian journalist on 16 February 1995 at the applicant's home, during which the applicant showed photographs of Mrs M. and one of the S. brothers; – the fact that Mrs M. had recognised the applicant's face in the video recording of the interview; and – the fact that the applicant's identity had been checked by the Italian and Austrian police at the time of his extradition, on the basis of a photograph taken from the interview broadcast on 16 February 1995. 36. The relevant passages of Article 175 §§ 2 and 3 of the Code of Criminal Procedure (“the CCP”) provide: “In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no knowledge [of it] ... without any negligence on his part or where, in the case of a conviction in absentia having been served ... on his lawyer ..., he can establish that he did not deliberately refuse to take cognisance of the procedural steps. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learned [of the judgment], failing which it shall be declared inadmissible.” 37. Article 130 of the CCP provides: “Rectification of judgments and decisions affected by errors or omissions which do not entail their nullity, and which may be corrected without requiring a substantial redrafting of the text, shall be ordered, where necessary of his or her own motion, by the judge who gave the decision in question ...” 38. Article 546 of the CCP indicates what elements a judgment must include. Sub-paragraph (b) mentions, among other details, the defendant's particulars or other information by which he can be identified. Article 547 of the CCP provides that, where one of the elements mentioned in Article 546 is missing or incomplete, the judgment must be rectified in accordance with Article 130, and that an order to that effect may be made by the judge even of his or her own motion. 39. Article 552 § 1 of the CCP also provides that a summons must include the applicant's particulars or other information by which he can be identified. Paragraph 2 adds that the decision in question is null and void if the defendant has not been reliably identified.
| 1
|
train
|
001-68541
|
ENG
|
TUR
|
CHAMBER
| 2,005
|
CASE OF TÜRKOĞLU v. TURKEY
| 3
|
No violation of Art. 2 as regards the State's alleged failure to protect the right to life;Violation of Art. 2 as regards the effectiveness of the investigation;No violation of Art. 5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
|
David Thór Björgvinsson
|
9. The facts surrounding the disappearance of the applicant's husband are disputed between the parties. 10. The applicant's husband, Talat Türkoğlu, had been arrested and tried on several occasions in the past for political offences. Plain-clothes policemen used to keep him under surveillance. 11. On 29 March 1996, Talat Türkoğlu travelled by bus from Istanbul to Edirne, a city near the border with Greece, to visit relatives. During its journey to Edirne, the bus was stopped by a car and a person from this car got on the bus. Before its arrival in Edirne the same car stopped the bus once again and the person who had got on the bus earlier returned to the car. This car followed Talat Türkoğlu until he arrived at his relatives' house in Edirne. 12. On 1 April 1996 Talat Türkoğlu left Edirne for Istanbul. He did not arrive home and has been missing since. When entering her home on the fifth day after her husband's disappearance, the applicant noticed that the front door was open and that her television had been turned on. In her opinion, the persons who entered her home had done so with her husband's key. 13. The applicant filed petitions with several administrative and judicial bodies inquiring about her husband's whereabouts. On 25 April 1996, she applied to the prosecutor at the Istanbul State Security Court and, on 26 April 1996, to the Forensic Medicine Institute and, via the Istanbul Human Rights Association, to the President, the Prime Minister, the Minister of Justice and the Human Rights Commission of the Turkish Parliament. On 2 May 1996 the applicant applied to the General Security Directorate in Ankara. On 3 May 1996 she applied to the Governor's office in Istanbul, the Fatih Public Prosecutor and the National Intelligence Agency. On 6 May 1996 she further applied to the Governor's office in Edirne. 14. On 23 September 1996 the applicant applied to the Küçükçekmece public prosecutor. She complained that she was being followed by persons, whom she believed to be plain-clothes police officers. She further complained of receiving anonymous phone calls at her home by someone who swore at her and who threatened to kill her. 15. In her letters of 10 September 1997, the applicant informed the public prosecutor and the Governor in Edirne about an important statement made by a prisoner, Kasım Açık, to some other prisoners in which he gave detailed information about the killing of Talat Türkoğlu. 16. The applicant claims that Kasım Açık was a State agent who had infiltrated the MLKP (“Marksist Leninist Komünist Parti” – a prohibited left-wing organisation) in order to gather information about their activities. Prior to that, he had participated in counter-guerrilla activities and had been involved in the killing of a number of persons. He was strangled to death in prison on 18 May 1997. According to the applicant, Kasım Açık gave this statement when he was questioned after having been arrested and detained in the Gebze prison on suspicion of being a MLKP member, an offence for which he was later tried before the Istanbul State Security Court. 17. According to this statement, which was taped and later transcribed, Talat Türkoğlu was questioned in Çadırkent by a gang, whose members included police officers, soldiers and itirafçılar. He was subsequently killed by Murat Demir and Murat İpek and his body was thrown into the river Meriç, which forms part of the border between Turkey and Greece. In her letter, the applicant further stated that Kasım Açık had drawn a sketch of the place where Talat Türkoğlu had been killed and that he had given a detailed description of the clothes Talat Türkoğlu had been wearing, in particular his shoes, wallet and wrist-watch. These details were confirmed by the applicant to be accurate. The applicant finally stated that it had to be deemed certain that Talat Türkoğlu had been killed. She requested the authorities to investigate this new evidence and to show her photographs and other documentary materials concerning unidentified corpses found in the area. 18. The applicant claims that she did not receive any reaction from the administrative and judicial bodies she petitioned other than one invitation for her and her husband's mother to give a statement and one invitation for Talat Türkoğlu's brother to identify a corpse found in the area where Talat Türkoğlu had disappeared. In this respect, the applicant pointed out that, although she and her relatives had already applied to the domestic authorities in April 1996 after Talat Türkoğlu's disappearance, the documents submitted by the Government are dated May 1998. 19. Following the receipt of the petition of 15 April 1996, the Edirne public prosecutor instigated an investigation. He contacted the Edirne Security Directorate in order to find out whether Talat Türkoğlu had been taken into police custody. On 2 May 1996 he was informed that this was not the case. As the search for Talat Türkoğlu in Edirne was unsuccessful, his photograph was transmitted to all Security Directorates in Turkey. 20. Further investigations were opened by the Bursa public prosecutor, the Edirne public prosecutor and the Direction of Criminal Affairs of the Ministry of Justice, following a request of 2 May 1996 by seventeen persons detained in Bursa to elucidate the fate of Talat Türkoğlu. 21. On 24 May 1996, in reply to a request thereto, the Edirne gendarmerie command informed the public prosecutor that their custody records were being verified and that they had started identity checks in their region. On 10 June 1996, the gendarmerie authorities informed the public prosecutor that their efforts remained unsuccessful. 22. On 9 August 1996 the Edirne public prosecutor informed the Istanbul public prosecutor about the investigation and requested information as to whether Talat Türkoğlu had been taken into police custody in Istanbul. On 14 October 1996 the Istanbul Security Directorate informed the Edirne public prosecutor that Talat Türkoğlu had not been taken into detention by the Istanbul security authorities. 23. Following the receipt of the applicant's petition of 10 September 1997 for a supplementary investigation on the basis of the statement given by Kasım Açık, the Edirne public prosecutor informed the public prosecutors of respectively Enez, Meriç, İpsala and Uzunköprü of the investigation and requested information about unidentified bodies found in the area. Talat Türkoğlu's relatives were invited to identity one body from photographs. According to them, the body found was not that of Talat Türkoğlu. 24. An investigation was conducted concerning the statements given by Kasım Açık. In this connection, it was revealed that he had been killed in the Gebze prison by his co-activists in the TDP (Türkiye Devrim Partisi – a prohibited left-wing organisation). According to a press release issued by the TDP, Kasım Açık had acted as a spy and had betrayed the organisation's confidential strategy. According to this press release, Kasım Açık had been tried under the rules of the TDP and had been sentenced to death. The statement referred to by the applicant had been taken by TDP members in the context of this “trial”. According to the Government, Kasım Açık was not a State agent and had no associations with the State and affiliated agencies. 25. In fact, it was established in the criminal proceedings brought against the suspected perpetrators of the killing of Kasım Açık that he had been killed accidentally by another prisoner, Ayhan Güneş, following a fight provoked by Kasım Açık. 26. It appeared from Kasım Açık's statement that the gang which killed the applicant's husband had also kidnapped and killed persons in the Silvan and Lice districts of Diyarbakır. Therefore, an investigation was carried out in the places named by Kasım Açık. In the course of this investigation, the prosecution authorities summoned several village mayors (muhtar) in the region of Lice and took their statements. 27. On 15 April 1996 Zeyneti Türkoğlu, the mother of Talat Türkoğlu, filed a petition with the Edirne public prosecutor in which she stated that her son had come from Istanbul to visit her, that he had left her house on 1 April 1996 and that since then he was missing. She asked the public prosecutor to search for him. 28. On 25 April 1996 the applicant filed a petition with the public prosecutor at the Istanbul State Security Court. She stated that, on the basis of a statement given by a detainee in Siirt, she suspected that her husband had been arrested and possibly taken to Siirt. However, the authorities in Siirt informed her that her husband was not detained there. She requested the prosecutor to search for her husband. 29. On 26 April 1996 the applicant informed the Istanbul Institute for Forensic Medicine that her husband had disappeared on 1 April 1996. She further stated that, in the past, her husband had been arrested many times for political reasons and that he had been followed by the police before he disappeared. She asked the Institute for Forensic Medicine to obtain her husband's fingerprints from the Security Directorate, to compare them with the fingerprints of all unidentified bodies found and to provide her with information that might be helpful. 30. On the same day the Turkish Human Rights Association addressed a letter to the President of the Republic of Turkey on behalf of the applicant, informing him of the disappearance of Talat Türkoğlu and stated that the applicant had applied to various authorities. The President was requested to order a search for Talat Türkoğlu. On the same day, the Turkish Human Rights Association sent similar letters to the Prime Minister, the Minister of the Interior and the Parliamentary Commission for Human Rights. 31. By letter of 2 May 1996, the applicant informed the Ankara Security Directorate of the disappearance of her husband and stated that she had applied to various authorities. As her husband had been apprehended, detained and tried for political offences on various occasions in the past, she deemed it plausible that he had been again apprehended and detained. She also contacted the Diyarbakır public prosecutor and State Security Court as well as the anti-terror branch of the Siirt security directorate. Her husband might have been taken there since, in a statement taken previously in Siirt, a person had implicated her husband. As the Siirt authorities had informed her that her husband's name was not mentioned in their records she had also applied to the public prosecutor's office at the Istanbul State Security Court, which informed her that her husband's name was not included in their records either. She finally stated that all of her inquiries indicated that her husband, who had no previous health or family problems, was in the hands of the MIT (Milli İstihbarat Teşkilatı; National Intelligence Agency) or the JITEM (Jandarma İstihbarat ve Terörle Mücadele; Gendarmerie Intelligence and Anti-Terror Branch), or even counterguerrillas. She stated that, in the absence of any other possibility, “it was normal to conclude that a person with a political identity, opposing the State's official policy, could be in the hands of such organisations. They are responsible for many extra-judicial killings and this is acknowledged by the State authorities from time to time. Also, the fact that someone has entered my house secretly by opening the door with a key and the fact that I have been followed makes my conclusion stronger”. She asked the Ankara Security Directorate to search for her husband. 32. On 3 May 1996 the applicant sent a similar letter to the National Intelligence Service, asking whether this service held any information about her husband's disappearance. 33. On 3 May 1996 the applicant further sent a letter to the Istanbul Governor, informing the Governor that her husband had disappeared since 1 April 1996, that in the past her husband had been arrested many times for political reasons and, prior to his disappearance, her husband had been followed by the police. She further informed the Governor that she had applied to the public prosecutor, Governor and Security Directorate in Edirne, various Edirne police stations, the hospitals and morgues in Edirne. She further stated that she had applied to the Istanbul Security Directorate, the public prosecutor at the Istanbul State Security Court, prisons and the Forensic Institute. She also mentioned having applied to the Human Rights Association, Amnesty International, Helsinki Watch and other non-governmental organisations, the Prime Minister, the Ministry of the Interior and the National Security Directorate in Ankara. She asked the Governor to investigate the matter. On 6 May 1996, the applicant sent a similar letter to the Edirne Governor. 34. On 3 May 1996 the applicant filed a further petition with the Fatih public prosecutor, requesting an investigation into her husband's disappearance. She gave a description of her husband and asked the prosecutor to compare her husband's fingerprints with those of the unidentified bodies that had been or might be found within the prosecutor's jurisdiction. She stated that her husband had been arrested in the past and that the authorities should have his fingerprints on record. 35. On 23 September 1996 the applicant filed a petition with the Küçükçekmece public prosecutor, in which she stated that she had been harassed and threatened by some persons whom she believed to be State agents. The applicant requested the prosecutor to identify these persons and to prosecute them. 36. On 10 September 1997 the applicant's lawyer filed a petition on behalf of the applicant with the Edirne public prosecutor, informing him that Talat Türkoğlu was still missing and that the applicant's petitions to various authorities and institutions had not given rise to any results. In the petition, it is further stated that it had appeared from a confession made by a counterguerrilla, Kasım Açık, that Talat Turkoğlu was questioned in Çadırkent near Edirne by a gang consisting of police officers, soldiers and itirafçılar (defected members of an illegal organisation who provide the authorities with information about that organisation) and led by Mahmut Yıldırım, alias Yeşil. According to this statement, Talat Türkoğlu had been tortured and subsequently killed by Murat Demir and Murat İpek, who later threw his body in the river Meriç. A transcript of the tape-recording of this statement given by Kasım Açık as well as a sketch map, signed by Kasım Açık, of the place where Talat Türkoğlu had been killed were joined to the petition. The public prosecutor was requested to take these elements into consideration in his investigation and to provide information about the unidentified bodies found in or around the river Meriç. The public prosecutor was further informed that Murat Demir and Murat İpek were currently being held in the Metris prison in Istanbul. 37. On the same day, the applicant's lawyer sent a similar letter to the Edirne Governor. On 10 September 1997 the applicant's lawyer also requested the Edirne Institute of Forensic Medicine to compare the fingerprints of Talat Türkoğlu with those of all unidentified bodies and to provide any information that might be helpful. 38. On 15 April 1996 the Edirne public prosecutor requested the Edirne Security Directorate to take a statement from Zeyneti Türkoğlu, to search for Talat Türkoğlu and to distribute his photograph to all police stations in Turkey. 39. On 19 April 1996 the applicant gave a statement at the Ayşekadın police station in Edirne about her husband's disappearance. She declared that her husband had a business in Istanbul selling building materials, that he had no debts and that in any event debts would not prevent him from coming home, that he had no family problems and that she feared for his life. She requested the police to conduct a search for him. 40. On the same day, Zeyneti Türkoğlu gave a statement at the Ayşekadın police station in Edirne. She declared that her son had left her home on 1 April 1996 in order to return to Istanbul and that he had since disappeared. She confirmed that on 15 April 1996 she had filed a petition with the Edirne public prosecutor. The family unsuccessfully searched for her son and she feared for his life. She described Talat Türkoğlu, who was born in 1951, as being 180 cm. tall, weighing about 78 kilogrammes, having a dark complexion and a scar on his right cheek. She requested the police to conduct a search for him. 41. On 2 May 1996 the Ayşekadın police station in Edirne transmitted the statements taken on 19 April 1996 from the applicant and Zeyneti Türkoğlu to the Edirne Security Directorate, informing the latter that police officers of the Ayşekadın station had searched for Talat Türkoğlu at certain addresses and that his photograph had been distributed to all police stations in Turkey. The Edirne Security Directorate was requested to transmit the file to the public prosecutor. 42. On 6 May 1996 the Fatih public prosecutor transmitted the applicant's petition of 3 May 1996 to the Istanbul Security Directorate, requesting the latter to investigate the matter. 43. On 24 May 1996 the Edirne Provincial gendarmerie headquarters informed the Edirne public prosecutor that Talat Türkoğlu was not detained by them, that they had searched for him and that they had set up road check points. Their search remained unsuccessful, but they would continue to search for him. 44. On 30 May 1996 the Edirne Security Directorate informed the Edirne public prosecutor that Talat Türkoğlu had been arrested in 1980 in Ankara for membership of the prohibited TKP/B party (Türkiye Komünist Partisi Birlik). He was released on bail after having been detained for 13 months and 17 days. He was arrested again for the same reasons in Istanbul in 1984. He was released on bail in 1989. Without giving any dates, the letter further states that Talat Türkoğlu had been arrested in Istanbul on a third occasion, this time for membership of the prohibited TDP party. He was detained and subsequently released on bail. On 21 September 1994 Talat Türkoğlu was arrested in Havsa (near Edirne) on a fourth occasion. He was arrested together with four other persons. On the same day, Talat Türkoğlu was handed over to the Istanbul police, who brought him to Istanbul, where he was detained on remand. The letter finally states that, since 21 September 1994 Talat Türkoğlu, who had now allegedly disappeared, had not been arrested or detained in Edirne. 45. On the same day, the Istanbul Security Directorate instructed the Fatih Security Directorate to take a statement from the applicant and to search for her husband. 46. On 10 June 1996 the Edirne Provincial gendarmerie headquarters sent a letter to the Edirne public prosecutor with the same contents as the one sent on 24 May 1996. 47. On 19 June 1996 a statement was taken from the applicant at the Fatih police station. She confirmed that on 3 May 1996 she had filed a petition with the Fatih public prosecutor and repeated the contents of this petition. The applicant provided the police with a passport photograph of her husband and his physical and personal particulars. These elements and the photograph put on record included in a pro-forma document that was transmitted to the other police forces involved in the investigation. 48. On 27 June 1996 the Fatih public prosecutor sent the same instruction as the one sent on 6 May 1996 to the Istanbul Security Directorate. 49. On 2 July 1996 the Fatih Security Directorate informed the Fatih public prosecutor that they had taken a statement from the applicant and that they were searching for her husband. 50. On 10 July 1996 on the basis of the criminal complaint filed by the applicant, the Fatih public prosecutor issued a decision not to take any criminal proceedings in relation to the disappearance of Talat Türkoğlu as no suspect had been identified. 51. In his letters of 9 August and 9 September 1996 the Edirne public prosecutor asked the Istanbul public prosecutor whether Talat Türkoğlu was being detained in Istanbul. 52. On 17 January 1997, in reply to a request of 14 January 1997 for information about the stage reached in the investigation into the disappearance of Talat Türkoğlu, the Edirne public prosecutor informed the Edirne chief public prosecutor that the investigation was still ongoing. 53. On 21 May 1997 the Edirne public prosecutor instructed the Edirne Security Directorate to search for Talat Türkoğlu and to inform all other police forces of this search. On the same day, he sent a similar letter to the Edirne gendarmerie command, including a request for the search of Talat Türkoğlu by the Edirne gendarmerie and to inform all other gendarme forces of this search. 54. On 26 May 1997, the head of the Edirne Security Directorate informed all police forces under its command of the investigation into the disappearance of Talat Türkoğlu, ordered them to request all police forces in Turkey to search for Talat Türkoğlu and to inform him of any findings. A notification to this effect was in fact addressed on 28 May 1997 to all police forces in Turkey. 55. In a report dated 26 June 1997 and signed by three gendarmes, it is stated that Talat Türkoğlu had not been detained by them in the past. The report further states that the gendarmerie forces had searched for Talat Türkoğlu in all villages within their jurisdiction and that they had found no one who had known anything about him. The report contains no indication of the gendarmerie station to which its authors were attached. 56. On 3 July 1997, in reply to the letter of 21 May 1997, the Edirne gendarmerie command informed the Edirne public prosecutor that Talat Türkoğlu had never been detained by the gendarmerie and that they had no clues as to his whereabouts. 57. By letter of 12 September 1997 the Edirne public prosecutor asked the Uzunköprü public prosecutor whether any unidentified bodies had been found in his jurisdiction and, if so, to provide him with details thereof. On the same day, the Edirne public prosecutor sent a similar letter to the public prosecutors of respectively Meriç, Enez, Kesan and İpsala. 58. On 18 September 1997 the Meriç public prosecutor transmitted to the Edirne public prosecutor the autopsy reports on two bodies found on 21 May 1996 and 19 June 1997 respectively in his area of jurisdiction, as well as two photographs taken of these bodies. 59. On 19 September 1997 the Enez public prosecutor informed the Edirne public prosecutor that there were no pending investigations of unidentified bodies found in his area of jurisdiction and that his department had no records on Talat Türkoğlu. 60. On 15 October 1997 the Ministry of the Interior requested the Istanbul Security Directorate to provide information on the investigation carried out as to the allegations made by the applicant in her application to the European Commission of Human Rights. 61. On 22 October 1997 the Uzunköprü public prosecutor informed the Edirne public prosecutor that no unidentified bodies had been found in his area of jurisdiction. 62. On 10 November 1997 the Edirne public prosecutor ordered the Edirne Security Directorate to summon Zeyneti Türkoğlu to his office. 63. On 11 November 1997 the International Law and Foreign Relations Department of the Ministry of Justice requested the Edirne public prosecutor to be informed of the actions undertaken so far in respect of the applicant's account of the disappearance of her husband and related incidents involving herself (the repeated intrusion of unknown persons in her apartment, and her being followed and insulted by plain-clothes policemen) as set out in her application form submitted to the European Commission of Human Rights. The Edirne public prosecutor was further requested to transmit a copy of each document in the file on the investigation. 64. On 13 November 1997, the İpsala public prosecutor transmitted to the Edirne public prosecutor autopsy reports on four unidentified bodies found in or near the river Meriç since 1 April 1996. 65. On 20 November 1997, after having examined the autopsy reports and photographs that had been sent to the Edirne public prosecutor, Hasan Türkoğlu - the brother of Talat Türkoğlu - gave a statement at the public prosecutor;s office in Edirne that he had not recognised his brother on the photographs and that the descriptions of the bodies found in the autopsy reports did not correspond to his brother's physical appearance. 66. On 24 November 1997 the Istanbul Security Directorate informed the Ministry of the Interior that Talat Türkoğlu had been arrested and detained on 21 September 1994 for membership of the TDP, and that on 5 October 1994 the prosecutor at the State Security Court had ordered his detention in custody. Since that date, no search warrant for Talat Türkoğlu had been issued. The letter further states that, following the applicant's petition of 3 May 1996, the police had been informed and that on 21 May 1996, in the absence of any satisfactory results, all police forces had been notified. Furthermore, the Istanbul chief public prosecutor and the prosecutor at the Istanbul State Security Court were informed of the case. The applicant was given detailed oral information about the investigation and was told that everything would be done to resolve the matter. The letter finally states that, during a search in the house of C.D., who had been arrested on 18 May 1997 for his activities in the TDP, press releases issued by the TDP were found stating that one of the murderers of Talat Türkoğlu, Kasım Açık, had been killed by way of punishment. 67. On 5 December 1997, in response to the request of 11 November 1997, the Edirne public prosecutor informed the Edirne chief public prosecutor that, despite all efforts made, Talat Türkoğlu could not be found and that the investigation was continuing. 68. On 19 January 1998, in reply to a letter of 5 September 1997, the Edirne gendarmerie headquarters informed the Edirne Security Directorate that in 1997 no unidentified body had been found in their area of jurisdiction. 69. On 10 February 1998 the Edirne Security Directorate informed the Edirne Security Directorate responsible for Public Order that Talat Türkoğlu had been arrested by the Edirne police on 21 September 1994 for membership of the TDP and that he had subsequently been transferred to Istanbul. Since that date, Talat Türkoğlu was not arrested or detained by the Edirne police department. 70. On 10 February 1998 the Edirne Security Directorate informed the Ministry of the Interior in Ankara that the search for Talat Türkoğlu was ongoing and that it was established that the allegations made in the applicant's letter sent to the Edirne Security Directorate were unfounded since his body had not been found in or near the river Meriç and since no unidentified bodies had been found in this river in 1996 and 1997. The letter finally states that the investigation is being pursued. 71. On 20 February 1998, the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that, according to a letter of 10 February 1998 from the Edirne public prosecutor, Talat Türkoğlu had not left the country after the date of his disappearance. 72. None of the documents submitted contain a reference to a petition filed by seventeen persons detained in Bursa, requesting an investigation into the disappearance of Talat Türkoğlu. 73. The statement consists of five typed pages. At the bottom of each page the name “Kasım Açık” is written by hand and is followed by an illegible signature. In this statement, Kasım Açık declares that he was born in 1979 in Çayırköy, in Ağrı and that in November 1994 he moved to Çorlu, a town close to Edirne. He found a job in a flour factory in Çorlu and met Murat İpek, Murat Demir and their friends. Together with these persons, he socialised with the police commissioner Mustafa Karagöz and the two police officers, Ersan and Ahmet. They used to go to the Ülkü Ocakları, where they met a person called Atalay. 74. Kasım Açık admitted in the statement that he had participated in the killing of a number of persons in the Edirne area in 1995, including Düzgün Tekin, whose body had been buried on a rubbish dump near Çadırkent (place near Edirne) and that he had participated in extorting money from businesses in the Edirne area. Kasım Açık and his friends used to spend the proceeds thereof with some police officers and they gave some of this money to the Ülkü Ocakları. In the statement, Kasım Açık further claims to have gone to Diyarbakır, where he and others received one week's training by the military and subsequently participated in operations in various places in south-east Turkey. He further admitted having participated in the killing of an unspecified number of persons in and near Diyarbakır. 75. Kasım Açık acknowledged that, after his return to Çorlu, he had infiltrated the MLKP and passed on information about the activities of this party to the police commissioner Mustafa Karagöz. 76. The statement also contains a detailed description of the killing of Talat Türkoğlu. The statement, insofar as relevant reads: “We then went to Çadırkent in two cars and took Talat Türkoğlu there with us. Murat Demir and also a commander were with us. Talat was in the car in front of our car and we drove him to a place near River Meriç. There, Apo and I took him out of the [car] and they killed him. He [Talat Türkoğlu] was wearing a wrist-watch, it looked like an old style 'Seiko'. He also had a wallet and a small notebook. He was wearing a dark blue suit. After they killed him, Apo and I threw his body into the river. We then came back to Çadırkent and dropped the commander outside Çadırkent. When we took Talat Türkoğlu there he looked as if he had been tortured, his clothes were dirty.” 77. In this statement, Kasım Açık admitted having been involved, around the time of the killing of Talat Türkoğlu, in the killing of a number of other persons, including Faruk Coşkun and Tarık Ümit. 78. The sketch map drawn and signed by Kasım Açık indicates two cars, one parked behind the other, in an area with trees and what appear to be buildings. The cars are parked at a distance indicated as being about 100 metres from the river Meriç. Three persons are indicated at the left side of the car parked in front. The manner in which these three persons are drawn appears that two persons are aiming a firearm at the third person. Two further persons are indicated as standing in front of the first car watching the scene. The sketch map contains the text “sketch map of the place where we killed Talat Türkoğlu”. 79. On 9 March 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that it appeared from a document in the investigation file of the Edirne public prosecutor that Kasım Açık's whereabouts had not yet been established, but that his record had been obtained. The letter further states that, on 24 February 1998 the Edirne Magistrate's Court was requested to issue a warrant for the arrest of Kasım Açık. This request was rejected by the Magistrate and an appeal against this decision was pending. 80. On 5 May 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Diyarbakır public prosecutor of the nature of the applicant's case before the European Commission of Human Rights and of the statement given by Kasım Açık. The Diyarbakır public prosecutor was requested to investigate the accuracy of the account given by Kasım Açık in his statement. 81. In a letter of 29 May 1998 the Çorlu public prosecutor informed the Tekirdağ public prosecutor that an investigation had been carried out of Kasım Açık's allegation that a gang had killed two persons named Cengiz and Faruk. The place where these two persons had allegedly been buried had been excavated but no bodies had been found. Local records had been verified and local people had been questioned, but without any results. An investigation of the activities of Kasım Açık and nine others had been carried out in 1996 and the file on this investigation had been sent to the Istanbul State Security Court. The letter further states that Murat Demir, who - according to Kasım Açık - killed Talat Türkoğlu, used to live in Çorlu and that in 1996 an investigation against Murat Demir and Musa Şahin, an NCO, was carried out in relation to a murder. This investigation file was sent to the public prosecutor in Tekirdağ. 82. On 4 June 1998 the International Law and Foreign Relations Department of the Ministry of Justice informed the Ministry of Foreign Affairs that Kasım Açık had been charged with membership of the Çorlu branch of the prohibited MLKP/EHB, with having thrown Molotov cocktails and having distributed propaganda leaflets. He was placed in pretrial detention on 28 January 1997 and, on 20 February 1997, was transferred to Gebze Prison, where he was strangled to death on 18 May 1997. This letter further states that the fact that his confessional statement was made during his imprisonment cast doubts on its authenticity. 83. On 16 June 1998 the Ankara Security Directorate informed the Research, Planning and Co-ordination Board of the Ministry of the Interior that Kasım Açık had been searched on suspicion of having been involved in the commission of arson and involvement in bombing incidents. He was apprehended on 28 January 1997 and killed in prison on 18 May 1997. The letter further states that, after the arrest of C.D., the police conducted a search of the house of this person where they found documents published by the TDP stating that “Kasım Açık, one of the murderers of Talat Türkoğlu, has been punished by death”. C.D. was released on 24 May 1998 upon instructions of the public prosecutor. No action was taken against him in relation to the documents found at his home. 84. On 16 June 1998 the Lice chief public prosecutor issued a decision of non-prosecution in relation to the crimes alleged to have been committed by Kasım Açık. The public prosecutor noted in his decision that, in his confession statements, Kasım Açık had not given the names of the victims, their village or the places where they had been buried. He pointed out that, according to the records of May-August 1995, no offence of abduction, murder or ill-treatment has been reported to the police, gendarmerie or judicial authorities within the district. The public prosecutor further noted that he had taken statements from fifty-one muhtars (mayors) of the villages and neighbourhoods of the Lice district. The muhtars all stated no one in their village or neighbourhood had disappeared or killed in June and July 1995, contrary to what was alleged by Kasım Açık. The public prosecutor concluded that there was no reason to continue the investigation into the alleged crimes given the fact that Kasım Açık has died and that therefore it was impossible to question him in relation to his allegations. 85. On 17 June 1998, with reference to the letter of 5 May 1998 from the International Law and Foreign Relations Department of the Ministry of Justice Minister and the letter of 6 May 1998 from the Diyarbakır public prosecutor, the Lice public prosecutor informed the Diyarbakir public prosecutor that his investigation had been completed. He transmitted a copy of each document in the investigation file. 86. By a letter of 23 June 1998 the Silvan Public Prosecutor informed the Diyarbakır chief public prosecutor's office that no evidence could be obtained in relation to the alleged crimes committed by Kasım Açık given the fact that, in his confession statements, the latter had not specified in which crimes he had been involved. 87. On 26 June 1998 the Diyarbakır public prosecutor informed the International Law and Foreign Relations Department of the Ministry of Justice that the investigations conducted by the public prosecutors of, respectively, Lice and Silvan in relation to the alleged incidents as related in the statement of Kasım Açık had been completed. He transmitted a copy of each document in those investigation files. 88. On 16 September 1998 the Diyarbakır chief public prosecutor issued a decision of non-prosecution in relation to Kasım Açık as a result of the death of the latter. 89. In 2001 an examination was carried out into the authenticity of the documents allegedly signed by Kasım Açık. In this connection, the arrest and body search protocols and the documents containing Kasım Açık's confession statements were examined at the Criminal Laboratory of the General Security Directorate. Graphological comparison test of the handwriting and signature on the documents indicated that the said documents had been signed by two different persons. The experts were of the opinion that the arrest and body search protocols were signed by one person and the confession statements were signed by another person. However, they could not reach a certain conclusion as the documents in question were not the original copies. 90. On 3 July 1997 the Gebze public prosecutor requested the Kartal public prosecutor to open a criminal investigation against Ayhan Güneş and eighteen others in respect of the killing of Kasım Açık. 91. On 8 July 1997 Ayhan Güneş and four other prisoners were charged with the killing of Kasım Açık and summoned to appear before the Kartal High Criminal Court (Ağır Ceza Mahkemesi). Ayhan Güneş was detained on remand in the Gebze prison awaiting the outcome of his trial on charges of membership of the MLKP. 92. During the hearing before Kartal High Criminal Court on 19 March 1998 Ayhan Güneş admitted that he had strangled Kasım Açık with a piece of rope. He contended that Kasım Açık had suffered from psychological problems, that he had been very anti-social and that not been liked by any of the other inmates. On the day he was killed, Kasım Açık had provoked Ayhan Güneş by criticising the book that the latter had been reading. Ayhan Güneş finally stated that he had acted alone and that no other inmate had been involved in the killing. 93. On 11 June 1998, the public prosecutor requested the court to drop the charges against the four co-accused for lack of evidence and the fact that Ayhan Güneş had admitted killing Kasım Açık. The public prosecutor sought the conviction of Ayhan Güneş for murder. 94. On 1 March 1999 the Kartal Assize Court convicted Ayhan Güneş of murder and sentenced him to fifteen years' imprisonment. 95. On 19 July 2001 the Court of Cassation upheld the above conviction but mitigated the sentence to ten years' imprisonment. 96. By letter of 15 November 1996, the Ministry of Foreign Affairs informed the International Law and Foreign Relations Department of the Ministry of Justice that the applicant had visited Australia, where she had given an interview. This interview had been reported in an article in Yorum, a newspaper published in Sydney. According to this article, the applicant had stated that her husband had disappeared on 1 April 1996 and that human rights violations and atrocities continued to occur in Turkey. During the applicant's stay in Australia, she visited Alevite and Kurdish organisations, and had meetings with Australian Parliamentarians and members of Amnesty International. She further organised a demonstration on 26 October 1996 in Sydney in support of the “Saturday Mothers”, which demonstration was attended by, inter alia, Australian-based Alevite and Turkish-Kurdish organisations. During this demonstration, it was stated that human rights violations continued to occur in Turkey. 97. According to an undated press release issued by the TDP, Kasım Açık had acted as a spy and had betrayed the organisation's confidential strategy. According to this press release, Kasım Açık had been tried under the rules of the TDP and had been sentenced to death for the murder of Talat Türkoğlu. 98. On 19 May 1997 the International Committee Against Disappearance (ICAD), an organisation in Turkey, issued a press statement and condemned the abduction and killing of Talat Türkoğlu. 99. For the relevant domestic law and background information, the Court refers to the judgments of Ülkü Ekinci v. Turkey (no. 27602/95, §§ 111-18, 16 July 2002) and Tepe v. Turkey (no. 27224/95, §§ 115-22, 9 May 2003).
| 1
|
train
|
001-60676
|
ENG
|
PRT
|
CHAMBER
| 2,002
|
CASE OF CZEKALLA v. PORTUGAL
| 1
|
Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
|
Georg Ress
|
10. The applicant was born in 1953 and lives in Sonsbeck (Germany). 11. On 12 January 1993 the applicant was arrested in connection with an anti-drug-trafficking operation as a result of which the Sintra public prosecutor’s office brought criminal proceedings against about forty persons. The applicant was interviewed on 13 January 1993 by an investigating judge, in the presence of an interpreter and a lawyer appointed under the legal-aid scheme, and was then placed in pre-trial detention. 12. On 21 January 1993 a search of his home was carried out and large sums of money in several different currencies and a self-defence spray were seized. 13. On 28 April 1993 the applicant, represented by a lawyer whom he had in the meantime authorised to act for him, asked to be interviewed in the presence of another person involved in the case, one A.G. That request was refused on an unspecified date. 14. On 7 January 1994 the public prosecutor’s office filed the prosecution submissions (acusação) against the applicant and forty-three other persons. Mr Czekalla was accused of aggravated drug trafficking and conspiracy (associação criminosa). The indictment listed fifty prosecution witnesses and the submissions ran to 156 pages. 15. On 19 January 1994 the applicant asked the judge to let him have a copy of the case file so that he could prepare his defence. The judge granted his request and the file was made available to the applicant’s lawyer at the registry of the Sintra District Court. 16. On 23 January 1994 the applicant applied to the judge personally in English, asking for a translation of the prosecution submissions into German, his native language. On 27 January 1994 the investigating judge at the Sintra District Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, refused that application without looking into its merits on the ground that it was not written in Portuguese. 17. In a letter of 16 February 1994 the German embassy in Lisbon asked the Sintra District Court to send the applicant a German translation of the prosecution submissions. The embassy later informed the court that it could assist it by providing the services of a sworn translator (letter of 8 September 1994). 18. On 20 February 1994 the applicant submitted a request similar to that of 23 January 1994 but written in Portuguese. In response to that request, on 27 April 1994, an interpreter appointed by the Sintra District Court went to the prison where the applicant was being held and gave him an oral translation of the prosecution submissions. 19. As a number of the accused had asked for the judicial investigation to be formally opened, that was done, on 16 March 1994. An adversarial hearing was held on 21 April 1994. On 27 April 1994 the investigating judge made an order (despacho de pronuncía) committing thirty-five of the accused, including the applicant, for trial. The order was read out to all the accused and simultaneous interpretation was provided in several foreign languages. 20. On 28 June 1994 the applicant filed his defence pleadings and submitted a list of the defence witnesses. 21. In a judgment of 7 July 1994 the Supreme Court (Supremo Tribunal de Justiça) ruled that the Sintra District Court could hold the trial on the premises of the Lisbon Criminal Court in Monsanto on account of the lack of space at its own courthouse in Sintra. 22. The trial began on 8 November 1994 and lasted for eight months, during which fifty-eight hearings were held. On 21 February 1995, in other words while the trial was still taking place, the applicant withdrew the authority to act he had given to his lawyer and asked the court to appoint a lawyer under the legal-aid scheme. The court appointed Ms T.M. as his defence counsel. 23. The Sintra District Court gave judgment on 24 July 1995. It found the applicant guilty of aggravated drug trafficking but not of conspiracy, and sentenced him to fifteen years’ imprisonment. 24. On 3 August 1995 the applicant personally appealed to the Supreme Court. His application was written in German. By an order of 12 September 1995 the judge of the Sintra Criminal Court, ruling on the basis of Article 92 § 1 of the Code of Criminal Procedure, dismissed the appeal without looking into its merits on the ground that it was not written in Portuguese. 25. On 7 August 1995 Ms T.M. lodged an appeal with the Supreme Court on her client’s behalf. She alleged breaches of a number of provisions of the Code of Criminal Procedure and of Articles 5 and 6 of the Convention. 26. In September 1995 the applicant asked a lawyer of his own choice to represent him in the proceedings, thus dispensing with the services of the lawyer appointed under the legal-aid scheme. On 27 September 1995 the applicant’s new lawyer lodged an appeal with the Supreme Court against the order made by the judge of the Sintra Criminal Court on 12 September 1995. 27. On 20 September 1995 the case file was sent to the Supreme Court. 28. On 10 July 1996 the Supreme Court gave judgment on a number of interlocutory appeals and on those which, in the judges’ opinion, could already be decided without further examination. Applying Article 412 of the Code of Criminal Procedure, the Supreme Court declared inadmissible the applicant’s appeal against his conviction, lodged through Ms T.M., ruling that the grounds of appeal had not been satisfactorily explained. The appeal contained no submissions and did not indicate in what way the legal provisions whose breach it alleged should have been interpreted and applied. 29. On 11 December 1996 the Supreme Court delivered a second judgment. It first upheld an appeal by the prosecution concerning some of the defendants, including the applicant, finding that the latter was also guilty of conspiracy. The applicant’s sentence was accordingly raised to twenty-one years’ imprisonment. The Supreme Court then considered the appeal against the order made by the judge of the Sintra Criminal Court on 12 September 1995. It held that the application made by the applicant alone was provided for in Article 98 of the Code of Criminal Procedure, which permitted a defendant to submit pleadings or observations directly to the court. Taking into account Article 6 § 3 (e) of the Convention, the Supreme Court then set aside the impugned decision and ordered the appeal lodged by the applicant to be translated so that it could be “duly examined”. Lastly, the Supreme Court decided that the statements of one of the defendants, who had cooperated with the police investigating the case and had refused to answer the questions put by counsel for the other defendants, could not be admitted in evidence. 30. Some of the defendants, but not the applicant, appealed against the above decision to the Constitutional Court (Tribunal Constitucional). 31. The applicant requested a clarification (aclaração) of the last part of the Supreme Court’s judgment of 11 December 1996. He wanted to know in particular when his conviction would become final, regard being had to the Supreme Court’s decision to set aside the order of 12 September 1995. 32. In a judgment of 12 February 1997 the Supreme Court dismissed the above application on the ground that no clarification was called for. On the other hand, it corrected a mistake discovered in the judgment of 11 December 1996 concerning determination of the sentences imposed on some of the defendants and reduced the applicant’s sentence to eighteen years’ imprisonment. 33. On 15 July 1997 the Constitutional Court dismissed the appeals by some of the defendants. 34. On 18 July 1997 the applicant asked the Supreme Court to inform him how it intended to follow up the final part of the judgment of 11 December 1996 with regard to the application he had lodged with the Sintra Criminal Court on 3 August 1995. On an unspecified date the reporting judge ordered the registry to inform the applicant that the application would be examined by the Sintra Criminal Court in due course. 35. In a judgment of 1 October 1997 the Supreme Court made it clear that the applicant was to be regarded as serving his sentence, since the Constitutional Court had dismissed the appeals by other defendants, with the result that the Supreme Court’s judgment of 11 December 1996, as corrected by the judgment of 12 February 1997, had therefore become final. 36. On 14 October 1997 the applicant asked to be released. He submitted that the Supreme Court’s judgment of 11 December 1996 had not become final in so far as he himself was concerned. He pointed out that the last part of the judgment had not been executed, as his appeal of 3 August 1995 had not yet been duly examined as required by the judgment in question. 37. On 23 October 1997 the reporting judge refused the above application in the following terms: “The application in issue [the one made on 3 August 1995] ... was submitted under Article 98 of the Code of Criminal Procedure. If by means of that application the applicant intended to appeal against his conviction, it must be pointed out that it could not have such an effect. The appeal by the defendant Czekalla against his conviction was the one lodged by the lawyer representing him under the legal-aid scheme, which has already been heard. ... The content [of the application of 3 August 1995], whatever it is – and that is a matter to be ascertained when the file has been transmitted to the court of first instance – could not therefore affect or influence the course of the proceedings. That is why the application cannot prevent the transition to res judicata [trânsito em julgado] of the Supreme Court’s judgment of 11 December 1996.” 38. The applicant lodged a constitutional appeal against the above decision. On 16 January 1998 the reporting judge declared the appeal inadmissible for failure to exhaust ordinary remedies, the applicant having omitted to challenge the decision before the Judicial Committee (conferência). The applicant then appealed against the inadmissibility decision to the Constitutional Court, which dismissed his appeal in a judgment of 13 May 1998. 39. By a decision of 16 March 1999, of which the applicant was informed on 29 October 1999, the Sintra District Court ruled, in accordance with the Supreme Court’s judgment of 11 December 1996, on the application made by the applicant on 3 August 1995. It noted firstly that the application amounted to an appeal against conviction. It went on to say that the applicant had only reproduced the appeal lodged at the time by his lawyer, but had not made use of the remedy provided for in Article 63 § 2 of the Code of Criminal Procedure, whereby he could have revoked the act carried out by his counsel. It noted that in any event the application was signed only by the applicant and not by his lawyer, and that accordingly it could not be declared admissible. 40. In a judgment of 23 June 2000 the Evora Court of Appeal allowed an application for transfer to Germany made by the applicant under the Convention on the Transfer of Sentenced Persons. 41. The applicant was serving the remainder of his sentence in Germany when he was paroled on 14 March 2001. 42. On 11 November 1995 the applicant lodged a complaint against Ms T.M. with the Lisbon Bar Council. He alleged that her conduct had caused him prejudice in that, contrary to his instructions, she had herself lodged with the Supreme Court an appeal that did not satisfy the formal conditions. 43. On 16 October 1996 the Bar Council decided to open disciplinary proceedings against Ms T.M. 44. The applicant asserted that he had received from the Bar Council a letter dated 12 May 1997 informing him that a disciplinary penalty had been imposed on Ms T.M. for “unethical conduct”. The document concerned has not been produced before the Court. 45. The provisions of the Code of Criminal Procedure relevant to the present case are the following: “1. The accused may instruct counsel at any stage of the proceedings. 2. Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him, the judge shall assign one officially, preferably a member or trainee member of the Bar; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing. ...” “The accused may revoke any act carried out on his behalf by the person defending him, provided that he expressly declares that intention before any decision has been taken in respect of the act in question.” “1. Where a representative is assigned officially, the accused shall be notified of the fact if he was not present at the material time. 2. The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid. 3. The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground. 4. Until such time as he is replaced, an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings. 5. The representative shall always be remunerated for his services; the terms and the amount shall be determined by the court, within the limits laid down in a scale approved by the Ministry of Justice or, failing that, in the light of the fees normally paid for services of a similar nature and of equal importance. Payment shall be the responsibility, as the case may be, of the accused, the assistente, the civil parties or the Ministry of Justice.” “1. To be valid, all steps in the proceedings, whether written or oral, must be made in Portuguese. 2. Where a person who does not know or master the Portuguese language has to take part in proceedings, an appropriate interpreter shall be appointed free of charge ... 3. An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation. ...” “An accused, even if at liberty, may submit observations, pleadings or applications at any stage of the proceedings, even if they are not signed by his representative, provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights. Such observations, pleadings or applications shall always be placed in the case file.” “1. The pleadings shall set forth in detail the grounds of appeal and end with submissions, set out point by point, in which the appellant summarises the reasons for his appeal. 2. If the reasons concern the law, the submissions shall also indicate the following, failing which the appeal shall be dismissed: (a) the legal provisions that have been infringed; (b) the way in which, in the appellant’s opinion, the lower court interpreted or applied each provision and the way in which that provision should have been interpreted or applied ...” 46. Like Article 412 of the Code of Criminal Procedure, Article 690 of the Code of Civil Procedure requires an appellant to complete his appeal with submissions. These must likewise indicate both the legal provisions infringed and the way in which, according to the appellant, they should have been interpreted or applied by the lower court. However, paragraph 4 of Article 690 provides: “Where there are no submissions, or where the submissions are incomplete, obscure or complex ... the reporting judge must ask the appellant to produce them, add to them, clarify them or summarise them, failing which the appeal shall not be heard ...” 47. Formerly, it was the established case-law of the Supreme Court that it was permissible to dismiss outright any appeals submitted in breach of the formal conditions laid down in Article 412 of the Code of Criminal Procedure. In particular, it took the view that an appellant was not entitled to be asked to make good any deficiencies of his appeal, unlike the position provided for in Article 690 of the Code of Civil Procedure. That was justified by the particular requirements of speedy trial imposed by criminal procedure, the question of celerity being deemed not to be raised in the same terms in civil cases. It was therefore normal for the Supreme Court to dismiss appeals on points of law, for example, on account of the prolixity of the related pleadings, regard being had to the provision in Article 412 § 1 requiring an appellant to “summarise” the reasons for his appeal. 48. In its judgment no. 337/2000 of 27 June 2000, published in the Official Gazette on 21 July 2000, the Constitutional Court declared, with general binding force, that Article 412 of the Code of Criminal Procedure was unconstitutional if interpreted so as to permit the outright dismissal of an appeal on points of law on account of the wordiness of the related pleading without the appellant being first asked to rectify his appeal. It emphasised that the particular requirements of speedy trial imposed by criminal procedure could not justify such a restriction of the right to due process. 49. In its judgment no. 265/01 of 19 June 2001, published in the Official Gazette of 16 July 2001, the Constitutional Court declared, with general binding force, that Articles 59 and 61 of Legislative Decree no. 433/82, which are similar to Article 412 of the Code of Criminal Procedure and applicable to summary offences, were unconstitutional if interpreted so as to permit the outright dismissal of an appeal on account of its being unaccompanied by submissions without the appellant being first asked to make such submissions. The Constitutional Court referred to its case-law concerning the dismissal of appeals on points of law on account of the wordiness of the related pleading, observing that the same reasoning applied to the case under consideration, regard being had to the requirements of the principle of fair trial and the right to due process. 50. The legal profession in Portugal is free and independent. Lawyers are completely independent from the State and are bound only by their statute, approved by Legislative Decree no. 84/84 of 16 March 1984. 51. The Bar Council is a public-law association, regulated by Act of Parliament but independent of the State. It has disciplinary jurisdiction over lawyers, who must be registered with the Council in order to be able to practice, the question of disciplinary responsibility being a quite separate matter from any civil or criminal responsibility (Article 96 of Legislative Decree no. 84/84).
| 1
|
train
|
001-61289
|
ENG
|
POL
|
CHAMBER
| 2,003
|
CASE OF SKAWINSKA v. POLAND
| 4
|
Violation of Art. 6-1
|
Nicolas Bratza
|
8. The applicant was born in 1952 and lives in Łódź, Poland. 9. On 8 December 1992, relying on information provided by a certain X, the Łódź-Górna District Prosecutor (Prokurator Rejonowy) opened an investigation against the applicant concerning theft and obstructing X’s use of certain objects. 10. On 30 July 1993 the District Prosecutor submitted the bill of indictment to the Łódź District Court (Sąd Rejonowy). 11. X and witness L. K. failed to attend the hearing of 2 February 1994. On 8 February 1994 the court requested the police to provide the address of L. K. 12. The hearing scheduled for 28 February 1994 was adjourned because of the presiding judge’s illness. 13. The court held hearings on 30 March and 4 May 1994. The hearing scheduled for 11 May 1994 was adjourned due to the absence of three witnesses and the applicant’s lawyer. 14. On 16 May 1994 the court ordered a psychiatric examination of the applicant. It considered that her behaviour in the course of the proceedings and the nature of her pleadings caused it to doubt whether she was capable of understanding the meaning of the criminal act allegedly committed by her and whether she was capable of taking part in the proceedings. 15. On 23 May 1994 the court rejected the applicant’s eight petitions concerning evidence. 16. On 14 June 1994 the examination was carried out. The applicant submitted that it had lasted a few minutes and the psychiatrists had seemed not to have read the case-file. The Government submitted that the psychiatrists had prepared a five-page opinion. On the same day the court ordered the applicant to undergo observation in a psychiatric hospital, relying on the psychiatrists’ statement that they had not been able to prepare their opinion on the basis of their single examination. The applicant appealed. 17. On 6 July 1994 the Łódź Regional Court (Sąd Wojewódzki) amended the decision under appeal by indicating that the observation would not last more than three weeks. The court dismissed the remainder of the applicant’s appeal. 18. In her letter of 14 July 1994 she requested the annulment of those decisions, alleging that they had been given by persons who were not judges. 19. On 25 July 1994 the court held a hearing. It imposed a fine on a witness for his failure to attend that hearing. 20. On 29 August 1994 the court issued an order concerning the taking of the applicant’s child into public care during her psychiatric observation, which was supposed to be carried out from 1 to 9 September 1994. 21. The applicant left Łódź with her child before the starting date of her observation. On 21 September 1994 her lawyer informed the court that he ceased to represent her in the proceedings. 22. On 14 October 1994 a legal-aid lawyer refused to represent the applicant. 23. On 18 October 1994 the court held a sitting concerning the applicant’s motion for a new expert opinion. 24. Subsequently, it adjourned a hearing at the request of the applicant, who had not accepted her new legal-aid lawyer. 25. On 28 October 1994 the Regional Court quashed the decision concerning the taking of the applicant’s child into public care. 26. On 3 November 1994 the District Court held a hearing at which it decided to make an enquiry with a psychiatric hospital about a date on which the observation could be carried out. The applicant appealed that decision, pointing out that the psychiatrists’ opinion of 14 June 1994 was of a poor quality and that the court had overlooked the fact that during her observation her child would be left without care. She submitted that her requests to be examined by other psychiatrists or to undergo short observations in a hospital with the possibility of returning home every day so as to take care of her child had been refused. The appeal was rejected as not provided for by law in such cases. 27. On 28 November 1994 the applicant submitted further pleadings. 28. On 7 December 1994 the Regional Court upheld the District Court’s order rejecting the applicant’s appeal against a decision concerning an expert opinion. 29. Between 28 November 1994 and 7 June 1995 the applicant filed with the court twenty-eight pleadings and motions. 30. On 14 June 1995 the Regional Court quashed the decision of 22 May 1995 staying the proceedings. 31. On 25 September 1995 the applicant was placed for three weeks in a psychiatric hospital. She submitted that she had been treated with strong medicines which severely affected her health and consciousness. On the basis of the observation, the psychiatrists stated that the applicant suffered from stress caused by court proceedings as well as from delusions. 32. On 20 November 1995 the District Court stayed the proceedings, considering that the applicant was unable to participate because of her mental illness. 33. On 7 May 1996 the court ordered a psychiatric opinion as to whether she was able to participate in the proceedings. 34. On 17 June 1996 psychiatrists examined the applicant and found that her health had deteriorated. 35. On 24 June 1996 the court refused the applicant’s request to remit the case to the prosecutor. On the same day it declined the legal-aid lawyer’s request to be released from the duty to represent the applicant. 36. On 4 September 1996 the Regional Court dismissed the applicant’s appeal against the decision staying the proceedings. 37. The applicant failed to appear at the psychiatric observation scheduled for 30 September 1996. 38. On 21 July 1997 the court rejected the applicant’s challenge to the participation in the proceedings of one of the judges. 39. On 28 August 1997 it held a sitting regarding the resumption of the proceedings. The court heard two experts in psychiatry and ordered a further opinion by other experts. 40. The applicant failed to attend the examination scheduled for 9 October 1997. 41. On 26 February 1998 the court refused her request that the proceedings be resumed. The court considered that a decision to resume the proceedings should be based on a psychiatric opinion confirming that the applicant’s health was no longer an obstacle to her participation. It noted that the opinions available to it were not persuasive in this respect, and that the applicant kept failing to attend further examinations. 42. On 11 June 1999 the court held a hearing concerning the applicant’s motion for the resumption of the proceedings. It ordered another expert opinion on the state of her mental health. The applicant having failed to attend two examinations, the experts prepared their opinion on the basis of the case-file. 43. On 24 August 1999 the court resumed the proceedings. It discontinued the proceedings in their part concerning one of the charges. 44. On 26 August 1999 the applicant filed a request concerning new evidence. 45. On 7 September 1999 she appealed against the reasoning for the decision resuming the proceedings. 46. On 9 September 1999 the court held a hearing concerning that appeal. The applicant failed to attend that hearing. She submitted that she had not been informed about that hearing. On 29 September 1999 the Regional Court upheld the reasoning challenged by the applicant. 47. In her pleadings of 30 December 1999 the applicant challenged the participation of the presiding judge in the proceedings. On 3 January 2000 she filed eight motions concerning evidence. 48. On 5 January 2000 the applicant requested that the psychiatrists who had issued the opinions on her mental health be excluded from the proceedings. 49. At the hearing of 11 January 2000 the court rejected the applicant’s motions concerning the psychiatrists and evidence. 50. Subsequently, the applicant filed four further pleadings and motions. 51. On 3 February 2000 the court held a hearing. Six witnesses failed to appear. 52. On seven occasions in February and March 2000 the applicant filed further pleadings. 53. On 1 March 2000 the court held a hearing. Six witnesses and one of the two experts summoned to the hearing failed to attend it. 54. The police informed the court that the whereabouts of witness K. K. were unknown and that witness K. P. lived in Germany, which made it impossible to serve summonses on them. 55. On 29 March 2000 the court held a hearing. 56. On 7 April 2000 the Łódź District Court gave a judgment in which it acquitted the applicant. The prosecutor appealed. 57. The hearing before the Łódź Regional Court, scheduled for 15 September 2000 was adjourned because of the presiding judge’s illness. On the same day the applicant challenged the impartiality of seven judges of that court. 58. On 2 October 2000 the court held a hearing. 59. On 12 October 2000 the Łódź Regional Court dismissed the appeal against the District Court’s judgment.
| 1
|
train
|
001-89623
|
ENG
|
TUR
|
CHAMBER
| 2,008
|
CASE OF CEMALETTIN CANLI v. TURKEY
| 3
|
Violation of Art. 8;Non-pecuniary damage - award
|
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
5. The applicant was born in 1969 and lives in Ankara. 6. In 1990 he was prosecuted for his alleged membership of an illegal organisation, namely Dev-Genç (“Revolutionary Youth”) but was acquitted on 25 September 1990. Another set of criminal proceedings brought against him under Article 141 of the Criminal Code for membership of another illegal organisation, namely Dev-Yol (“Revolutionary Path”), were discontinued in 1990 following the repeal of that provision. 7. On 23 August 2003 the applicant was on his way to a demonstration in Ankara, organised by the Confederation of Public Workers’ Unions. He was arrested by the police, who allegedly beat him up. He was taken to a police station. A police report drawn up the same day stated that the applicant had a previous record for terrorist related activity in 1990. 8. On 24 August 2003 the Ankara prosecutor filed an indictment, accusing the applicant and 25 other persons of contravening the Demonstrations Act, and charged them with the offences of damaging State property and resisting arrest by using force. 9. While the criminal proceedings were pending before the Ankara Criminal Court of First Instance (hereinafter “the Ankara court”), a police report entitled “information form on additional offences” (Ek Suç Bildirme Formu) was submitted to the Ankara court. In the report, under the heading “Records of Guilt” (Suçluluk Kayıtları), were two entries concerning the applicant which read as follows: “1- Member of Dev-Yol, 14/03/1990, Political Offences Branch [of the Police], 3371; 2- Member of Revolutionary Youth, 2/11/1990, Political Offences Branch [of the Police], 14034”. 10. The report, which also included the applicant’s fingerprints, address and birth registry details, had been drawn up in accordance with Article 12 of the Police Regulations on Fingerprinting, which empowered the police to keep such details on persons accused or convicted of certain offences. 11. On 27 January 2004 the applicant submitted a complaint to the prosecutor and brought to the prosecutor’s attention his acquittal in 1990 of the offence of membership of the illegal organisation Dev-Genç, and the discontinuation in 1990 of the criminal proceedings concerning his alleged membership of Dev-Yol. The applicant drew attention to the fact that the Police Regulations on Fingerprinting also required the police to include in their records any acquittals or discontinuations of criminal proceedings. He asked the prosecutor to prosecute the police officers who had neglected their duties by failing to comply with the Regulations. 12. In his complaint the applicant further argued that the police report as it stood infringed his right to the presumption of innocence protected by Article 6 of the European Convention on Human Rights. He was a sociologist and the author of a number of publications. He drew the attention of the prosecutor to the national press which had reported that “one of the persons arrested [in the demonstration] was a member of Dev-Genç”. He submitted that he was now regarded as a member of illegal organisations and this had adverse effects on his professional life and was detrimental to his psychological integrity. 13. On 11 February 2004 the prosecutor dismissed the applicant’s request for the police officers to be prosecuted. The prosecutor considered that the officers had not attempted to mislead anyone; all they had done was to forward to a criminal court official records of past incidents concerning the applicant. 14. The applicant lodged an objection against the prosecutor’s decision and argued that the prosecutor had not examined or even mentioned in his decision the Regulations in question before deciding not to prosecute the police officers. He further complained that his rights under the European Convention on Human Rights, in particular his rights to a fair trial and to respect for his private and family life, had been breached. 15. The applicant’s objection was rejected by the Sincan Assize Court on 17 March 2004. 16. On 8 December 2005 the applicant was acquitted in the criminal proceedings which had been brought against him on 24 August 2003 (see paragraph 8 above). 17. According to Article 230 of the Criminal Code in force at the time of the events, it was an offence for a public servant to delay in carrying out or to omit to carry out his or her duties. Moreover, according to Article 26 of the Police Regulations on Fingerprinting, all decisions relating to the accusations mentioned in police reports – such as decisions rendered by prosecutors not to prosecute, court decisions on acquittals, and decisions to discontinue criminal proceedings – should also be included in the reports and a certified copy of such decisions should be attached to them. Competent authorities requiring information on the person in question should be provided with the reports as well as with the decisions relating to the accusations mentioned in them. The Council of Europe has examined questions of data protection and concluded the Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. It came into force on 1 October 1985 and its purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual”.
| 1
|
train
|
001-94854
|
ENG
|
AZE
|
CHAMBER
| 2,009
|
CASE OF TEBIETI MÜHAFIZE CEMIYYETI AND ISRAFILOV v. AZERBAIJAN
| 1
|
Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The Association is a non-profit-making non-governmental organisation (NGO), now dissolved, which was active between 1995 and 2002. The application was lodged by its former Chairman, Mr Sabir Israfilov, who was born in 1948 and lives in Baku. 7. The Association was registered by the Ministry of Justice on 25 August 1995 and acquired the status of a legal entity. 8. Clause 1.1 of the Association’s Charter defined it as an independent, charitable public organisation with voluntary membership, conducting its activities within the framework of the laws of the Republic of Azerbaijan on public associations, other applicable laws and its own Charter. 9. According to clause 1.2 of the Charter, the main objects of the Association were: “... in the circumstances of the present-day environmental crisis, to develop the environmental culture and awareness of the various strata of the country’s population, to organise a public movement for a clean environment in Azerbaijan, to give impetus to the process of effective resolution of environmental protection problems, and to strive permanently to promote the measures necessary to create a healthier environment.” 10. According to the Charter, the Association’s governing bodies consisted of the Congress (the general assembly of members), the Central Council (the management board elected by the general assembly for a fiveyear term), the Central Supervisory Commission (a body of internal control elected by the general assembly for a five-year term), and various local bodies. Clause 4.8 of the Charter provided that the Congress, as the general assembly of members, was the Association’s supreme governing body and would convene once every five years. 11. Since the date of its establishment and State registration, and until August 2002, the Association had not convened a general assembly of its members. 12. It appears that, on 9 July 1997, about two years after the Association’s State registration, the Ministry of Justice sent a letter to the Association, noting that the latter had committed certain breaches of the domestic law and the Association’s own Charter. The exact content of that letter is not clear from the materials available in the case file. 13. On 14 August 2002 the Ministry of Justice commenced an inspection of the Association’s activities. 14. On 10 September 2002 the Ministry issued a warning to the Association in accordance with section 31.2 of the Law on nongovernmental organisations (public associations and foundations) of 13 June 2000), applicable at the material time (“the NGO Act”). The Ministry stated that the Association’s activities did not comply with the requirements of its own Charter and the domestic law. It was noted that a general assembly of the Association’s members had not been convened within the five-year period specified in its own Charter. Moreover, in any event, this provision of the Charter was itself incompatible with the domestic law, as section 25.2 of the NGO Act required that the supreme governing body of a public association – the general assembly of members – was to be convened at least once every year. The Ministry requested that, within ten days, the Association take measures to remedy the above-mentioned breach and inform the Ministry of the measures taken. 15. In reply, Mr Israfilov informed the Ministry that, in fact, a general assembly of members had taken place on 26 August 2002. It appears that, among other things, the Association’s general assembly decided to establish a working group in order to bring the Association’s Charter into conformity with the current legislation. 16. Having examined the documents relating to the general assembly meeting of 26 August 2002, on 3 October 2002 the Ministry of Justice issued a new warning to the Association (which constituted a second warning issued in 2002). It noted that the general assembly of 26 August 2002 had been convened in violation of numerous provisions of the domestic law. The Ministry noted, inter alia, that not all members of the Association had been properly informed about the general assembly and thus had been unable to participate in it, and that the Association’s local branches had not been equally represented at the assembly. Generally, the current membership records had not been properly kept and it was impossible to determine the exact number and identity of members. Local branches of the Association had not held any regular local assemblies of members and, in fact, functioned as regional offices directly governed by the head office in an administrative and hierarchical manner, whereas in a genuine public association ordinary members should be able to directly participate in its management. The Ministry again demanded that, within ten days, information be submitted as to the steps taken to remedy these breaches. 17. It appears that the Association disagreed with the above findings in its correspondence with the Ministry and took no action in response to this second warning. 18. Finally, on 28 October 2002 the Ministry issued a third warning, stating that it had not received any information from the Association as to compliance with the prior two warnings. In addition to reiterating the remarks contained in the prior warnings, the Ministry noted that the Association also engaged in an activity prohibited by law. Specifically, the domestic law (namely, the NGO Act, the Law on environmental protection of 8 June 1999 and the Law on entrepreneurial activity of 15 December 1992) prohibited public associations from interfering with the activities of private businesses. In this connection, the Ministry noted: “However, contrary to these legal requirements, the Association ... attempts to collect money from State organs and commercial organisations in the guise of membership fees, regularly conducts [unlawful] inspections at economic enterprises and draws up [environmental compliance] reports, and engages in other illegal acts interfering with the rights of entrepreneurs ...” 19. As it had done previously, the Ministry demanded that, within ten days, the Association submit information as to the steps taken to remedy the situation. The Association did not react. 20. In December 2002 the Ministry lodged an action with the Yasamal District Court, seeking an order for dissolution of the Association. The Association, represented by Mr Israfilov, lodged a counterclaim, contending that the Ministry’s warnings had been unlawful and unsubstantiated. 21. On 7 March 2003 the Yasamal District Court dismissed the Association’s counterclaim and granted the Ministry’s request, ordering the Association’s dissolution. 22. Specifically, in respect of the Ministry’s request for dissolution, the court heard oral submissions by the Association’s members and the officials of the Ministry of Justice’s Department of State Registration of Legal Entities, reviewed the content of the Ministry’s three warning letters issued in 2002 and examined the correspondence between the Association and the Ministry. The court also examined six internal reports by various officials of the Ministry of Justice concerning the results of the inspection of the activities of the Association’s various local branches. According to these reports, most of the inspected branches had not held regular local assemblies of members and had not maintained proper records of members and membership fees. One of these reports stated that, according to “information obtained” during the inspection, the Association’s branch in the Tovuz region carried out illegal environmental inspections and engaged in other illegal activities. 23. Based on the above materials, the court found that, despite the early warning issued on 9 July 1997 (the content of which was not specified in the judgment), the Association had continued to commit breaches of domestic law on an even more systematic basis, which had led to the issuance by the Ministry of Justice of the three warning letters in 2002. The court noted that the Association’s Charter had not been brought into compliance with the domestic law on public associations, which required that a general assembly of members be held no less than once a year. In any event, even the five-year period for convening a general assembly, as required by the Association’s Charter, had not been complied with. The court further found that the Ministry’s findings concerning numerous irregularities during the general assembly meeting of 26 August 2002, as well as breaches of law in the general functioning of the Association, constituted a basis on which to dissolve the Association for systematic failure to comply with the domestic law. 24. Furthermore, again based on the above-mentioned oral testimonies of the Ministry officials and their inspection reports, the court noted that the Association had frequently overstepped the limits of the scope of its activities as defined in its Charter and permitted by law, by interfering with the competence of the relevant State authorities. In particular, it was noted that the Association’s local branches had attempted to carry out unlawful environmental inspections on the premises of various State and commercial enterprises and collect membership fees from them, issued reports on these enterprises’ compliance with environmental standards, and engaged in other actions interfering with the activities of commercial entities. The court found that, by engaging in such actions, the Association had violated the rights of other persons and attempted to misappropriate powers of a State regulating authority. 25. The court further noted that, in accordance with the NGO Act, the issuance of three warnings by the Ministry of Justice constituted a basis for an association’s dissolution if the latter did not take any measures to remedy the shortcomings in its activities. The court therefore ordered that the Association be dissolved. 26. The Association appealed, claiming that the provisions of the NGO Act were vague and imprecise, giving the Ministry a wide discretion to interfere with public associations’ activities and to issue warnings even for minor irregularities in their activities. The Association also argued that the Yasamal District Court’s factual findings concerning its activities had been incorrect and unsupported by any evidence. 27. On 4 July 2003 the Court of Appeal dismissed the appeal and upheld the Yasamal District Court’s judgment. 28. By a final decision of 29 October 2003, the Supreme Court upheld the lower courts’ judgments. 29. The Association’s State registration certificate was revoked and the Association was dissolved. 30. Article 59 of the Civil Code provides: “59.2. A legal entity may be dissolved: ... 59.2.3. By a court order, if the legal entity engages in activities without the required permit (licence) or in activities prohibited by law, or if it otherwise commits repeated or grave breaches of law, or if a public association or foundation systematically engages in activities that are contrary to the aims set out in its by-laws, as well as in other cases provided by law. 59.3. A request to dissolve the legal entity under the grounds specified in Article 59.2 of this Code may be lodged by the relevant State authority or local self-administration authority, to which the right to lodge such a request is granted by law. ...” 31. Section 1 of the NGO Act provides: “1.1. This Law regulates the relations concerning the establishment and functioning of public associations and foundations. 1.2. The definition of ‘non-governmental organisation’ in this Law includes public associations and foundations. 1.3. This Law determines the rules for the establishment, activity, reorganisation and dissolution of non-governmental organisations, as well as their functioning, management, and relations with government bodies. 1.4. This Law does not apply to political parties, trade unions, religious organisations, local self-administration authorities and non-governmental organisations which are regulated by other laws.” 32. Under section 2, a public association is defined as an NGO established on the initiative of several individuals and/or legal entities associated on the basis of common interests in pursuing the objectives set out in the association’s by-laws, which does not engage in profit-making as a primary aim of its activity and which does not distribute any profit between its members. 33. Chapter IV (sections 22-24) regulates issues related to the activities and property of NGOs. In particular, under section 22.1, an NGO may engage in any type of activity which is not prohibited by the laws of the Republic of Azerbaijan and which is not contrary to the aims of the organisation as set out in its charter. 34. Chapter V (sections 25-27) contains rules on the management of NGOs. Section 25.1 provides that the internal structure of a public association, the powers of its governing bodies, their formation procedure and term of office and the rules on decision-making and representing the association shall be regulated by the public association’s charter, subject to the conditions set out in the NGO Act and other relevant legal provisions. In particular, the supreme governing body of a public association is the general assembly of members, to be convened not less than once a year, upon the initiative of the associations’s executive body, one of its founders or one third of its members (sections 25.2-25.3). The general assembly decides upon, inter alia, the following issues: (1) adoption of and amendments to the association’s charter; (2) use of the association’s property; (3) election of the association’s other governing bodies and early termination of their office; and (4) approval of the annual report, among other publications (section 25.5). The founders and members of the public association must be informed of the date and place of the general assembly at least two weeks in advance. Amendments to the association’s charter may be made only if the quorum of more than half of the association members is present. Decisions are adopted by a majority of votes of the participating members. Each member has one vote (section 25.6). It is required to keep written minutes of the general assembly, which shall be signed by the assembly’s president and secretary and, if necessary, distributed to all members (section 25.7). 35. Section 31 provides: “31.1. A non-governmental organisation that breaches the requirements of this Law shall be liable in accordance with the laws of the Republic of Azerbaijan. 31.2. If a non-governmental organisation commits actions incompatible with the objectives of this Law, the relevant executive authority [the Ministry of Justice] may issue a written warning to the organisation and give an instruction to remedy such breaches. 31.3. A non-governmental organisation may judicially challenge such warning or instruction. 31.4. If a non-governmental organisation receives, within one year, more than two written warnings or instructions to remedy the breaches of law, such organisation may be dissolved pursuant to a court order.” 36. Section 4 of the Law on environmental protection of 8 June 1999 provides, inter alia, that the carrying out of environmental monitoring and audits is within the competence of the relevant State authorities. Sections 7 and 73 of the Law on environmental protection define the rights and obligations of NGOs in the field of environmental protection. The essence of the NGOs’ rights, within the meaning of these provisions, is the civic defence of environmental rights, encouraging public debate on environmental issues and alerting the relevant State regulatory authorities to any environmental hazard or breach of the applicable environmental standards. The range of NGOs’ rights in this field does not include a right to conduct formal environmental inspections or enforce relevant environmental norms or standards. 37. Likewise, section 7 of the Law on ecological safety of 8 June 1999 vests rights in NGOs, inter alia, to make proposals on ecological safety to the relevant State authorities and alert the latter to breaches of environmental laws. NGOs are not vested with a right to enforce environmental laws. 38. Section 5.2 of the Law on entrepreneurial activity of 15 December 1992 prohibits political parties and NGOs from interfering with entrepreneurial activities. 39. The following are extracts from Recommendation CM/Rec(2007)14 of the Committee of Ministers to member States on the legal status of nongovernmental organisations in Europe: “... 44. The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members – or in the case of non-membership-based NGOs, its governing body – or in the event of bankruptcy, prolonged inactivity or serious misconduct. ... 46. The persons responsible for the management of membership-based NGOs should be elected or designated by the highest governing body or by an organ to which it has delegated this task. The management of non-membership-based NGOs should be appointed in accordance with their statutes. 47. NGOs should ensure that their management and decision-making bodies are in accordance with their statutes but they are otherwise free to determine the arrangements for pursuing their objectives. In particular, NGOs should not need any authorisation from a public authority in order to change their internal structure or rules. 48. The appointment, election or replacement of officers, and ... the admission or exclusion of members should be a matter for the NGOs concerned. ... ... 67. The activities of NGOs should be presumed lawful in the absence of contrary evidence. 68. NGOs can be required to submit their books, records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent. ... 70. No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent. ... 72. In most instances, the appropriate sanction against NGOs for breach of the legal requirements applicable to them (including those concerning the acquisition of legal personality) should merely be the requirement to rectify their affairs and/or the imposition of an administrative, civil or criminal penalty on them and/or any individuals directly responsible. Penalties should be based on the law in force and observe the principle of proportionality. ... 74. The termination of an NGO ... should only be ordered by a court where there is compelling evidence that the grounds specified in paragraph 44 ... above have been met. Such an order should be subject to prompt appeal.” 40. A comparative study of the relevant legislation of 25 out of 47 member States of the Council of Europe shows that an NGO can be membership-based or non-membership-based and can take a variety of legal forms applicable in the domestic legal order, such as an association, foundation, trust, charity or even company. A key factor in determining the level of scrutiny and control that an NGO will be subjected to is whether the body concerned is legally incorporated and enjoys legal personality. Normally, unincorporated associations enjoy a much wider scope of selfmanagement and are not interfered with unless they conduct activities which are illegal or prejudicial to public order. Legally incorporated NGOs, on the other hand, are often subject to more narrowly delimited rules and may be dissolved or face other sanctions in the event of non-compliance. 41. It appears that in a number of States an NGO can, in certain circumstances, be dissolved either, specifically, for failure to conduct its internal management in accordance with the requirements of domestic law or, more generally, for failure to comply with its own charter. Countries within this category include: (i) Austria, where an association can be dissolved by a decision of a competent public authority if, inter alia, it exceeds its field of activity or if it no longer fulfils its own statutory rules; (ii) the Czech Republic, where foundations, endowment funds and public benefit corporations can be dissolved by a court for failure to comply with their charter or the domestic law (however, associations cannot be dissolved for failure to conduct their internal management); (iii) Finland, where a court may on the basis of an action brought by the relevant public authority or an association member dissolve an association if it acts substantially against the law or substantially against the purpose defined for it in its rules; (iv) Hungary, where the courts may declare the dissolution of a civil society organisation if it has failed to operate for at least one year, or the number of its members is permanently below the number determined by law; (v) Italy, where the competent governmental authorities may dissolve foundations in the event that they are not conducted in a lawful manner and in conformity with their by-laws; (vi) Luxembourg, where associations may be dissolved for failure to comply with the objectives which they have assumed, or if they have gravely contravened their constitutive statute or the law; and foundations can be dissolved if they are no longer able to pursue the object for which they were created; (vii) Malta, where a voluntary organisation may be struck off the register of voluntary organisations and/or issued with a suspension order potentially permanently suspending all or part of its activities, if the organisation in question is not complying with the provisions of its statute or the relevant domestic law; (viii) the Netherlands, where a regional court can dissolve an association or foundation, inter alia, if its statutes do not fulfil the requirements of the law or if it acts substantially contrary to its own Articles; (ix) Poland, where the courts can, in situations where associations are found to be acting contrary to the law or infringing the provisions of their own charter, order their dissolution; (x) Romania, where the relevant law provides that an association’s failure to convene its general assembly or board of directors for more than one year results in its de jure dissolution; (xi) Russia, where an association may be dissolved if it repeatedly and seriously violates the requirements of the applicable domestic law; (xii) Slovakia, where courts can decide to dissolve non-profit organisations, foundations, non-investment funds and associations for contraventions of the applicable domestic law as regards their internal management; and (xiii) Turkey, where the Civil Code provides that associations can be dissolved for, inter alia, failure to compose the internal bodies required by law, hold their first general assembly meetings within the time-limits prescribed by law or to hold subsequent general assembly meetings regularly. 42. In a number of other member States an NGO may not be subject to involuntary dissolution for failure to conduct its internal management in accordance with the requirements of the domestic law or its charter (although the authorities may dissolve an NGO, inter alia, if it engages in illegal activities or if its goals and acts violate the public order). Countries within this category include Bulgaria, the United Kingdom (England and Wales), Estonia, France, Germany, Ireland, Latvia, Portugal, Slovenia, Spain, Sweden and Ukraine. 43. As for the range of alternative sanctions (apart from involuntary dissolution) that may be imposed on NGOs for various types of contraventions, such sanctions include: (i) fines (Austria, Malta, Russia, Slovakia, Slovenia, Turkey and Ukraine); (ii) suspension of activities (Finland, Hungary, Malta, Russia, Slovakia, Turkey and Ukraine); (iii) the invalidity of a decision taken in contravention of the organisation’s internal charter or applicable domestic law (Estonia, Hungary, Italy, Latvia and Poland); (iv) the dismissal of administrators (Italy and, in respect of foundations, Luxembourg); and (v) being struck off a special register and withdrawal of associated privileges such as tax benefits (Bulgaria, England and Wales (loss of charitable status), Ireland, Portugal and Spain).
| 1
|
train
|
001-105096
|
ENG
|
HUN
|
COMMITTEE
| 2,011
|
CASE OF HEGYI v. HUNGARY
| 4
|
Violation of Art. 6-1
|
András Sajó;Paulo Pinto De Albuquerque
|
4. The applicant was born in 1949 and lives in Martonvásár. 5. On 28 August 1995 the applicant filed for divorce with the Székesfehérvár District Court. After obtaining several forensic expert opinions, it dissolved the applicant’s marriage, established the amount of child maintenance and divided the matrimonial property on 4 February 2000. 6. On 19 October 2000 the Fejér County Regional Court brought a partial judgment concerning the sum of child maintenance, and remitted the remainder of the case. 7. In the resumed proceedings the Székesfehérvár District Court delivered a judgment on 5 November 2005. On appeal, the Fejér County Regional Court finally divided the matrimonial property on 22 June 2006. This judgment was served on the applicant on 10 August 2006.
| 1
|
train
|
001-108176
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,011
|
MICHNICOVA v. SLOVAKIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
|
1. The applicant, Ms Anna Michnicová, is a Slovak national who was born in 1957 and lives in Bratislava. She was represented before the Court by Advokátska kancelária Ivan Syrový, s.r.o., a law firm with its registered office in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is a judicial enforcement officer (súdny exekútor – “JEO”). 4. The status and powers of and procedures relating to JEOs are governed by the Enforcement Code (Law no. 233/1995 Coll., as amended - “the Code”), details concerning the remuneration of JEOs for carrying out enforcement proceedings being laid down in the Decree of the Ministry of Justice on Reimbursement and Compensation of JEOs (Decree no. 288/1995 Coll., as amended - “the Decree”). 5. In her official capacity, the applicant acted on behalf of the municipal District of Bratislava – Staré mesto (“the claimant”) in seeking the enforcement of an amount of money payable to the claimant by two individuals (“the defendants”) under a judgment of the Bratislava II District Court (Okresný súd) of 13 September 2000. The sum payable arose in consideration for the sale of non-residential premises by the claimant to the defendants. 6. Under the Decree, as it then stood, the basis for calculating the applicant’s remuneration was the amount of the claim that was being enforced (vymáhané). After the events complained of had taken place, this provision was changed in that the basis for the calculation of a JEO’s remuneration was to be the amount of the claim that had actually been enforced (vymožené). Should the entire claim be enforced, the remuneration would be 20% of that base figure (see paragraphs 33 to 35 in the “Relevant domestic law and practice” section below). 7. On 28 August 2003 the claimant requested that the applicant enforce the judgment and late-payment penalties against the defendants. The accumulated claim amounted in total to the equivalent of 30,150 euros (EUR). 8. On 11 September 2003 a single judge of the District Court authorised the applicant to carry out the enforcement. 9. On 24 September 2003 the applicant issued a notice of enforcement (upovedomenie o začatí exekúcie) by which she notified the defendants that the enforcement proceedings had commenced and that, unless they settled their debt within fourteen days, the applicant intended to enforce the judgment and costs of the enforcement by establishing a mortgage over real property belonging to the defendants and by seeking a forced sale of that property. 10. On 8 January 2004 the applicant issued an order for enforcement (exekučný príkaz) of the judgment. By this order she directed the defendants’ bank to deduct the judgment debt and costs of the enforcement from the defendants’ account. By these means, amounts equivalent to some EUR 1,450 and EUR 350 were recovered, respectively, for the benefit of the claimant and the applicant by way of her remuneration. 11. On 11 February 2004 the claimant and the defendants reached a settlement, in which: (i) the defendants acknowledged their debt (equivalent to EUR 30,410), consisting of the principal amount (EUR 30,150) and legal fees payable by them (EUR 260); (ii) the claimant waived one half of the debt on the condition that the defendants paid the remainder according to a payment schedule agreed upon, less the EUR 1,450 that they had already paid; and (iii) the claimant undertook to withdraw its enforcement petition on the condition that the defendants “settle all provable expenses of [the applicant] that [had been] incurred in connection with the enforcement of the clam [referred to above]”. 12. On 8 March 2004, the claimant lodged a request with the applicant for the enforcement to be discontinued. Reference was made to “an agreement on the payment of the owed amount”. 13. Between 26 May 2004 and 22 February 2005, the applicant requested that the District Court discontinue the proceedings and rule on her costs and the District Court invited the applicant to submit further information. The applicant responded, specifying the amount of her outstanding claim for remuneration at the equivalent of EUR 7,300. 14. In a letter dated 14 February 2005 the claimant informed the applicant that the defendants had paid the outstanding amount of their debt. 15. On 9 May 2005 the District Court discontinued the enforcement proceedings and ruled that the defendants were to pay the applicant the equivalents of EUR 11 by way of remuneration and of EUR 100 exclusive of value-added tax (“VAT”) by way of reimbursement for the costs of enforcement. 16. The District Court referred to Article 203 of the Code and to sections 5 and 16 of the Decree (see paragraphs 32 and 35 to 37 in the “Relevant domestic law and practice” section below). It based the calculation of the applicant’s remuneration on the amount that had been actually obtained for the claimant through the direct involvement of the applicant (EUR 1,450). The amount of remuneration already paid (EUR 350) was deducted. 17. The decision of 9 May 2005 stated that it was not subject to appeal. Later on, the Code was amended so that a decision on the remuneration and reimbursement of a JEO’s costs was made subject to appeal (see paragraph 30 in the “Relevant domestic law and practice” section below). 18. On 18 July 2005 the applicant challenged the ruling of 9 May 2005 concerning her remuneration by way of a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd) (see paragraph 27 in the “Relevant domestic law and practice” section below). 19. She relied on a judgment (nález) of the Constitutional Court of 17 December 2004 in case no. II. ÚS 31/04 (see paragraph 38 in the “Relevant domestic law and practice” section below) and argued, first of all, that her claim for remuneration constituted “possessions” for the purposes of Article 1 of Protocol No. 1. 20. The applicant further argued that there was no justification in law for limiting the amount of her remuneration by calculating it on the basis of the amount actually enforced through her direct involvement. She submitted that the object and purpose of the relevant rules had required that the amount of her remuneration should have been calculated on the basis of the total amount paid by the defendants to the claimant while the enforcement proceedings were pending. This was implied, inter alia, in section 5(2) of the Decree read in conjunction with Article 46 § 3 of the Code (see paragraphs 28 and 36 in the “Relevant domestic law and practice” section below), which regulated the remuneration of a JEO in the event that a defendant settled his or her debt voluntarily. 21. A different approach would allow any defendant to circumvent the law by delaying payment of his or her debt until enforcement proceedings commenced and then paying the debt directly to the creditor without having to bear the consequences, such as the costs of the enforcement. A distinction between amounts paid through the involvement of a JEO and directly to the creditor without the involvement of a JEO was unfounded and unlawful. 22. Accordingly, the applicant asserted a violation of her rights under Article 1 of Protocol No. 1 and its constitutional counterpart. 23. On 23 October 2007 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded. 24. The Constitutional Court observed that the applicant’s entitlement to remuneration as such had not been contested but that what remained disputed was that remuneration’s amount. 25. In those circumstances, her claim did not amount to an existing “possession”. Neither could her hope of her entitlement being realised as a specific amount in accordance with her interpretation of the relevant laws be considered “legitimate” so as to amount to a “possession” under the applicable case-law. 26. The Constitutional Court accepted that the present decision was “at [a] certain variance” with its above-cited judgment in case no. II. ÚS 31/04. However, that judgment had concerned a specific problem relating to VAT. Even though it had not been expressly stated in that judgment, a JEO liable to pay VAT on his or her remuneration had a legitimate expectation to have that amount of tax reimbursed by a defendant. The present decision was thus fully in compliance with the Court’s jurisprudence. 27. Article 127 provides: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 28. Under Article 46 § 3, as applicable at the relevant time, a JEO is to “abandon” (upustí) enforcement proceedings if the debtor has complied with its obligations as adjudicated and has settled the costs of the enforcement. 29. The supervising court is to discontinue (zastaví) the enforcement if the person who initiated the enforcement has so requested (Article 57 § 1 (c)). 30. Under the Code, as applicable at the relevant time, no appeal lay against a decision on costs upon the discontinuation of enforcement proceedings. However, on 1 September 2005 an amendment (Law no. 341/2005 Coll.) to the Code entered into force, pursuant to which such decisions are now subject to appeal (Article 58 § 5 of the amended Code). 31. In respect of enforcement carried out under the Code, a JEO is entitled to remuneration, reimbursement of costs and compensation for time spent on the matter. These expenses are normally to be borne by the debtor (Articles 196 and 197 § 1) (see also the Court’s decisions of 28 June 2011 in the cases of Mihal v. Slovakia no. 23360/08 (§§ 24 and 25) and no. 31303/08 (§§ 36 and 37)). 32. If the creditor causes the discontinuation of enforcement proceedings, the court can order him or her to cover the necessary costs of the enforcement (Article 203 § 1). This provision implies that the court has the ability, not an obligation, to make an order for costs against the creditor. Such an order presupposes an analysis of procedural responsibility (zavinenie) for the discontinuation. The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor’s responsibility should it be established (a decision by the Constitutional Court of 23 March 2005 in case no. I. ÚS 48/05) (see also Mihal v. Slovakia, no. 3133/08, cited above, §§ 38-40). 33. Under section 4(1), as applicable at the relevant time, the basis for calculating a JEO’s remuneration was the amount of the claim that was being enforced (vymáhané). 34. With effect as from 1 May 2008, section 4(1) of the Decree was amended (Decree no. 141/2008 Coll.) to the effect that a JEO’s remuneration was no longer to be calculated on the basis of the amount of claim that was being enforced (vymáhané), but rather on the basis of the amount of the claim that had actually been enforced (vymožené). An introductory report (predkladacia správa) and an explanatory report (dôvody) on the amendment refer to “interpretative question marks” and “inconsistent practice in applying” the existing rules in respect of the basis for calculating the remuneration of judicial enforcement officers. The amendment has no retroactive effect. 35. Under section 5(1), a JEO’s remuneration is to be 20% of the figure used as the basis for calculation. 36. In the event that defendants settle their debts themselves and the enforcement is consequently “abandoned” under Article 46 § 3 of the Code, the JEO’s remuneration is to be reduced to one half of the amount calculated pursuant to the abovementioned rules (section 5(2)). 37. If a JEO succeeds in enforcing part of a claim before its enforcement is discontinued, the JEO’s remuneration is to be calculated on the basis of the amount actually enforced (vymožené) (section 16(2)). This provision applied at the relevant time and has remained unaffected throughout the subsequent legislative developments. 38. On 17 December 2004 the Constitutional Court gave a judgment (nález) in an unrelated case no. II. ÚS 31/04, concerning the applicability of VAT to the remuneration of JEOs. In this judgment, the Constitutional Court held that: “The term ‘possessions’ encompasses things, rights and claims. The Constitutional Court therefore considers that compensation in respect of costs of the proceedings, which is due to a [JEO] upon the discontinuation of enforcement proceedings, constitutes possessions, which are acquired by virtue of a final and binding ruling of an ordinary court awarding it. This claim fully enjoys the protection of [...] Article 1 of Protocol No. 1, because compensation in respect of costs of the proceedings is undoubtedly a claim of a party to the proceedings against another party to the proceedings, which is moreover enforceable as any other financial claim. A claim for compensation of costs of proceedings has to be allowed to the party concerned in the entire scope envisaged by statute, which includes [VAT] in so far as the party concerned is liable to pay that tax under the applicable statute on the amount awarded.”
| 0
|
train
|
001-113812
|
ENG
|
CZE
|
CHAMBER
| 2,012
|
CASE OF BUREŠ v. THE CZECH REPUBLIC
| 3
|
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
|
6. The applicant was born in 1985 and lives in Brno. He is a violoncello player and has been diagnosed as having a psycho-social disability. At the material time he weighed 64 kg and was 176 cm tall. In the past, he has been treated in Italian psychiatric hospitals as a voluntary patient. At the time of the events at issue, he was using Akineton, a calming psychiatric medication prescribed to him by his psychiatrist. 7. On 9 February 2007 the applicant inadvertently overdosed on Akineton. In the evening, he left his flat and went to buy some food. Being under the influence of the medication, he did not notice that he was wearing only a sweater, but no trousers or underwear. On the way he was stopped by a police patrol that assumed that he was a drug addict and called an ambulance, which took him to Brno-Černovice Psychiatric Hospital. The record drawn up by the ambulance staff states that the applicant was receiving psychiatric treatment and that he was calm during transport. 8. At the hospital he was examined by Dr V., who did not find any injuries on the applicant’s body and sent him to the sobering-up centre in the same hospital at about 8 p.m. The applicant was calm during the medical examination. In the sobering-up centre he was again examined by Dr H., who confirmed that there were no injuries on the applicant’s body when he was admitted to the centre. 9. On 10 February 2007 at 7:24 a.m. the applicant was transferred to the Intensive Psychiatric Care Unit where, according to the admission record, he had visible abrasions on the front of his neck, both wrists and both ankles, caused probably by friction against textile, and abrasions of an unspecified different type on his knees. He complained about his treatment in the sobering-up centre to the hospital authorities, but they did not take any action. 10. On 15 February 2007 the applicant was examined by a neurologist, who stated that as a result of the use of straps the applicant suffered severe paresis of the left arm and medium to severe paresis of the right arm. He began a course of intensive treatment at the Rehabilitation Unit. 11. The applicant remained in the hospital involuntarily until released on 13 April 2007. 12. However, because of his two-month hospitalisation, he was confused and was not able to fully take care of himself. He voluntarily returned to the hospital on 14 April 2007 and remained there until 1 July 2007. 13. The following facts are disputed by the parties. 14. According to the applicant, at 8.10 p.m. on 9 February 2007 he was strapped to a bed with leather straps around his wrists, knees and ankles by two male nurses, Mr M. and Mr H. While strapping him, they kneeled on his chest and verbally abused him. He remained strapped for the whole night, until 6.30 a.m. The staff did not check up on him during that time. As the straps were too tight, he struggled to breathe and as a result of insufficient blood circulation the nerves in his arms were damaged. 15. According to the Government the applicant was strapped to a bed for three intervals, namely, from 8.10 p.m. to 10 p.m., 4.30 a.m. to 5 a.m. and 6.30 a.m. to 7.15 a.m. 16. They submitted a record from the sobering-up centre containing the following information. When brought to the centre the applicant was intoxicated and was put to bed. He was unstrapped at 10 p.m. At 4.30 a.m. he attacked a nurse and was strapped again. Checks were carried out. The applicant was restless. At 6.30 a.m. he was checked on and again strapped. The record noted that he showed destructive behaviour. He was released at 7.15 a.m. and sent to the psychiatric hospital. 17. The version of the record submitted by the applicant and obtained from his medical files contains less information. The information about the release of the applicant at 10 p.m. is illegible. According to the Government, the version submitted by the applicant was an incomplete version sent to the psychiatric hospital as an accompanying document. 18. On 12 February 2007 the hospital informed the Brno Municipal Court (městský soud) that the applicant had been detained because he showed signs of a mental illness and was a danger to himself and his surroundings. He was described as –“restless, aggressive and suspected of intoxication by psycho-stimulants”. 19. On 16 February 2007 the court began reviewing the lawfulness of the applicant’s involuntary admission under Article 191b of the Code of Civil Procedure. At the same time, it appointed an attorney, Ms P., to represent the applicant in the proceedings. On the same day a court employee visited the hospital and questioned the applicant’s treating doctor, Dr V., in the absence of the applicant and his representative. Dr V. testified that the applicant had been admitted to the hospital due to his confusion, restlessness and inappropriate behaviour and that he had been intoxicated when admitted. He further stated that the applicant was only partly able to understand the proceedings. The court employee did not question or even see the applicant because Dr V. told her that contact with him “would not be entirely beneficial”. 20. On the same day and without any further evidence the court ruled that the applicant’s involuntary admission had been lawful because he suffered from an illness that made him dangerous to himself and his surroundings. The decision was served on the applicant’s representative only. The latter did not take part in the proceedings, not being aware of them as the decision on her appointment was sent to her together with the decision on the merits. The applicant never saw her during his detention. 21. After his release in July 2007, the applicant contacted a local office of the Mental Disability Advocacy Center (“the MDAC”). On 10 July 2007 an MDAC lawyer lodged an appeal on his behalf, applying at the same time for a waiver of the deadline for lodging the appeal. 22. On 20 August 2007 the Municipal Court granted the waiver. However, on 31 October 2007, the Brno Regional Court (krajský soud), terminated the appeal proceedings without deciding on the merits. It stated that the applicant had been released on 13 April 2007, that on 30 May 2007 the Municipal Court had stayed the proceedings on the applicant’s continuing detention and that, therefore, the court did not have the authority to deal with the case. 23. In the meantime, on 23 July 2007, the applicant lodged an action for nullity (žaloba pro zmatečnost) under Article 229 § 1 c) of the Code of Civil Procedure seeking to have the Municipal Court’s decision of 16 February 2007 quashed on the ground that he had been denied the right to participate in the proceedings and had not been properly represented. On 22 May 2008 the Municipal Court dismissed the applicant’s action, finding, inter alia, that Ms P. had not been wholly inactive, referring to a letter of 26 February 2007 by which she had allegedly tried to establish contact with the applicant, but which, according to the applicant, had never been delivered to him. On 25 February 2009 the Regional Court upheld the decision. 24. On 5 February 2008 the applicant lodged a constitutional appeal challenging the decision of 31 October 2007 and alleging a violation of his rights to liberty, a fair trial and an effective remedy because the Regional Court had failed to rule on the merits of his appeal and thus the legality of his detention in the psychiatric hospital. 25. On 18 March 2008 the Constitutional Court (Ústavní soud) dismissed his appeal on the grounds that he had not exhausted all available remedies. It held that the applicant should have lodged a plea of nullity under Article 229 § 4 of the Code of Civil Procedure against the 31 October 2007 decision of the Regional Court. 26. After ruling on the lawfulness of the applicant’s involuntary admission to the hospital, the Municipal Court continued proceedings under Article 191d of the Code of Civil Procedure to review the lawfulness of the applicant’s continuing detention. On 6 March 2007 a forensic psychiatric expert was appointed for these purposes. On 30 May 2007 the court terminated the proceedings without deciding on the merits, the applicant having been released in the meantime. 27. On 7 June 2007 the applicant filed a criminal complaint concerning the measure of restraint applied to him and alleged ill-treatment on the night from 9 to 10 February 2007 in the sobering-up centre of the psychiatric hospital. 28. He was questioned by the police on 29 June 2007 and gave a full account of the events. The police then questioned numerous other persons. 29. The male nurses on duty, Mr M. and Mr H., did not recall the applicant at all and were not able to provide any specific information about him. Mr. M noted that during the winter of 2007 checks had been always carried out in accordance with the instructions of the psychiatric hospital management. 30. The third nurse on duty that night, Ms K., stated that the applicant had been strapped to the bed because he had been restless and intoxicated by an unknown substance and had refused to undergo a blood test to identify the substance. She admitted that it was possible that regular checks every twenty minutes might not have been performed due to the high number of patients at the centre that night. She also alleged that the applicant had attacked a male nurse at 4.30 a.m. but she could not remember who exactly. 31. Dr H., who had been on duty at the sobering-up centre that night, confirmed that the applicant had had no injuries when he had been admitted. He noted that the applicant had been strapped to the bed due to his restlessness but that he and other staff had duly checked on him. 32. Nurse P. recalled that while she was taking over patients from Ms K. at around 6 a.m. in the morning of 10 February, the applicant’s arms and legs had been strapped. They had tried releasing the straps one by one but because he defended himself each time a limb was released he was strapped again. 33. In his report of 10 December 2007 commissioned by the police, a forensic expert, Dr V., stated that the applicant had suffered bilateral severe paresis of the elbow nerves as a result of compression of the nerves and blood vessels. He confirmed that these injuries corresponded to the cause as described by the applicant. According to him, the injury on the applicant’s left arm limited his ability to play the violoncello. He concluded that the injury would have a long-lasting effect which was unlikely to be permanent. 34. On 11 December 2007 the Brno-Komárov Municipal Police Directorate (městské ředitelství policie) terminated the criminal proceedings, finding that no criminal offence had been committed regarding the applicant’s strapping on the night of 9 to 10 February 2007. It held that the applicant had suffered the injuries partly as a result of the staff’s failure to check on him regularly but that the extent of the guilt of individual suspects could not be determined. It also held that the injuries had almost healed and that the applicant was partly responsible for them. 35. The applicant appealed, disputing the conclusions of the police, and requested that the doctors and nurses give evidence again. 36. On 12 February 2008 the Brno Municipal Prosecutors’ Office (městské státní zastupitelství) dismissed the applicant’s appeal. Without examining any additional evidence it stated that the strapping of the applicant on account of his aggressive behaviour at the time of his admission to the sobering-up centre had been in compliance with the law and the hospital’s internal rules and he had been checked on every twenty minutes. The applicant had been strapped from 8.10 p.m. to 10 p.m., from 4.30 a.m. to 5 a.m. and from 6.30 a.m. 37. The applicant lodged a constitutional appeal claiming a violation of Articles 3, 6 § 1 and 13 of the Convention. He alleged that the investigation had not been effective because, inter alia, he had not been allowed to be present during the questioning of witnesses and put questions to them. 38. On 30 October 2008 the Constitutional Court dismissed his constitutional appeal as manifestly ill-founded. It held that there was no right to have a third person prosecuted so the applicant could claim his rights only in civil proceedings for damages and protection of his personality rights (ochrana osobnosti). It further found no violation of procedural obligations as developed by the Court under Article 3 of the Convention. It noted that the police had conducted a number of interviews and examined other evidence and that the investigation had also been independent and prompt. Lastly, it held that it had no jurisdiction to rule on the ill-treatment in the hospital because that was an instantaneous act, whereas it could only rule on interference with rights that was ongoing and that could be remedied by a decision on its part. 39. On 8 December 2008 the applicant instituted proceedings for protection of his personality rights against Brno-Černovice Psychiatric Hospital, claiming a violation of his right to liberty, inhuman treatment and interference with his health and physical integrity. 40. On 19 January 2012 the Brno Regional Court rejected his claim, holding that the applicant’s internment in the sobering-up centre and the use of restraints had been necessary for his own protection and that of his surroundings. 41. The applicant appealed and the proceedings are pending. 42. Under Article 191a a health-care facility that admits a patient against his or her will must inform the competent court within twenty-four hours. 43. Under Article 191b § 1 a court has to review the lawfulness of an involuntary admission to a health-care facility within seven days. Article 191b § 2 provides that the patient has a right to be represented by counsel of his or her own choosing. If he or she does not have counsel, the court shall appoint him or her an attorney. In accordance with Article 191b § 3, the court shall assess evidence, hear the detained person, his or her treating doctor and other persons at the detained person’s request unless it considers it unnecessary. 44. Under Article 191c an appeal can be lodged against a decision taken under Article 191b, but does not have a suspensive effect. The health-care facility can release the patient even if a court has declared that the involuntary admission was lawful. 45. Article 191d § 1 provides that if the court finds that the admission was lawful, it shall continue to review the lawfulness of the continued confinement. Pursuant to paragraph 2, the court shall appoint an expert to assess the necessity of the confinement. That expert must not be working in the health-care facility where the person is detained. In accordance with paragraph 3 the court shall hold a hearing and summon the patient and his or her counsel (provided that according to the treating doctor or written expert opinion the patient is able to follow and understand the meaning of the proceedings). At the hearing, the court shall hear the expert, the treating doctor if needed and the patient and assess any other relevant evidence. Its decision must be issued no later than three months from the decision by which the admission to the health care facility was approved. 46. Under Article 191f the patient, his or her counsel, guardian and other persons close to him may, before the expiration of the time for which his or her admission to the health-care facility was approved, request a new medical examination and release, if there is a reasoned presumption that continued confinement is not necessary. 47. Under Article 229 § 1 c) a final court decision may be challenged by an action for nullity on the ground that a party to the proceedings lacked legal capacity to act or could not attend the court and was not properly represented. Paragraph 4 provides that an action for nullity may also be lodged against a final decision of an appellate court by which an appeal was dismissed or the appellate proceedings were terminated. 48. Under section 23(4)(b) a person can be involuntarily hospitalised if he shows signs of a mental illness and is a danger to himself or his surroundings. 49. Section 17(1) defines an alcohol and drug sobering-up centre as a health-care facility established by a regional self-governing unit. 50. Section 17(2) stipulates that should a health-care facility find that a person’s life is not endangered by failure of basic vital functions but that he or she is under the influence of alcohol or another drug and cannot control his or her behaviour, thereby directly endangering him or herself or other persons, public order or property, or is causing public annoyance, that person shall undergo treatment and stay at the sobering-up centre for however long is necessary for the acute intoxication to subside. 51. This guideline stipulates, inter alia, the following: “The use of measures of restraint must be considered as a last resort in cases when it is necessary for the protection of the patient, other patients, the patient’s surroundings and staff of psychiatric facilities. They may be used only after all other possibilities have been exhausted. Any decision to restrain the patient must be sufficiently grounded. Restraint cannot be used to facilitate treatment or to deal with a restless patient. Potential causes of problematic behaviour, for example, pain, discomfort, side effects of medicinal products, stress, interpersonal problems between the caregivers and the patient, or other illnesses must always be identified. The use of measures of restraint is justified only if a removable cause of the patient’s behaviour cannot be found or in situations when the risk arising from the patient’s behaviour is unacceptably high. The benefit of the use of restraining means must outweigh the risks ... 2. Measures of restraint can be used only exceptionally and only when the patient behaves in a way which endangers himself and his surroundings, and not on an educational or corrective basis. In the case of each individual patient it is necessary to use the most gentle and appropriate means of restraint ... 5. A patient restrained by these means shall be checked on on a regular basis, intervals between the checks shall be specified, provisions shall be put in place to prevent the patient hurting himself or suffering from dehydration, malnutrition, hypothermia and pressure ulcers, and to allow for personal hygiene. Measures of restraint should be used for the shortest time possible, and during checks the need for the measures and the possibility of using less restraint should be reassessed ... 6. The doctor shall decide on the use of measures of restraint, and make a record that shall always include: the name of the person who ordered the measure of restraint, the type of restraint used, the reason for using it, the time when restraint was employed and the time when it ended, the frequency of checks by the medical staff and the doctor, a description of the person’s physical and mental condition ... A member of the medical staff shall inform the doctor of any change in the patient’s symptoms. The record on the use of restraint shall be subsequently signed by the head doctor during the ward round.” 52. In its section on the use of restraints the Guidelines contain similar principles as the above-mentioned Guideline no. 1/2005 of the Journal of the Ministry of Health. In particular they state that mechanical restraints should be used only as a matter of last resort. Strapping to a bed should be applied only in cases of serious manifestations of distress endangering surroundings, auto-aggressive manifestations with immediate risk of selfharm or suicide or conditions that will with the highest probability result in these manifestations. They also state that all circumstances connected with the use of restraints must be transparently and clearly documented. Every use of restraints must be recorded in a concrete way, including, inter alia, the time when the restraints were applied and removed and checks on the patient. 53. On 14 January 2009 the Supreme Court adopted an opinion on this matter, because the courts had not been dealing with cases concerning proceedings to decide on the lawfulness of admission to a health-care facility (Article 191b of the Code of Civil Procedure) and continuing confinement therein (Article 191d of the Code of Civil Procedure) in a uniform manner. It held, inter alia, that if the detained person is released there are no more reasons for continuing the proceedings either under Article 191b or 191d and both should be discontinued. 54. The Articles, drawn up by the International Law Commission of the United Nations, are largely considered to contain rules of customary international law. They stipulate, inter alia, the following possibilities of attribution of a conduct to a State: “1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.” “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.” In its commentary to Article 5, the International Law Commission explained that the rule dealt with situations when entities which were not considered organs of a State exercised functions of a public character normally exercised by State organs, and the conduct of the entity was related to the exercise of the governmental authority concerned. It gave the power of detention as an example of such a public function. 55. Article 27, entitled “Seclusion and restraint” stipulates: “1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2. Such measures should only be used under medical supervision, and should be appropriately documented. 3. In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person’s medical records and in a register. 4. This Article does not apply to momentary restraint.” 56. The CPT standards contain the following rules on restraining patients in psychiatric establishments: “Involuntary placement in psychiatric establishments Extract from the 8th General Report [CPT/Inf (98) 12] 47. In any psychiatric establishment, the restraint of agitated and/or violent patients may on occasion be necessary. This is an area of particular concern to the CPT, given the potential for abuse and ill-treatment. The restraint of patients should be the subject of a clearly-defined policy. That policy should make clear that initial attempts to restrain agitated or violent patients should, as far as possible, be non-physical (e.g. verbal instruction) and that where physical restraint is necessary, it should in principle be limited to manual control. Staff in psychiatric establishments should receive training in both non-physical and manual control techniques vis-à-vis agitated or violent patients. The possession of such skills will enable staff to choose the most appropriate response when confronted by difficult situations, thereby significantly reducing the risk of injuries to patients and staff. 48. Resort to instruments of physical restraint (straps, strait-jackets, etc.) shall only very rarely be justified and must always be either expressly ordered by a doctor or immediately brought to the attention of a doctor with a view to seeking his approval. If, exceptionally, recourse is had to instruments of physical restraint, they should be removed at the earliest opportunity; they should never be applied, or their application prolonged, as a punishment ... 50. Every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patient’ This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.” “Means of restraint in psychiatric establishments for adults Extract from the 16th General Report [CPT/Inf (2006) 35] 43. As a general rule, a patient should only be restrained as a measure of last resort; an extreme action applied in order to prevent imminent injury or to reduce acute agitation and/or violence ... 52. Experience has shown that detailed and accurate recording of instances of restraint can provide hospital management with an oversight of the extent of their occurrence and enable measures to be taken, where appropriate, to reduce their incidence. Preferably, a specific register should be established to record all instances of recourse to means of restraint. This would be in addition to the records contained within the patient’” “118. At Brno Psychiatric Hospital ... [t]he restraints would be applied either on the patient’s own bed or in a separate room close to the nurses’ office. A protocol on the use of immobilisation was in force, but the protocol does not mention the surveillance intervals; it appears that the hospital staff had adopted a practice to monitoring an immobilised patient every twenty minutes. The delegation was pleased to note that registers recording the use of restraints had been introduced on the wards of Brno Psychiatric Hospital, thus meeting a longstanding CPT recommendation. However, the delegation found that the entries were not always meticulously kept; the release time and, on occasion, the moment of application of the immobilisation were not recorded. As indicated above (cf. paragraph 114), in the CPT’s view, patients who are immobilised should always be subject to continuous, direct personal supervision by a member of staff. However, the delegation was told that a pilot project on ward 12 to have patients accompanied by a member of staff for the full duration of the immobilisation had failed due to a lack of staff. Nevertheless the CPT considers that hospital management should ensure the permanent presence of a staff member whenever a patient is immobilised. The CPT recommends that in Brno Psychiatric Hospital: - the register on restraints clearly records the duration of the measure, as well as all other events that occur during the period of restraint; - the protocol on restraints be amended in order to include a paragraph on supervision of an immobilised patient. Further, the CPT recommends that all patients who are immobilised are always subject to continuous, direct personal supervision by a member of staff.”
| 1
|
train
|
001-98596
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF YELDASHEV v. RUSSIA
| 4
|
Violation of Art. 6-1;No violation of Art. 6-1;No violation of P1-1
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
|
6. The applicant was born in 1961 and lives in Noginsk, a town in the Moscow Region. 7. The applicant is a retired serviceman. He enlisted in 1980, and at the material time he was a captain of the Space Force, occupying on a contractual basis the post of a deputy director of social and political education. 8. On 24 July 1998 the Noginsk Town Court ordered the command to grant the applicant an early discharge because of the command's failure to fulfil their obligations under the contract. On 4 August 1998 this judgment became binding but was not enforced immediately, and the applicant resubmitted his claim. 9. On 21 June 2002 the 94th Garrison Military Court ordered the command to discharge the applicant for health reasons, to provide him with housing, and to pay 7,000 Russian roubles (RUB) in damages. On 24 July 2002 this judgment became binding in the part concerning the discharge and housing. The part concerning the damages was referred for a retrial. 10. On 3 September 2002 the 94th Garrison Military Court ordered the command to pay RUB 23,817.60 in pecuniary and non-pecuniary damage. On 9 October 2002 this judgment became binding. 11. On 9 June 2003 the applicant received the flat. 12. On 27 June 2003 the applicant was discharged from service. 13. On 26 April 2004 the applicant submitted enforcement papers in respect of the damages, and on 5 February 2005 he received the sum due. 14. At the material time judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by Government's Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007).
| 1
|
train
|
001-90537
|
ENG
|
ARM
|
CHAMBER
| 2,009
|
CASE OF GASPARYAN v. ARMENIA (No. 1)
| 4
|
Violation of Article 11 - Freedom of assembly and association
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
|
4. The applicant was born in 1948 and lives in Yerevan. 5. In 2003 a presidential election was held in Armenia with its first and second rounds taking place on 19 February and 5 March respectively. The applicant acted as an authorised election assistant (վստահված անձ) for the main opposition candidate in this election. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties. 6. According to the materials of the case, the applicant attended one of these rallies on 23 February 2003. The applicant denied this fact and alleged that he had not attended the rallies. 7. On 26 February 2003 at 8 a.m. the applicant was visited at home by two police officers from the Shengavit District Police Department (ՀՀ ոստիկանության Շենգավիթի բաժին). He was informed that the chief of the police department wished to speak to him and was taken to the police station. 8. At the police station an administrative case was initiated against the applicant who was charged under Article 172 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) with minor hooliganism on the ground that he had participated in the unauthorised demonstration of 23 February 2003 and had violated public order. 9. On the same date, several hours later, the applicant was taken to the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան). There he was brought before Judge H. who, after a brief hearing, found the applicant guilty as charged and sentenced him to ten days of administrative detention, finding that: “On 23 February 2003 on Mashtots Avenue in Yerevan [the applicant] participated together with a group of people in an unauthorised demonstration and march, and violated public order.” 10. The decision stated that it could be protested against by the prosecutor under Article 289 of the CAO. 11. The applicant was taken to a detention facility to serve his sentence. 12. The applicant alleged that on 1 March 2003 he was taken from his cell to another room. On the table in this room there were two sample applications, one of which was handed to him with the instruction to write and sign his name on it. The content of the application was a statement which declared: “I regret what I have done and request a review of my case.” This request was addressed to the President of the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարանի նախագահ). The applicant alleged that he had to sign this document, even though he disagreed with its contents, in order to be released and to be able to perform his authorised election assistant duties in the second round of the presidential election. 13. On the same date the President of the Criminal and Military Court of Appeal reviewed the applicant’s conviction, finding that: “[The applicant, according to the decision of the District Court, was subjected to administrative detention] ... for attending an unauthorised demonstration in the Kentron District of Yerevan on 23 February 2003 and violating public order. Having familiarised myself with [the applicant’s] appeal and the materials concerning the administrative offence, I find that the penalty imposed on [the applicant] must be changed.” 14. The President changed the penalty to an administrative fine of 2,000 Armenian drams (AMD) (approximately 3 euros (EUR) at the material time) and ordered the applicant’s release. 15. On the same evening the applicant was released from detention after having served about three days of his sentence. 16. On 26 March 2003 the applicant sent applications to the Ministry of Justice (ՀՀ արդարադատության նախարարություն), the Court of Cassation (ՀՀ վճռաբեկ դատարան) and the Presidential Human Rights Commission (ՀՀ նախագահին առընթեր մարդու իրավունքների հարցերի հանձնաժողով), arguing that he had never participated in any demonstrations, and in particular the one held on 23 February 2003, and seeking a review of his case. 17. By a letter of 3 April 2003 the Court of Cassation forwarded the applicant’s application to be dealt with by the Criminal and Military Court of Appeal. 18. By a letter of 11 April 2003 the Ministry of Justice informed the applicant that the rights of persons charged with an administrative offence were defined in Article 276 of the CAO and should have been invoked by the applicant during the examination of his case. The letter further stated that the decision of 26 February 2003 could be protested against by the prosecutor. 19. By a letter of 16 April 2003 the President of the Criminal and Military Court of Appeal informed the applicant that his application of 26 March 2003 could not be examined, since the applicant had missed the prescribed 10-day time-limit for appeal. 20. By a letter of 17 April 2003 the General Prosecutor’s Office gave a similar reply to the applicant’s application addressed to the Human Rights Commission. 21. On 27 April 2003 the applicant again complained to the Ministry of Justice that the decision of 26 February 2003 had been unlawful since he had not participated in any demonstration. 22. By a letter of 6 May 2003 the Ministry of Justice gave the same reply. 23. On 10 June 2003 the Department for the Enforcement of Judicial Acts (Դատական ակտերի հարկադիր կատարման ծառայություն – “the DEJA”) instituted enforcement proceedings on the basis of an execution writ issued by the District Court on 15 May 2003. 24. The applicant alleged that, around that period, he was visited at home by an officer of the DEJA who informed him that the decision of 26 February 2003 had been reviewed on 1 March 2003 and a fine had been imposed. He further alleged that only then did he become aware of the existence of the decision of the President of the Criminal and Military Court of Appeal of 1 March 2003. The applicant paid the fine. 25. On 12 June 2003 the DEJA decided to terminate the enforcement proceedings since the terms of the execution writ had been complied with. 26. For a summary of the relevant domestic provisions and international documents and reports see the judgment in the case of Galstyan v. Armenia (no. 26986/03, §§ 25-32, 15 November 2007).
| 1
|
train
|
001-114978
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,012
|
STÜRMER AND OTHERS v. GERMANY
| 4
|
Inadmissible
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
|
1. The applicants, Mr Christian Stürmer and ten others, are German nationals. Their names and personal details are listed in the annex at the end of this decision. 3. The applicants were born between 1959 and 1962 with deformities of their upper and/or lower extremities and other malfunctions of inner organs, resulting from the fact that their mothers had taken the tranquilliser “thalidomide”, sold in Germany under the name “Contergan”, during a certain, sensitive period of pregnancy. About 3,000 persons suffering from likewise impacts of the drug are living in Germany alone. 4. “Contergan” was produced by the pharmaceutical manufacturer G. GmbH, a company with limited liability, from 1957 until November 1961. It was available on the German market without a medical prescription and was sold as an analgesic suitable to soothe discomforts caused by pregnancy. 5. In 1970 the criminal proceedings for injuries caused by negligence against the management and the owners of the manufacturer company G. were stayed. Civil proceedings on compensation for damages lodged by some affected children or their parents were pending. 6. On 10 April 1970 the pharmaceutical manufacturer G. covenanted to pay a lump sum of 100 million Deutschmarks (DEM - 51 million euros (EUR)) to the victims in order to settle all compensation claims. 7. On 17 December 1971 a public law foundation “Hilfswerk für behinderte Kinder” was established by federal law in order to facilitate a settlement with all persons affected and in order to provide a solid financial basis for benefit payments. The foundation received DEM 100 million from the manufacturer and the same amount from the German State. Each person affected by “Contergan” was eligible for a single payment of at least DEM 1,000 and at maximum DEM 25,000 and additionally monthly pensions between DEM 100 and DEM 450. All payments from this fund were exempt from taxes and were not credited against other social benefits. All legal claims against the manufacturer expired by law. The law entered into force on 31 October 1972. 8. On 8 July 1976 the Federal Constitutional Court found the Law on Establishment of a Foundation of 17 December 1971 – henceforth: the 1971 Act – to be compatible with the provisions of the Basic Law, in particular compatible with the property protection of Article 14 of the Basic Law. It held that the legislator voluntarily incurred a position as a creditor and was therefore constitutionally obliged to guarantee the liquidity of the foundation in future and to safeguard that the pensions to the victims were adequate. 9. In 1976 and in 1980 the financial funds of the foundation were supplemented by DEM 50 and DEM 170 million by the German State. Since 1997 the monthly pensions have been financed entirely from the federal budget. From 1976 until 2002 the height of the pensions had been raised nine times. 10. In October 2005 the foundation was renamed to Contergan Foundation (Conterganstiftung für behinderte Menschen). The persons affected by “Contergan” received a non-recurring capital sum and again a monthly life-long pension depending on the established degree of health impairment. Payments from the foundation could not be credited against any other social benefit payment in order to ensure that the aggrieved persons received the pension as an extra monetary benefit. 11. On 1 July 2008 the monthly pensions were doubled by the First Law on Amending the Contergan Foundation Law. According to the legislator the higher pension should contribute to compensate for the increasing secondary health deterioration of the now middle-aged persons affected by “Contergan”. 12. On 30 June 2009 the Second Law on Amending the Contergan Foundation Law entered into force. The Foundation was endowed with a further EUR 100 million of which EUR 50 million were provided by the manufacturing company G. GmbH and the rest by the Federal Republic of Germany. The amendment slightly increased the monthly pensions (now between EUR 248 and EUR 1,116) which are still funded entirely from the federal budget and the non-recurring payment (Kapitalentschädigung) between EUR 1,278 and EUR 12,782 depending on the extent of the bodily damage caused by “Contergan”. The law further introduced an annual additional payment (jährliche Sonderzahlung) from the capital interests gained by the foundation. The amount of this payment varies between EUR 460 and EUR 3,680 depending on the degree of disability. Furthermore, the increase of the monthly pension was tied to the adaptations of the general retirement pension scheme. By the amendment a further 100 persons who had been previously time-barred to claim benefits became eligible for the benefits. 13. On 30 June 2009 the applicants directly lodged a constitutional complaint in which they attacked the constitutionality of the 1971 Act and all subsequent legislation in that respect. They invoked a violation of their property rights and felt discriminated against in comparison to other vulnerable groups. They further complained about a legislative failure to act insofar as they did not receive benefits to the extent they would receive if the present laws on pharmaceutical liability were applied. 14. On 26 February 2010 the Federal Constitutional Court, in a composition of a panel of three judges, declined to review the constitutional complaint of the applicants. The Constitutional Court held that the complaint was inadmissible for being time-barred insofar as the 1971 Act and the First Law on Amending the Contergan Foundation Law were challenged. Regarding the complaint on the Second Law on Amending the Contergan Foundation Law the Court found it inadmissible for reasons of subsidiarity of the constitutional complaint, as the applicants had not priorly objected against their pension with the competent administrative courts. The Court underlined that the applicants had failed to challenge the regulatory framework. The Court further reasoned that the complaint as a whole was not sufficiently substantiated. Insofar as the applicants complained about a violation of their property rights the Court held that the sum of all benefits the applicants had received since 1971 was significantly higher than the amount of damages the applicants could have reasonably claimed against the manufacturing company of limited liability. The applicants had further failed to clarify why the present statutory provisions on liability for pharmaceutical products which had been enacted well after the “Contergan scandal” had taken place should become applicable in this case. Furthermore, the current provisions on liability for pharmaceutical products provided for compensation only in cases which involved less than 200 severely damaged persons, whereas the “Contergan” case still affected around 3,000 persons. In regard to their complaint about arbitrary discrimination the Court held it insufficient to compare just the amount of the payments and disregard the different legal and factual circumstances. All other groups in question like victims of warfare, war crimes as well as of criminal deeds and of contaminated blood preserves were compensated under significantly different factual and legal circumstances. The benefit payments from the “Contergan” foundation were tax-free and not considered to be income or assets in order to guarantee that the benefits actually improved the financial situation of those affected by “Contergan”. 15. Section 23 § 1 of the Law on Establishment of a Foundation of 17 December 1971 – henceforth 1971 Act – (Gesetz über die Errichtung einer Stiftung „Hilfswerk für behinderte Kinder“) provided that claims against the manufacturing company of limited liability, G. GmbH, or against its associates, managers or clerks of that company be extinct insofar as the claims relate to a damage which falls under the scope of the 1971 Act. 16. Section 17 of the Second Law on Amending the Contergan Foundation Law stipulates that the benefits based on this law are exempt from income tax and are not considered to become part of the assets of the beneficiary. According to section 18 § 2 of the same law the obligation of other state authorities to provide for benefits is not affected. Authorities may not decline benefits provided for by law because the person receives benefits according to this law. 17. Section 93 § 1 of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) stipulates that a constitutional complaint shall be lodged and substantiated within one month after the final decision of the competent court. Section 93 § 3 stipulates that a constitutional complaint on the constitutionality of a statutory law against which there is no other way of recourse must be lodged within one year after the enactment of that law.
| 0
|
train
|
001-104977
|
ENG
|
MNE;SRB
|
CHAMBER
| 2,011
|
CASE OF ŠABANOVIĆ v. MONTENEGRO AND SERBIA
| 3
|
Remainder inadmissible;Violation of Art. 10;Just satisfaction dismissed (out of time)
|
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
|
5. The applicant was born in 1954 and lives in Herceg Novi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 6 February 2003 a Montenegrin daily newspaper published an article about the quality of the water in the Herceg-Novi area, entitled “Taps full of bacteria” (Slavine pune bakterija). The article stated that all of the current water sources contained various bacteria. These assertions were based on a report produced by the Institute for Health (Institut za zdravlje Crne Gore), which had been requested by the Chief State Water Inspector (Glavni republički vodoprivredni inspektor, hereinafter “the Chief Inspector”), apparently with a view to exploring the possibility of connecting additional sources to the water-supply grid. The same article also included a statement by the applicant, at that time the Director of a public corporation called “The Water Supply and Sewage Systems” (JP Vodovod i Kanalizacija, hereinafter “the Water Supply Company”) and a member of the Socialist People’s Party (SNP), that he was not familiar with the analysis at issue, but that the water was regularly tested and always filtered before being pumped into the system. 8. On the same day the applicant held a press conference in response to the above-mentioned article. The applicant stated that, firstly, all tap water was filtered before being pumped into the water-supply system and was thus safe for use by the public. Secondly, the Chief Inspector had been promoting the interests of the two private companies which had already been granted licences to develop additional water sources and, lastly, the Chief Inspector had been directed to do so by the Democratic Party of Socialists (DPS) and the companies in question had themselves obtained their licences unlawfully. The statement was published in several daily newspapers. 9. On 7 April 2003 the Chief Inspector lodged a private criminal action (privatna krivična tužba) against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to his honour and reputation. 10. On 4 September 2003 the Court of First Instance (Osnovni sud) in Podgorica held the main hearing, during which the applicant said that his statement was not defamatory, but that “it was a value judgment, which he could prove”. He stated that he had been informed about the results of the water analysis three days after the press conference, and the analysis clearly stated that the water from the water-supply system was of the necessary quality and was not a danger to health. He explained that there were obviously two reports, one concerning the water sources and one concerning the filtered water. He did not dispute the right of the Chief Inspector to ask for a water analysis, as it was his duty to do so, but the applicant did not think that the analysis of unfiltered water should have been published, but rather the analysis of the filtered water. Finally, he proposed that the court should read the article “Taps full of bacteria” to understand the context in which the impugned statement had been made, and that it should obtain the files concerning other proceedings ongoing at the time between the Water Supply Company and the two private companies in question. 11. At the same hearing the court also heard the Chief Inspector. He stated that he had always worked professionally and that he did not work under anybody’s orders, he himself having filed a criminal complaint against one of the two companies. He stated that he had ordered the analysis at issue after consulting his Minister, who had “supported” him (“koji [me] je podržao u tome”). He emphasised that the title of the newspaper article had had nothing to do with him, as newspapers wrote what they deemed appropriate (“novine pišu [...] po sopstvenom nahođenju”), although they were contacting him to obtain data. However, he was not interested in what the newspapers had written on this particular issue or why they had not published the analysis of the filtered water (“nije me interesovalo zašto nijesu objavljivali o analizi tretirane vode...”), his main concern being to prove that a particular water source was of adequate quality and that it could be used. 12. On the same day the court found the applicant guilty and sentenced him to three months’ imprisonment. This sentence, however, was suspended and was not to be enforced unless the applicant committed another crime within a period of two years. 13. In the operative part of the judgment only the following statement was found to amount to defamation, that is, to be “untrue” and “harmful to the honour and reputation of the private prosecutor”: “The Inspector [...] works in the interest and at the request of [the two companies], as directed by the DPS”. 14. In its reasoning the court stated that the statement made by the applicant was not supported by facts and rejected the applicant’s defence that it was merely a value judgment. In the court’s view the applicant had been aware that he might harm the honour and reputation of the private prosecutor and thus had had a defamatory intention (klevetnička namjera). The court refused to read the newspaper article or to request the files of the proceedings referred to by the applicant as that would only have delayed the proceedings and, in any event, neither was relevant for the proceedings at issue. 15. On an unspecified date thereafter the applicant lodged an appeal. He stated that, firstly, the Chief Inspector had sought the said analysis in order to examine the possibility of connecting water sources administered by the two private companies to the water-supply grid. Secondly, there were two water analyses, before and after it had been filtered, but the Chief Inspector had provided the newspapers only with the analysis of the unfiltered water. Thirdly, the Chief Inspector himself had not responded to the misleading title of the article stating that the taps were full of bacteria, because he was “not interested” in it. Fourthly, the court had refused to read the newspaper article, without which it was impossible to conclude that his intention had been to defame the private prosecutor. Finally, he did not think it was defamatory to say that a “government official worked as directed by the ruling party”, or that his response to such an article could be considered to amount to defamation of the private prosecutor. 16. On 1 November 2005 the judgment of 4 September 2003 was upheld by the High Court (Viši sud) in Podgorica, which fully endorsed the reasons given by the Court of First Instance. No effective appeal lay against this judgment to the Court of Serbia and Montenegro (see paragraphs 17-18 and 29 below). 17. Article 9 § 1 of the Constitutional Charter provided that both member States shall regulate, safeguard and protect human rights in its territory. 18. The relevant part of Article 46 provided that the Court of Serbia and Montenegro shall examine complaints lodged by citizens in cases where an institution of Serbia and Montenegro has infringed their rights and freedoms as guaranteed by the Constitutional Charter, if no other legal redress has been provided. 19. Section 34 § 2 provided for the freedom to publicly express one’s opinion. 20. Section 35 § 2 stipulated that citizens have the right to express and publish their opinions via the mass media. 21. The relevant provisions of this Act read as follows: “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his honour and reputation shall be fined or punished by imprisonment not exceeding six months. Whoever commits one of the acts described in [the above] paragraph ... through the press, via radio or television ... [, in another manner through the mass media,] ... or at a public meeting shall be punished by imprisonment not exceeding one year. ... If the defendant proves his claims to be true or if he proves that he had reasonable grounds to believe in the veracity of the claims which he made or disseminated, he shall not be punished for defamation, but may be punished for the offence of insult ...” “The defendant shall not be punished for insulting another person if he does so in ... a serious critique, in the performance of his official duties, [...] in defence of a right or of a justified interest, or if from the manner of his expression it transpires that there was no intent to disparage.” 22. The relevant provisions of this Act read as follows: “In handing down a suspended sentence, the court shall impose a punishment on a person who has committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a [specified] period of time, which cannot be less than one or more than five years in all (period of suspension).” “In deciding whether or not to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his conduct prior to and following the commission of the criminal act, the degree of his criminal liability, as well as all the other circumstances under which the act was committed.” “The court shall revoke the suspended sentence [and order its execution] if, during the period of suspension, the convicted person commits one or more [additional] criminal acts for which he is sentenced to imprisonment for a term of or exceeding two years. If, during the period of suspension, the convicted person commits one or more [additional] criminal acts and is sentenced to imprisonment for a term not exceeding two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether or not to revoke the suspended sentence ... ”. 23. The Government referred, inter alia, to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted by the UNECE – United Nations Economic Commission for Europe – on 25 June 1998). 24. Section 5 § 1(c) of that convention provides that in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected. 25. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.
| 1
|
train
|
001-60571
|
ENG
|
ITA
|
CHAMBER
| 2,002
|
CASE OF BARATTELLI v. ITALY
| 4
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
|
Christos Rozakis
|
8. On 4 May 1988 the Genoa Public Prosecutor's Office informed the applicant that criminal proceedings concerning his public duties (the applicant was a civil servant in the Ministry of Public Works) had been instituted against him. These proceedings were subsequently transferred to the Milan Public Prosecutor's Office, and on 7 September 1988 the Milan investigating judge informed the applicant that a charge of corruption was pending against him. 9. On 26 May 1989 the applicant was heard by the Milan investigating judge. 10. On 31 May 1991 the applicant and forty-four other persons were committed for trial before the Milan District Court. The first hearing, initially scheduled for 27 January 1993, took place on 12 January 1994. 11. In a judgement of 31 March 1994, the District Court, following the plea bargain procedure (“applicazione della pena su richiesta delle parti”) sentenced the applicant to one year and four months' imprisonment. This decision was filed with the registry only on 19 March 1997. It became final on 6 July 1997. 12. In the meantime, by an order of 31 July 1995, the Ministry of Public Works dismissed the applicant from his post as a consequence of his criminal conviction.
| 1
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.