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train
|
001-93123
|
ENG
|
UKR
|
CHAMBER
| 2,009
|
CASE OF BEVZ v. UKRAINE
| 4
|
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
|
4. The applicant was born in 1950 and lives in Monastyryshche, Cherkassy region, Ukraine. 5. On 31 May 2002, following complaints by several persons about the applicant, the local police launched an investigation into alleged fraud. The relevant decision begins as follows: “From 2000 to 2001 [the applicant], as the head of [a private company, N.], received money from [the listed persons] under the pretence [that she would provide them with] employment abroad, swindling and abusing their confidence, [...]”. 6. Officially the applicant was not charged and participated in the proceedings as a witness. However, according to her, by January 2003 she had participated in a number of confrontations with victims. Furthermore, on 7 June 2002 her house had been searched by the authorities. 7. From 4 July to 26 December 2002 the investigation was stayed eight times due to the applicant’s illness. Apparently no other investigative steps were taken during this period. Subsequently, it was held by the District Court that the reasons relied on by the investigator in his relevant decisions to stay the proceedings during this period could be applied to an accused only. 8. On 9 January 2003 the police instituted two sets of criminal proceedings against the applicant on suspicion that she had committed abuse of authority and forgery. Subsequently other sets of proceedings which had been instituted against the applicant on the related charges were joined to the main proceedings; the latter eventually incorporated nine sets with a total of sixteen counts. 9. The applicant continued to be interrogated as a witness up to 29 January 2003 when she was formally charged and gave a written undertaking not to abscond. 10. By 23 June 2003 the investigation was completed and the case was transferred to the Monastyryshche District Court (“the District Court”). 11. On 7 July 2003 the preliminary court hearing was held. 12. On 23 September 2003 the applicant was arrested. 13. On 25 September 2003 the investigator issued an attachment order over the applicant’s car and other items of property. 14. The next day the District Court ordered the applicant’s detention on remand. Subsequently, on 16 October 2003 the Cherkassy Regional Court of Appeal quashed this order and the applicant was released. 15. On 1 October 2003 the District Court remitted the case for additional investigation. 16. On 10 October 2003 the investigator ordered a forensic technical examination of a document in the case. The expert report was completed by 29 October 2003. 17. From 30 October 2003 to 18 July 2005 the investigation was stayed because of the applicant’s illness. Nevertheless, within this period the domestic authorities carried out additional forensic technical examinations and applied to the Russian authorities for legal assistance. The expert report was completed within a month and the international letter rogatory was executed within two months. 18. By 5 September 2005 the additional investigation was completed and the case was transferred to the District Court. 19. On 6 October 2005 the preliminary court hearing was held. 20. On 23 October 2006 the prosecutor dropped the charges against the applicant on two counts as her guilt had not been proven. 21. On 4 December 2006 the District Court remitted the case for an additional investigation. 22. On 27 February 2007 the Cherkassy Regional Court of Appeal quashed this decision and remitted the case to the first-instance court for fresh consideration. 23. From 23 August to 26 November 2007 the proceedings were stayed because of the applicant’s illness. The relevant court decisions stated that the proceedings had been stayed and eventually resumed upon the applicant’s requests. These decisions were not subject to appeal. 24. On 8 July 2008 the prosecutor dropped the charges against the applicant on four further counts as the investigation had been conducted in breach of the rules of criminal procedure. 25. The proceedings are still pending before the District Court. In addition to thirty-two hearings held between 6 October 2005 and 18 August 2008, five were cancelled due to the prosecutor’s and judge’s illness or prior engagements, seven due to the victims’ and witnesses’ failure to appear before the court, and seven due to the applicant’s counsel’s failure to appear before the court. Once, on 22 November 2005, none of the participants mentioned attended the court hearing. In view of the parties’ (victims and witnesses especially) systematic failure to appear before it, on nine occasions the District Court ordered their attendance at the court hearings to be secured by the police. 26. During the proceedings against her, the applicant complained to different State authorities about the length thereof, but to no avail. 27. According to a letter of 10 November 2008 from the Monastyryshche Central District Hospital, from 2002 to 2008 the applicant underwent in-patient medical treatment, namely, from 6 to 15 April 2002, from 11 to 26 February and from 8 to 13 October 2003, and from 1 to 16 November 2004. 28. According to the applicant, her written undertaking not to abscond and the attachment order of 25 September 2003 are still in place.
| 1
|
train
|
001-110783
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,012
|
KARAKASOGLU v. TURKEY
| 4
|
Inadmissible
|
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
|
1. The applicants, Ms Semra Karakaşoğlu and Ms Sündüs Karakaşoğlu, are Turkish nationals who were born in 1965 and 1947 respectively and live in Istanbul. They were represented before the Court by Mr A. Yazıcıoğlu, a lawyer practising in Istanbul. 3. The first applicant is the daughter of the second applicant. On an unspecified date, the first applicant issued a cheque in the name of the second applicant. Subsequently, in April 2004, alleging that she had lost the cheque, the second applicant applied to the Kadıköy Commercial Court to have it cancelled. The cheque was accordingly cancelled by the Kadıköy Commercial Court. 4. In the meantime, a third person, Ms H.K.Ç. (hereinafter referred to as “the creditor”), who is the niece of the second applicant, presented the cheque in question to the bank for payment; however, she was informed that the cheque had been cancelled. The creditor then applied to the Istanbul Execution Office and alleged that the second applicant had endorsed the cheque in her name to pay a debt to her. The amount of the cheque in dispute was 70,000 Turkish liras (TRY) and the due date was set at 12 August 2004. On 8 October 2004 a payment order was sent to the applicants. On 12 October 2004 the applicants filed an objection with the Execution Office, stating that they did not have a debt to the creditor and alleging that the creditor had stolen the cheque from their house. 5. Thereafter, the creditor initiated proceedings before the Istanbul Commercial Court, requesting the annulment of the objection filed by the applicants. Relying on section 67 of the Execution and Bankruptcy Act (Law no. 2004), she further claimed compensation amounting to 40% of the sum due, as the applicants had denied paying their debt in an unjust manner. 6. On 18 October 2004 the applicants initiated another set of proceedings before the Istanbul Commercial Court, seeking a declaratory judgment to the effect that they did not have any debt to the creditor in respect of the cheque in question. They also requested the creditor to pay them compensation amounting to 50% of the sum in dispute for acting in bad faith. On 29 June 2005 the Istanbul Commercial Court rejected the applicants’ case on account of insufficient evidence. In its decision, the court held that the applicants had failed to provide the basis of an arguable claim in support of their allegations. On 24 April 2006 the Court of Cassation quashed the judgment of the first-instance court, holding that that court should have examined whether the refusal to pay the amount due had caused unjust enrichment to the applicants. The case was accordingly remitted to the Istanbul Commercial Court. 7. On an unspecified date, the Istanbul Commercial Court decided to join the two cases. During the hearings held before the Commercial Court, the applicants were represented by a lawyer and were able to put forward all their arguments. The court also heard witness statements. In her submissions before the court, the creditor maintained that she had lent TRY 70,000 to the second applicant and had in return taken a cheque with a due date set for 12 August 2004. She further claimed that in order to avoid paying the cheque, the second applicant had applied to the court to have it cancelled. On 14 November 2007 the Commercial Court held that as the creditor was in possession of a cheque, the burden of proof lay on the applicants to prove that they did not have a debt to her. Having regard to the case file as a whole, the court decided that the applicants had failed to prove that they did not have any debt to the creditor. It therefore dismissed the case initiated by the applicants and annulled their objection against the payment order. Pursuant to section 67 of Law no. 2004, the court further ordered the applicants to pay compensation, amounting to 40% of the sum due, for unjustly filing an objection against the payment order. On 30 June 2008 the Court of Cassation upheld the judgment of the first-instance court. A request by the applicants for rectification was subsequently rejected and this final decision was served on the applicants on 11 January 2009. 8. Section 67 of the Execution and Bankruptcy Act (Law no. 2004) provides that the court may order the payment of compensation amounting to at least 40% of the sum in dispute, upon a request by the other party, if at the end of execution proceedings it concludes that the debtor has unjustly filed an objection against the payment order, or that the creditor acted in bad faith in initiating the execution proceedings.
| 0
|
train
|
001-102145
|
ENG
|
POL
|
CHAMBER
| 2,010
|
CASE OF PIOTR NOWAK v. POLAND
| 4
|
Violation of Art. 5-3
|
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
|
6. The applicant was born in 1979 and lives in Przemyśl. 7. In 1998 the applicant was charged with assaulting a certain A.B. On 15 April 1999 criminal proceedings against him and a co-accused were instituted. On 9 May 2000 the bill of indictment was filed with the Szczecin District Court. On 27 June 2000 both accused were present. However the hearing was adjourned since the applicant had not been served with the bill of indictment. The trial eventually began on 13 January 2004. The applicant was present at the hearing. 8. The applicant subsequently left Poland. He submitted that before leaving, he informed the court that he could be contacted at a correspondence address in Przemysl. He also called the court a few times, asking about progress on his case. The Government disagreed and maintained that the case filed contained no proof that the applicant had attempted to contact the court. They stated that the applicant had not informed the court about his new correspondence address. 9. On 12 February 2004 the applicant failed to appear at the hearing. The Szczecin District Court ordered that the applicant be remanded in custody for a period of three months. The decision reads as follows: “the court orders that Piotr Nowak be remanded in custody for a period of three months, since he failed to comply with a summons”. 10. In March 2004 the applicant started working in L'viv, Ukraine. 11. On 20 January 2005, at around 11 a.m., the applicant went to a police station in L'viv to report that his friend's car had been stolen. The police checked his passport, verified his personal details and locked him up in a cell. When he asked for the reasons for his arrest he was told that he was an “international thief”. He was subsequently questioned by the officers. He submits that during the questioning the officers severely beat him and extinguished cigarettes and matches on his wrist and forearm. 12. On 24 January 2005 a decision of the police concerning his voluntary expulsion was served on him. 13. The applicant was kept at the police station until the afternoon of 24 January 2005, when he was transported to the Polish border control post in Medyka, where he arrived at around 7 p.m. At around 8 p.m. he was examined by a doctor who noted that the applicant had cigarette burns on his left forearm and provided him with medical aid. 14. The applicant was arrested on the basis of the detention order of 12 February 2004 and a wanted notice issued by the Szczecin police station on 2 August 2004. He was then transferred to the Przemysl Detention Centre. 15. On 25 January 2005 the applicant asked the court to release him from detention. He submitted that he would stay in Poland until the end of the trial. The letter reached the trial court on 1 February 2005. 16. On 31 January 2005 the applicant was examined by a prison doctor. The doctor stated that the applicant had two 0.5 cm cigarette burns on his left hand, plus two similar marks on his left wrist and one on his forearm. He also had abrasions on his lower and upper lip and a broken front tooth. 17. According to the applicant, he was served with the detention order of 12 February 2004 on 2 February 2005. The Government disagreed maintaining that the applicant received the letter from the court on 1 February 2005. 18. On 4 February 2005 the Szczecin District Court dismissed the applicant's motion of 25 January 2005. The court held that the applicant had left the country and failed to appear at hearings. For these reasons he had obstructed the proceedings. 19. On 8 February 2005 the applicant filed another application for release. 20. On 11 February 2005 the Szczecin District Court ordered the applicant's release on bail, which it set at 2,000 Polish zlotys (PLN) (approximately EUR 500). It also prohibited him from leaving the country. The decision was served on a later, unknown date. 21. On 14 February 2005 the Szczecin District Court received the applicant's appeal against his arrest on 20 January 2005 by the Ukrainian Police. On 23 February 2005 the District Court dismissed the appeal against the applicant's arrest by the Polish police on 24 January 2005. The court considered that the arrest was justified, prompt and legal. 22. On 28 February 2005 the applicant paid the bail and on the same day he was released from detention. 23. On 12 December 2005 the Szczecin District Court convicted the applicant as charged and fined him PLN 2,000. 24. Both the applicant and the prosecutor appealed. On 28 April 2006 the Szczecin Regional Court quashed the first-instance judgment and remitted the case. 25. On 11 March 2008 the Sczczecin District Court gave judgment and acquitted the applicant. The judgment is final. 26. On 29 May 2008, on the applicant's complaint, the Szczecin Regional Court acknowledged the excessive length of criminal proceedings before the Szczecin District Court and granted the applicant 3,000 PLN by way of just satisfaction. 27. On 29 October 2008 the Szczecin Regional Court dismissed the applicant's request for compensation for unjustified pre-trial detention under Article 552 § 4 of the Code of Criminal Procedure. The court noted that the applicant was present at the hearing held on 13 January 2004 during which he was informed about the date of the subsequent hearing i.e. 12 February 2004. Since he failed to appear at that hearing, the trial court ordered his detention on remand. Subsequently, the trial court also issued a wanted notice for him. He was detained on 24 January 2005 and released on 28 February 2005. The court held that while indeed the applicant had been detained for 36 days and finally acquitted, the detention could not be considered “obviously unjustified”. It referred to the fact that the applicant was hiding from justice and a wanted notice had been issued. The court considered that the applicant' 28. The applicant failed to appeal against this judgment. 29. Article 244 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights. 30. Article 246 provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution. Such an appeal must be promptly transmitted to the competent District Court which is required to examine it speedily. In cases where the District Court has established that the arrest was unlawful or unwarranted, it must order the immediate release of the person concerned. 31. The Code of Criminal Procedure defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), a guarantee by a responsible person (poręczenie osoby godnej zaufania), a guarantee by a social entity (poręczenie społeczne), a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and a ban on leaving the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for the imposition of preventive measures: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, to prevent an accused's committing another serious offence; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence.” (...) 3. Before deciding on the application of the preventive measures, the court or the prosecutor shall hear the person charged with offence, unless it is impossible due to the accused being in hiding or residing abroad...” Article 258 lists the grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or codefendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed.” The Code sets out the extent of the courts' discretion to continue a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259 § 1 reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular, if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” Article 259 § 3 provides: “Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.” Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused attempts to evade justice or persistently fails to comply with a summons or when his identity cannot be established. 32. Under Article 75 of the CCP an accused who is not deprived of his liberty is required to appear whenever he receives a summons in the course of criminal proceedings. He is also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting longer than 7 days. The accused must to be informed of these obligations when first questioned. 33. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for wrongful conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him. Article 552 provides, in so far as relevant: “1. An accused who, as a result of the reopening of the criminal proceedings against him or of a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him. ... 4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand.” 34. Pursuant to Article 555, an application for compensation for manifestly wrongful detention on remand has to be lodged within one year from the date on which the decision terminating the criminal proceedings in question became final. 35. Proceedings relating to an application under Article 552 are subsequent to and independent of the original criminal proceedings in which the detention was ordered. The claimant may retrospectively seek a ruling as to whether his detention was justified. He cannot, however, test the lawfulness of his continuing detention on remand and obtain release. 36. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (prawa osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24, paragraph 1, of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows: “...[T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.” Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
| 1
|
train
|
001-58915
|
ENG
|
SMR
|
GRANDCHAMBER
| 1,999
|
CASE OF BUSCARINI AND OTHERS v. SAN MARINO
| 1
|
Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
|
Luzius Wildhaber
|
7. The applicants were elected to the General Grand Council (the parliament of the Republic of San Marino) in elections held on 30 May 1993. 8. Shortly afterwards, they requested permission from the Captains-Regent, who act as the heads of government in San Marino, to take the oath required by section 55 of the Elections Act (Law no. 36 of 1958) without making reference to any religious text. The Act in question referred to a decree of 27 June 1909, which laid down the wording of the oath to be taken by members of the Republic’s parliament as follows: “I, …, swear on the Holy Gospels ever to be faithful to and obey the Constitution of the Republic, to uphold and defend freedom with all my might, ever to observe the Laws and Decrees, whether ancient, modern or yet to be enacted or issued and to nominate and vote for as candidates to the Judiciary and other Public Office only those whom I consider apt, loyal and fit to serve the Republic, without allowing myself to be swayed by any feelings of hatred or love or by any other consideration.” 9. In support of their request the applicants referred to Article 4 of the Declaration of Rights of 1974, which guarantees the right to freedom of religion, and Article 9 of the Convention. 10. At the General Grand Council session of 18 June 1993 the applicants took the oath in writing, in the form of words laid down in the decree of 27 June 1909 save for the reference to the Gospels, which they omitted. At the same time, the first applicant drew attention to the obligations undertaken by the Republic of San Marino when it became a party to the European Convention on Human Rights. 11. On 12 July 1993 the Secretariat of the General Grand Council gave an opinion, at the request of the Captains-Regent, on the form of the oath sworn by the applicants, to the effect that it was invalid, and referred the matter to the Council. 12. At its session of 26 July 1993 the General Grand Council adopted a resolution proposed by the Captains-Regent ordering the applicants to retake the oath, this time on the Gospels, on pain of forfeiting their parliamentary seats. 13. The applicants complied with the Council’s order and took the oath on the Gospels, albeit complaining that their right to freedom of religion and conscience had been infringed. 14. Subsequently – before ever the applicants applied to the Commission – Law no. 115 of 29 October 1993 (“Law no. 115/1993”) introduced a choice for newly elected members of the General Grand Council between the traditional oath and one in which the reference to the Gospels was replaced by the words “on my honour”. The traditional wording is still mandatory for other offices, such as that of Captain-Regent or of a member of the government.
| 1
|
train
|
001-82415
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,007
|
RAPLEY AND OTHERS v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Josep Casadevall;Nicolas Bratza
|
The applicants, Mr Anthony Richard Rapley, Mr John Stephen Lyon and Mr Bruce Bradley are British nationals who were born in 1958, 1963, and 1954 and live respectively in Surrey, North Somerset and Buckinghamshire. They were represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office. The applicant’s wife died on 31 May 2000, leaving two children born in 1987 and 1990. His claim for widows’ benefits was made on 6 September 2000 and was rejected on 28 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant lodged an appeal on 6 October 2000, which was decided and rejected on 21 December 2000. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant’s wife died on 20 February 1998, leaving two children born in 1994 and 1997. His claim for widows’ benefits was made on 10 December 2000 and was rejected on 3 January 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant’s wife died on 3 September 1995, leaving one child born in 1992. His claim for widows’ benefits was made on 5 April 2001 and was rejected on 26 April 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.
| 0
|
train
|
001-109052
|
ENG
|
ROU
|
COMMITTEE
| 2,012
|
CASE OF OPRIS AND OTHERS v. ROMANIA
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
|
Egbert Myjer;Luis López Guerra;Mihai Poalelungi
|
4. The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto.
| 1
|
train
|
001-104975
|
ENG
|
POL
|
CHAMBER
| 2,011
|
CASE OF BOGUSŁAW KRAWCZAK v. POLAND
| 3
|
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
5. The applicant was born in 1952. He is currently detained in Czerwony Bór Prison. 6. On 12 January 2005 the applicant was arrested in Poland and charged with trafficking large amounts of drugs from Venezuela. 7. On 14 January 2005 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody. The decision was upheld on 18 April 2005 by the Gdańsk Regional Court (Sąd Okręgowy). 8. In its decision to detain the applicant, the District Court relied on a reasonable suspicion that the applicant had committed the aforementioned offence. It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on the applicant and to the risk that he would attempt to obstruct the proceedings. 9. The applicant’s pre-trial detention was subsequently extended by decisions of the Gdańsk Regional Court given on 22 March 2005 (upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 27 April 2005), on 23 June 2005, on 15 September 2005 (upheld by the Gdańsk Court of Appeal on 11 October 2005), on 13 January 2006 and on 18 April 2006 (upheld by the Gdańsk Court of Appeal on 26 April 2006). 10. In its decisions extending the applicant’s detention, the Regional Court observed that it had been necessary to extend the pre-trial proceedings in order to obtain translations of certain relevant case documents from Spanish into Polish, to hear new witnesses and to supplement the original charges. It took into account the fact that the applicant had a handicapped mother, but concluded that she had been receiving adequate care and, therefore, that there were no special reasons, family-related or other, militating against the applicant’s detention. 11. On 17 June 2005 the bill of indictment was lodged with the Gdańsk Regional Court. 12. On 6 October 2005 the Gdańsk Regional Court dismissed the applicant’s request for release, finding that the initial grounds for his detention continued to apply. 13. On 28 December 2006 the Gdańsk Court of Appeal extended the applicant’s detention, restating the grounds initially invoked for the detention order. It emphasised that the offence with which the applicant had been charged had been committed in an organised criminal group. Consequently, the court took the view that detention on remand constituted the only measure capable of securing the proper conduct of the proceedings. 14. The applicant’s appeal against the decision of the Gdańsk Court of Appeal was dismissed by the same court on 16 January 2007. 15. On 25 April 2007, 11 December 2007 and on further unspecified dates the Gdańsk Court of Appeal again extended the applicant’s detention. In its decision of 11 December 2007 the court held that another extension of the applicant’s detention was necessary in order to allow the trial court to examine additional evidence and hear more witnesses. The court moreover observed that one of the co-accused had also been charged in another set of proceedings and remained at the disposal of the Kraków Regional Court, which made it necessary to have him escorted from there to each of the hearings before the Gdańsk Regional Court. The applicant’s appeal against this decision was dismissed on 28 December 2007. 16. On 30 December 2008 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 10 years’ imprisonment. 17. On 2 March 2010 the Gdańsk Court of Appeal upheld the lower court’s judgment. 18. The applicant lodged a cassation appeal and the proceedings before the Supreme Court are currently pending. 19. On 14 January 2005 the applicant was committed to Sztum Remand Centre. 20. On 30 September 2005 he was transferred to Gdańsk Remand Centre. 21. From 12 October 2006 to 15 November 2006 the applicant was held in Kraków Remand Centre. 22. On 16 November 2006 he was transferred back to Gdańsk Remand Centre. He remained there until 6 March 2007. 23. On 7 March 2007 the applicant was once more transferred to Kraków Remand Centre and detained there until 21 March 2007. 24. From 22 March 2007 onwards the applicant was detained in Gdańsk Remand Centre. 25. Following his conviction, on 17 January 2009 he was transferred to Iława Remand Centre to serve his term of imprisonment. He remained there until 17 October 2009, with the exception of the period from 30 June 2009 to 3 September 2009 when he was detained in Racibórz Remand Centre. 26. On 18 October 2010 the applicant was transferred to Czerwony Bór Prison where he is currently detained. 27. The parties gave partly differing accounts of the conditions of the applicant’s detention in the above-mentioned establishments. 28. Upon his arrest on 12 January 2005 the applicant was committed to Sztum Remand Centre where he was initially held in a cell of an unspecified size. 29. On 20 June 2006, in Gdańsk Remand Centre, he was placed with five other detainees in a cell of 16 m². The free area in the cell, furniture and other equipment excluded, amounted to approximately 1 m² per person. 30. Subsequently, on an unspecified date the applicant was transferred to a cell which measured 20 m² and was shared by six detainees. The cell in question was furnished with three bunk beds, two tables, six stools and a number of cupboards. A toilet cubicle was also inside the cell. The free area in the cell was approximately 1.5 m² per detainee. 31. From 17 October to 15 November 2006 the applicant was held in Kraków Remand Centre. Despite being a non-smoker, he was detained in a cell designated for smokers. 32. In a letter of 9 November 2009 the applicant informed the Court that he had been continuously held in a cell where the statutory requirement of 3 m² of living space per prisoner had not been respected. The toilet was not properly separated from the rest of the cell and the conditions were unhygienic. 33. In a letter of 15 October 2010 the applicant informed the Court that from 9 November 2009 to 26 November 2009 the authorities of Iława Prison had placed him together with one other detainee in a cell where the living space per detainee amounted to 2.48 m². In the same letter he further stated that on 26 November 2009 he was moved to cell no. 18 in ward B where the requirement of 3 m² of living space per prisoner had been respected and the conditions of his detention were more or less satisfactory. 34. The Government supplied the following details concerning the conditions of the applicant’s detention in each establishment. 35. As regards Gdańsk Remand Centre, the Government acknowledged that the applicant had been temporarily placed in cells where the living space per prisoner had amounted to less than 3 m². The cell space in different cells occupied by the applicant ranged from 2.26 m2 to 4.06 m2 per prisoner. The period during which the applicant had been detained in cells where the living space was less than 3 m² per prisoner amounted to a total of 235 days. 36. The Government explained that throughout his detention the applicant had been entitled to a one-hour daily walk in the remand centre’s courtyard and to take part in various sports activities. The sanitary conditions of Gdańsk Remand Centre were adequate, the cells were properly lit and equipped with all necessary furniture. 37. With regard to Kraków Remand Centre, the Government also conceded that the applicant had been at times held in cells where the living space per prisoner amounted to less than 3 m². He was initially placed in a cell with non-smokers but at his own request he was later moved to a different cell. In this remand centre also the applicant was entitled to a one-hour daily walk in the remand centre’s courtyard. The overall sanitary conditions of the remand centre were satisfactory and the applicant had been provided with the necessary products for his daily hygiene. 38. In a letter of 26 November 2009 the Government submitted that the applicant was being detained in Iława Remand Centre, in a cell where the statutory minimum standard of 3 m² per person was respected. 39. The applicant lodged a complaint with the Ombudsman, complaining about the conditions of his detention in Kraków Remand Centre. He did not lodge a similar complaint in respect of Gdańsk Remand Centre because, as he explained, such a complaint would have had no prospects of success and moreover he had feared persecution by the prison authorities of Gdańsk Remand Centre. 40. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights on account of the conditions of his detention. 41. The applicant submitted that during his stay in Sztum Remand Centre he had been entitled to one family visit per month. During the first visit he was allowed to see his common-law wife in person and in the presence of a police officer. During all subsequent visits he was separated from his visitors by a perspex partition and could only communicate with them via internal phone. He was only allowed to receive one visitor at a time. 42. In March 2005 the applicant’s wife was refused the right to see him. According to the applicant’s submissions, the authorities had explained their refusal by the fact that a personal search performed on the applicant’s wife at the remand centre’s entrance had allegedly revealed a prohibited “kite” message (gryps) and some unauthorised medication. The applicant maintained that the authorities had unfairly mistaken his common-law wife’s personal memo note for a prohibited message. He also explained that the medication she had been carrying had been her own, ordinary medication for blood circulation problems. He moreover pointed out that during the visit scheduled for that particular day he would in any event have been separated from his wife by a perspex partition, a circumstance of which both the authorities and his wife had been aware. 43. In Gdańsk Remand Centre the applicant was entitled to receive visitors once a month. He was usually separated from his visitors by a perspex partition and could communicate with them via internal phone. 44. The applicant submitted that on numerous occasions his commonlaw wife and other members of his family had filed repeated requests to be allowed to see him physically in person but that all these requests had been refused. He maintains that he was allowed to meet his family in a manner allowing for direct physical contact only on six occasions. 45. From the copies of documents provided by the applicant it can be seen that the requests filed by various members of his family on 12 July 2005, 5 August 2005, 29 May 2006, 9 July 2006 and on 5 September 2006 were all refused by the Gdańsk Regional Court, usually by handwritten notes made on their requests – “permission refused” (“nie wyrażam zgody”). 46. As a result of a request filed on 30 June 2006, on 3 July 2007 the court decided to “only exceptionally” allow the applicant’s common-law wife to see him without their being physically separated (“sąd wyjątkowo wyraża zgodę na widzenie umożliwiające kontakt bezpośredni”). 47. Also, the applicant’s own request to be allowed to have direct physical contact with his visitors, filed on 10 July 2006, was refused by the court on 18 July 2006. 48. According to a certificate issued on 25 July 2007 by the authorities of Gdańsk Remand Centre, provided by the applicant, up until 23 July 2007 he had been allowed to see: - his common-law wife 16 times: during 9 visits they had been separated by a perspex partition and on 7 other occasions they had been allowed to have direct physical contact; - his son P. 9 times: on 7 occasions with the perspex partition and 2 occasions with direct physical contact; - his daughter E. once, being separated from her by the perspex partition. 49. The Government pointed out that during his stay in Gdańsk Remand Centre the applicant had been allowed to see his family 46 times, on 20 occasions in a manner allowing for direct physical contact. Nearly all requests filed by the applicant’s family members had been allowed. The visits took place on: - 11 and 18 October 2005; - 8, 10, 23, 25 November 2005; - 1, 8, 13, 20 December 2005; - 12 and 20 January 2006; - 7 and 17 February 2006; - 1, 10, 24 March 2006; - 10, 12, 14 and 21 April 2006; - 12 and 17 May 2006; - 6, 21, 30 June 2006; - 11 and 21 July 2006; - 31 August 2006; - 7 and 21 September 2006; - 23 November 2006; - 16 December 2006; - 22 January 2007; - 22 February 2007; - 27 March 2007; - 8 and 30 May 2007; - 8 June 2007; - 24 July 2007; - 21 August 2007; - 21 September 2007; - 12 October 2007; - 29 November 2007; - 14 and 22 December 2007. 50. During his stay in Kraków Remand Centre from 7 to 21 March 2007, the applicant was not allowed to make any telephone calls and did not receive any visits. 51. On 19 May 2010 the Elbląg Regional Court refused to grant the applicant’s request for release on probation (warunkowe przedterminowe zwolnienie). The court held that the applicant could not be given a positive socio-criminological forecast and that his resocialisation process had not been completed yet. It noted that the applicant’s behaviour in detention had been proper, but also observed that he had been a declared member of the prison subculture in violation of prison regulations, that he had not shown a critical attitude towards his crime and, lastly, that the end of the applicant’s sentence was still remote. It recalled that, according to the prevalent jurisprudence, release on probation was a kind of “reward” for prisoners who, by their behaviour, had demonstrated that they had made substantial progress in their resocialisation. 52. On 22 June 2010 the Gdańsk Court of Appeal dismissed the applicant’s appeal. It restated the reasons invoked for the decision of the lower court. In addition, it considered that the fact that the applicant had never throughout his detention been given a disciplinary penalty and that he had received a dozen or so rewards for his behaviour (nagroda) could not suffice to conclude that his socio-criminological forecast should be regarded as positive. The court further invoked the applicant’s membership of the prison subculture, the serious nature of his criminal conviction and his lack of remorse in respect of the committed crime. 53. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the decision given by the Court in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54). 54. The relevant domestic law and practice concerning the imposition of pretrial detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). 55. The relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009). 56. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, a detainee is allowed to receive visitors, provided that he has obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remains, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun) or from the appellate court (in appeal proceedings). A detainee is entitled to a single, onehour long visit per month. 57. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”. 58. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. 59. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transfer of any forbidden objects. 60. A closed visit takes place in a special room. A detainee is separated from his visitor by a perspex partition and they communicate through an internal phone. 61. The relevant extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006, read as follows: “Part II Conditions of imprisonment Contact with the outside world 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted. 24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. 24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
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train
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001-93250
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ENG
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EST
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CHAMBER
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CASE OF LIIVIK v. ESTONIA
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Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
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6. The applicant was born in 1951 and lives in Saku, Harju County. He served as the acting Director General of the Estonian Privatisation Agency (erastamisagentuur) (“the Agency”) at the material time. 7. On 25 February 1999 the Estonian Parliament (Riigikogu) decided that AS Eesti Raudtee (“ER”), a public limited company in possession of the Estonian railways, was to be privatised in accordance with the Privatisation Act (Erastamisseadus). The privatisation process was accompanied by considerable political debate as well as by pressure from various stakeholders on the persons conducting the privatisation. The company was in a difficult economic situation and in need of investment. Under the Privatisation Act, it was the responsibility of the Agency to carry out the privatisation of state assets. 8. On 11 January 2000 the Government approved the plan for the privatisation of certain state assets in 2000. According to the plan, the Agency had to dispose of the majority shareholding in ER (51 to 66% of the shares) to a strategic investor. In order to increase its capacity and competitiveness, investments in the railway infrastructure were established as supplementary conditions. The public call for tenders was to be announced by April 2000 so that the privatisation could be carried out in the course of the year 2000. 9. On 17 April 2000 the Agency announced an international two-stage tender procedure with preliminary negotiations for the privatisation of 66% of shares in ER. 10. On 11 July 2000 the Government designated T. J., the Minister of Transport and Communications, as the person responsible for privatisation negotiations. T. J. was also a member of the Board of the Privatisation Agency (“the Board”). 11. By resolution of the Board dated 16 August 2000, four bidders were invited to participate in the second stage of the tender procedure. The Board also established supplementary conditions with regard to the second stage of the procedure, including the submission of a business plan. 12. By 20 November 2000 – the date on which the submission of final bids was due – three bidders had submitted their bids. According to the decision of the Board of 13 December 2000, the bid of Rail Estonia ApS was deemed the best one. The bid submitted by Baltic Rail Services OÜ (“BRS”) was deemed the second-best bid. 13. Since Rail Estonia ApS refused to enter into the privatisation agreement and to pay the purchase price for the shares of ER in accordance with its bid by the due date prescribed by the Agency (end of February 2001), BRS was invited to sign the privatisation agreement. 14. On 30 April 2001 the agreement for privatisation of 66% of the shares in ER was signed between the Republic of Estonia, BRS and ER. According to the agreement, BRS assumed the obligation to pay 1,000,000,000 Estonian kroons (EEK) (approximately corresponding to 64,000,000 euros (EUR)) for the shares as well as to invest at least EEK 2,566,145,000 (EUR 164,000,000) in the next five years. Simultaneously with the privatisation agreement a shareholders’ agreement of ER was signed between the Republic of Estonia and BRS. The applicant, as the acting Director General of the Agency, signed the privatisation agreement and T. J., as the Minister of Transport and Communications, signed the shareholders’ agreement on behalf of the State. 15. The agreed transaction of the privatisation of 66% of shares in ER was completed by 31 August 2001. By the same date BRS had furnished the required warranties for performance of the privatisation agreement and transferred to the State the agreed purchase price for the shares. 16. At the time when the application to the Court was lodged (10 March 2005), ER was, in the applicant’s submission, a successful company in which the State earned ten times more for its 34% shareholding than it had previously done with a 100% stake. Moreover, before the conclusion of the agreement for the privatisation of ER, the company had been in a pre-insolvency situation where short-term obligations (such as the payment of salaries) had been financed by means of bank loans. Failure to conclude the privatisation agreement could have had extremely serious consequences for the Estonian economy as a whole (in particular, the insolvency of the railway company and the loss of large transit flows and of expected tax revenues). 17. The privatisation agreement contained a section concerning representations and warranties, including “Representations and Warranties of the State”. The criminal charges brought against the applicant related to the confirmations given by the State in respect of possible claims of AS Valga Külmvagunite Depoo, an insolvent public limited company, and in connection with the purchase of locomotives of Russian origin. 18. According to the applicant, the management of ER had failed to furnish sufficient information to the representatives of BRS concerning possible claims by the insolvent AS Valga Külmvagunite Depoo against ER. 19. Since BRS had bid a certain amount of money for 66% of shares in ER and the amount of the bid could not be changed subsequently in connection with any possible obligations arising later, possible claims by AS Valga Külmvagunite Depoo constituted a material risk for BRS. Considering the possible claims which had not been disclosed on the balance sheet of ER, the amount and validity of which were unclear, the parties to the privatisation agreement agreed on certain guarantees, formulated in section 9.1.1 (p) of the agreement. Under this provision, the State undertook to provide BRS with the opportunity to examine all circumstances concerning the claims and court cases in relation to AS Valga Külmvagunite Depoo and its insolvency proceedings. If BRS were to discover risks substantially and actually affecting the value of ER that it could not have evaluated at the time of the signing of the privatisation agreement, the parties undertook to solve such questions at the latest by 29 June 2001 in good faith and by mutual agreement. For example, it was possible that the State would give BRS by 29 June 2001 an additional warranty whereby the State would take partial and limited liability for the claims of AS Valga Külmvagunite Depoo against ER under certain conditions. The State and BRS were also entitled at their sole discretion to withdraw from the privatisation agreement and to terminate it should they not reach mutual agreement concerning the claims of AS Valga Külmvagunite Depoo. 20. According to a subsequent agreement the term of 29 June 2001 was extended to 21 August 2001. By that date, BRS was aware that the possible claims of AS Valga Külmvagunite Depoo constituted risks that substantially affected the value of ER. In view of that circumstance, on 21 August 2001 the State, represented by the Director General of the Agency pursuant to Article 29 of the Statutes of the Privatisation Agency, and BRS concluded a protocol concerning the possible claims under which the State furnished to BRS an additional warranty. Subject to certain conditions, the State undertook to indemnify ER 20% of any sums exceeding EEK 1,000,000 (EUR 64,000) that it might actually be required to pay to AS Valga Külmvagunite Depoo, up to the amount of EEK 22,407,385 (EUR 1,432,000). Furthermore, the State undertook to indemnify 100% of any sums exceeding EEK 22,407,385, up to the amount of EEK 114,261,140 (EUR 7,301,000). 21. The business plan and technical and financial plan of BRS, as accepted by the resolution of the Board on 13 December 2000, prescribed the transition to the use of locomotives of American origin and absolute termination of the use of locomotives of Soviet/Russian origin that ER had been using until then. However, the management of ER – not subordinate to the Agency – entered into an agreement with AS Hansa Liising and Intergate Company Ltd on 27 December 2000 for the acquisition of five additional locomotives of Russian origin for ER for an – allegedly unreasonably high – price of 7,000,000 United States dollars (USD) (then corresponding to approximately EUR 7,500,000). The acquisition of the new locomotives was at variance with the privatisation bid of BRS as accepted by the State and it gave rise to the danger that BRS would not be able to abide by its privatisation bid. 22. Due to the above circumstances, the parties – the State, represented by the acting Director General of the Agency, and BRS – agreed on section 9.1.1 (s) in the privatisation agreement, containing a warranty given by the State to BRS. The State undertook to reimburse BRS for any direct damage that it might bear should ER actually acquire the five locomotives before BRS obtained control over the company. Several additional conditions were agreed upon, including an obligation on BRS to minimise the possible damage. For the fulfilment of potential obligations arising from the warranty, the Agency was obliged to maintain in the State’s bank account the sum of EEK 50,000,000 (EUR 3,195,000) until the grounds for claims regarding the warranty had ceased to exist, but in any case not for longer than seven years. The maximum potential State liability under this warranty was EEK 100,000,000 (EUR 6,390,000). The parties considered the possible direct damage covered by this warranty to be debts relating to the privatised property outside the scope of privatisation, as described in section 10(5) of the Privatisation Act. The State was entitled at its sole discretion and upon notice to BRS but at the latest by 29 June 2001 to withdraw this warranty, to withdraw from the privatisation agreement and to terminate it. 23. The applicant was appointed acting Director General of the Agency by its Board on 27 October 1999. According to the Privatisation Act, the Director General was not a member of the Board. As the acting Director General, the applicant was responsible for execution of the principal decisions of the Government and the Board. He was entitled and obliged to manage the everyday activities of the Agency, including entering into privatisation agreements. 24. In July 2001 the State Audit Office (Riigikontroll) gave its opinion concerning the lawfulness of the privatisation of the shares in ER to the Public Prosecutor’s Office for information and for a decision on whether criminal proceedings needed to be initiated. It was found that the applicant and the Minister of Transport and Communications had acted beyond their authority in assuming financial obligations for the State. The State Audit Office was of the view that they had done so without any legal grounds. 25. On 26 July 2001 the Public Prosecutor’s Office (prokuratuur) informed the Auditor General (riigikontrolör) that criminal proceedings had not been initiated. According to the Public Prosecutor’s Office, the agreements had not yet materialised; moreover, they had been concluded in accordance with the decisions of Parliament and the Government and there existed legal grounds for covering debts and obligations relating to privatised assets from the privatisation proceeds. There had been no misuse of official position or significant damage (either material or moral) to national interests within the meaning of Article 161 of the Criminal Code (Kriminaalkoodeks). 26. In a press release from the Public Prosecutor’s Office, dated 14 August 2001, the Prosecutor General (peaprokurör) confirmed that it had not been unlawful to take certain conditional risks in the agreements concerned. According to the applicable legislation, payments could be made from privatisation proceeds without assuming any liability for the State budget. He stated that the refusal to initiate criminal proceedings against the applicant and T. J. had been well-founded and lawful. 27. By a letter of 31 August 2001 to the Prosecutor General the Auditor General again requested that initiation of criminal proceedings in respect of the applicant be considered. He referred to the conclusion on 21 August 2001 of a protocol concerning possible claims by AS Valga Külmvagunite Depoo as a new circumstance. 28. On 10 September 2001 the head of the Prosecution Department of the Public Prosecutor’s Office initiated criminal proceedings against the applicant. 29. The applicant was charged with misuse of his official position in giving the representations and warranties in the privatisation agreement described above. According to the charges, he had created a situation whereby the preservation of the State’s assets might have been jeopardised. This could be considered to have caused significant damage to national interests. Moreover, by repeatedly assuming unlawful obligations for the State, the applicant had cast doubt on the legitimacy and reliability of the activity of the Agency as a state institution, thus materially impairing the authority of the State in society, and had also damaged the reputation of the Republic of Estonia as a contractual partner at international level; those acts, in aggregate, had to be considered to have caused significant damage to the State. Accordingly, he had committed an offence under Article 161 of the Criminal Code. 30. On 17 April 2002 Parliament set up an investigation committee in order to investigate the circumstances relating to the privatisation of the railways. It was headed by a member of the Board of the Agency who had opposed the privatisation of ER. The final report of the committee was approved in February 2003. The results of the committee’s investigation, condemning the privatisation, were published by the media during the criminal investigation. 31. On 24 March 2003 the Public Prosecutor’s Office approved the bill of indictment. The applicant was then committed for trial before the Tallinn City Court (linnakohus). 32. The applicant was also charged with – and subsequently convicted of – misuse of his official position in connection with the privatisation of RAS Tallinna Farmaatsiatehas (the state-owned public limited company Tallinn Pharmaceutical Factory). However, he did not make any complaints before the Court in this respect. 33. On 2 June and 9 September 2003 the applicant requested the Tallinn City Court to return the case for additional preliminary investigation because of the one-sidedness of the investigation. The court dismissed the requests, finding that the defence had in substance challenged the evidence and submitted additional evidence which the court would assess while deciding on the merits of the case. It considered that there were no obstacles to proceeding with the case before the court, the applicant having a right to make further requests in the course of the proceedings. 34. At the hearing on 11 September 2003, after the court had had the bill of indictment read out, the applicant confirmed that he understood the charges brought against him but did not plead guilty. At the hearing V. S. (former Director General of the Agency) gave statements as a witness in respect of the charge concerning the privatisation of RAS Tallinna Farmaatsiatehas. 35. On 25 September 2003 the applicant’s lawyer requested that T. J., Minister of Transport and Communication and member of the Board, be questioned as a witness. T. J. had been the person in charge of the negotiations for the privatisation of ER and was aware of the facts essential to the criminal case. 36. On 6 October and 25 November 2003 the applicant’s lawyer submitted additional requests for admission of evidence. The latter request included a post scriptum remark asking the court to ensure that the summonses were indeed delivered to the witnesses. According to the defence counsel, several important witnesses, for example, M. P., V. S., G. S. and others, had not received the summonses. 37. At the hearing on 16 December 2003 the court granted the defence counsel’s requests to admit supplementary evidence and to summon witness T. J. Witnesses K. (an official of the Agency) and V. S. were examined at the hearing. Subsequently, the court adjourned the hearing in order to summon witness T. J. and other witnesses on whom it had not been possible to serve summonses. 38. At the hearing on 22 December 2003 G. S. (deputy chairperson of the management board of BRS at the material time) was heard as a witness. The defence counsel withdrew its request to examine T. J. The prosecutor asked for disclosure of the statements of all the witnesses who had submitted in writing that they would maintain their statements given earlier, during the preliminary investigation. It does not appear from the record of the court hearing that the defence disagreed with the disclosure of the written materials from the case file. As the parties did not object to closing the examination of evidence, they proceeded to legal argument. 39. On 30 January 2004 the court heard the closing statement by the applicant. The parties made no requests. On the same day, the court delivered the operative part of the judgment, by which the applicant was convicted as charged and sentenced to two years’ imprisonment; eighteen months of the sentence were suspended. 40. The City Court in its judgment referred to the statements from witnesses V. S., K. (erroneously described as a member of the Board) and G. S., who had been heard at the hearings. It also relied on statements from witnesses P. J. (chairperson of the management board of ER at the material time), G. (a member of Parliament whose company had at the material time given legal advice to ER) and H. P. (bankruptcy trustee of AS Valga Külmvagunite Depoo), given during the preliminary investigation, and on several items of documentary evidence. The court found that the obligations undertaken by the applicant on the State’s behalf to reimburse BRS the possible costs relating to the Russian locomotives and the claim of AS Valga Külmvagunite Depoo had no basis in law. These obligations had not been excluded from the privatisation and they had been known to the parties before the privatisation agreement had been concluded. The court noted that although on 13 December 2000 the Board had accepted the business plan of BRS, it had not made a decision to give warranties on behalf of the State. 41. The City Court found, on the basis of the minutes of the Board’s meetings, that the Board had become aware of the obligations assumed by the applicant in the privatisation agreement only retrospectively and through the media. Moreover, the court noted that even if the Board had been aware of the applicant’s acts, it was the applicant and not the Board who had committed the offence. The court observed that a bid could not be conditional. If BRS had discovered, after making the bid, circumstances reducing substantially the value of shares in ER, it could have refused to conclude the agreement without any penalty. In such a case, neither of the parties could have brought any claims against the other. 42. The City Court concluded that the applicant, assuming obligations in the sum of EEK 196,135,232 (EUR 12,533,000) on behalf of the State, had created a situation where the preservation of the State’s assets had been at stake. This was to be considered to have caused substantial damage to the interests of the State. The court considered it irrelevant that the threat to the preservation of the property of the State had not materialised and that the State had not sustained any real damage; the existence of the threat itself was sufficient for it to find that the offence had been committed. Furthermore, the court noted that the applicant, as a high-ranking public servant, had also caused non-pecuniary damage to the State. By disregarding the laws, he had put in doubt the lawfulness and reliability of the Agency as a State institution, thereby causing substantial damage to the authority of the State within society and also damaging the reputation of the Republic of Estonia as a contractual partner internationally. 43. The applicant lodged an appeal with the Tallinn Court of Appeal (ringkonnakohus). He alleged that in considering whether the Board had been aware of the disputed warranties in the privatisation agreement the City Court had not heard the relevant witnesses. Only a limited number of minutes of the Board’s meetings had been examined by the court. 44. Moreover, the applicant referred to the statements made by witnesses T. J. (Minister of Transport and Communications and a member of the Board at the material time) and V. S. (former Director General of the Agency), according to whom the privatisation of ER had been carried out in a manner similar to the earlier privatisation of several other enterprises and no criminal proceedings had been initiated before. The applicant referred to numerous items of evidence which the court had failed to take into account or even to analyse. 45. The applicant complained that all but three of the witnesses had not been heard by the City Court. Nevertheless, the court had to a significant extent relied on the statements of witnesses P. J., G. and H. P. By disclosing the statements of these and other witnesses at the hearing without the defence having had an opportunity to put questions to them, the City Court had violated Article 6 §§ 1 and 3 (d) of the Convention. Moreover, the court had failed to summon M. P., Chairperson of the Board, a very important witness for the defence. The defence had also requested the court to summon T. J. and had informed the court of his whereabouts; however, he had not been summoned. These facts also amounted to a violation of the procedural rules by the City Court. 46. Furthermore, the applicant argued that the City Court’s judgment had been poorly reasoned, basing his conviction on the reproduction of a list of documents and a reference to “other material in the case file” without having properly analysed the evidence and having completely disregarded most of it. For example, the applicant submitted that the City Court’s conclusion that the Board had become aware of the obligations assumed by the applicant in the privatisation agreement only retrospectively and through the media was based only on a statement from L. as reflected in the minutes of the Board’s meeting. However, L. had not been heard by the court. 47. The applicant alleged that the City Court had been wrong in concluding that the Board had made no decision concerning the obligations taken by the applicant. He argued that, after the Board had accepted the business plan on 13 December 2000, he had been obliged to conclude the privatisation agreement in accordance with it. The disputed provisions had been included in the privatisation agreement precisely because the Board had accepted the bid of BRS. Furthermore, the applicant argued that there had been no causal link between his acts and the legal consequences which had ensued, as required by the case-law relating to Article 161 of the Criminal Code. Not only had the Board been aware of the content of the privatisation agreement, both before its conclusion and thereafter, but the agreement had been approved in substance by the Board. 48. The applicant disputed the City Court’s conclusion that the obligations relating to the Russian locomotives and the claim of AS Valga Külmvagunite Depoo had not been excluded from the privatisation agreement. He insisted that the notion “excluded from the privatisation agreement” had to be interpreted as meaning that the exclusion was specifically contained in the agreement itself. He also maintained that the exact amount and nature of these obligations had not been known to the Agency and BRS at the time of the conclusion of the privatisation agreement. In fact, these obligations had never materialised; accordingly, they could not possibly have existed before the privatisation agreement had been signed and even less so in any defined nature or exact amount. 49. The applicant argued that he had not assumed obligations on behalf of the State, he had, rather, agreed on certain representations and warranties. In the situation where the Privatisation Act did not clearly regulate privatisation agreements and the Soviet Civil Code of 1964 could not be applied in the privatisation process, the State undoubtedly had to follow internationally recognised norms and practices. In the case of an international tender procedure it was not conceivable that an agreement would be concluded without any representations or warranties from the seller. The applicant argued that he had acted lawfully and in accordance with section 10(5) of the Privatisation Act, section 2(2) of the Use of Privatisation Proceeds Act (Erastamisest laekuva raha kasutamise seadus) and points 6 and 7 of the Government regulation concerning the Procedure for Covering Debts Relating to Privatised Assets and Expenses Relating to Privatisation of Assets (Erastatud varaga seotud võlgade ja vara erastamisega seotud kulude katmise kord). 50. The applicant insisted that he had neither caused any damage to the State nor created a situation where the preservation of the State’s assets had been jeopardised. Moreover, no claims had been made against the State under the disputed warranties in the privatisation agreement. He also challenged the City Court’s conclusion concerning the damage to the reputation of the State, arguing that the court had not paid attention to the excerpts from numerous international and Estonian newspapers indicating that the conclusion of the privatisation agreement and the subsequent successful performance of ER had received positive media coverage. These showed that the privatisation had had a positive impact on the reputation of the Republic of Estonia. Moreover, the City Court had failed to analyse what would have been the financial effects if the privatisation agreement had not been concluded, taking into account the fact that ER had been in a pre-insolvency situation and that its insolvency could have had serious effects on the economy of the whole country. 51. Finally, the applicant alleged that the charges against him had been politically motivated. The privatisation of 66% of shares in ER had been decided by Parliament, the Government and the Board, whose decisions the applicant had been bound to follow. However, charges had been brought only against the applicant. Moreover, the Public Prosecutor’s Office had repeatedly refused to initiate criminal proceedings against the applicant, finding that his acts had been lawful. Nevertheless, the Public Prosecutor’s Office had initiated, only a few days later and under strong political and public pressure, a criminal case against him, whereas no charges had been brought against T. J. or other participants in the privatisation process. In a whole series of analogous privatisation agreements, the agreement concerning the privatisation of ER had been the only one in respect of which a criminal investigation had been initiated. 52. The applicant requested that the Court of Appeal re-examine all the evidence in the case. 53. The Tallinn Court of Appeal heard the case on 13 April 2004. In the course of legal argument, after the prosecutor had dealt with the issue of the disclosure of witness statements, the applicant’s counsel noted that the issue of witnesses was not of primary importance. On the same date the Court of Appeal delivered the operative part of its judgment. 54. By the judgment of 13 April 2004 the Court of Appeal upheld the City Court’s judgment. It found that the witnesses who had not appeared before the City Court had informed the court that they were unable to attend the hearing. In accordance with the law of criminal procedure, their statements made during the pre-trial investigation had been read out in the City Court. Moreover, the Court of Appeal noted that the statements of witness M. P. had not been used by the City Court against the applicant. He had changed his place of residence during the proceedings and the summons previously sent to him had been returned to the court. The applicant’s lawyer had agreed to terminate the judicial examination without making any requests to the court. In respect of witness T. J., whose attendance the applicant’s lawyer had requested, the Court of Appeal noted that, according to the record of the City Court hearing, the defence lawyer had withdrawn his request. Moreover, in his appeal the applicant had not set out the names and addresses of the persons whom he wished to have examined by the Court of Appeal, as required by Article 8 § 3 of the Code of Criminal Court Appeal and Cassation Procedure (Apellatsiooni ja kassatsiooni kriminaalkohtumenetluse seadustik). Neither had such a request been made at the appeal court’s hearing. The Court of Appeal also noted that it was undisputed that the applicant had concluded the agreements concerned. The only issue at stake was the legal status of the applicant’s acts and in this context the statements of witnesses were irrelevant. 55. In respect of the initial refusal of the Public Prosecutor’s Office to initiate criminal proceedings against the applicant, the Court of Appeal noted that this had concerned only one of the two warranties, as the other one had not yet been given at that time. Moreover, according to Article 5 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), the refusal to initiate criminal proceedings did not preclude criminal proceedings concerning the same facts being initiated later. 56. The Court of Appeal noted that it had been irrelevant whether the Board had become aware of the obligations taken in the privatisation agreement before or after it had been signed by the applicant, as such awareness did not render his acts lawful. The Court of Appeal found that by its decision of 13 December 2000 the Board had accepted the business plan of BRS. However, this had not meant that the Agency had to reimburse BRS the costs relating to the purchase of Russian locomotives, but only that the Agency would not object to the use of American locomotives. 57. Furthermore, the Court of Appeal held that the disputed obligations had not been excluded from the privatisation agreement, as such an exclusion should already have been made in the tender documents. The witnesses G. S. and V. S. had submitted that no obligations or debts had been excluded. The Court of Appeal found that the parties had been aware of the possible obligations and that these obligations had been sufficiently clearly established for the bidders to be able to assess the probable risks and the scope of the obligations and make their bids accordingly. 58. The appeal court found that no legal basis had existed for the assumption of the obligations concerned. On the contrary, the City Court had referred to several provisions of law which the applicant had violated in assuming the obligations. 59. The Court of Appeal noted that the danger to the preservation of the State’s assets had constituted independent damage, and not merely a precondition for the occurrence of damage, in the present case. 60. The court considered that the statements by witness G. S., the letters from ER and BRS, indicating that they had no claims against the State, and the excerpts from newspapers could not be taken into account when assessing the significance of the damage caused to the interests of the State. A court had no obligation to give its opinion on what had been published in the press. The Court of Appeal observed that the applicant had been a high-ranking state official who had been working in a field attracting great public interest both nationally and internationally. It continued: “It is understandable that the commission of the acts of which [the applicant] was convicted by the judgment of the City Court is not in compliance with the general sense of justice. Thus [the applicant’s] acts in his capacity as an acting Director General of the Privatisation Agency, which disrespected the laws, put in doubt the lawfulness and reliability of the activities of the Privatisation Agency as a State institution, thus materially impairing the authority of the State in society, and also damaged the reputation of the Republic of Estonia as a contractual partner on the international level, so that those acts, in aggregate, had to be considered to have caused significant moral damage to the interests of the State.” 61. The Court of Appeal did not agree with the argument that the failure to conclude the privatisation agreement could have had extremely serious consequences for the Estonian economy as a whole. It noted that, even if the agreements could not have been concluded without the disputed provisions, this did not exclude the unlawfulness of the applicant’s acts or his guilt. Although the State would not have received the money for the privatisation of the shares in ER had the privatisation agreement not been concluded, it would have retained shares of the same value. 62. Finally, the Court of Appeal noted that the applicant had not been convicted in respect of the privatisation as such but rather of assuming certain obligations on behalf of the State. He had personally agreed to such obligations and was personally responsible for them. 63. The applicant appealed against the judgment of the Court of Appeal. In addition to the arguments already raised in his appeal against the City Court’s judgment, he emphasised that the Court of Appeal had not analysed several items of evidence in his favour and had limited its analysis only to the inculpating evidence. He also argued that only three witnesses had been heard before the City Court, whereas witnesses P. J., G. and H. P. had not been heard, although the applicant’s conviction had been based to a considerable extent on the statements of these witnesses. Moreover, witnesses M. P. and T. J., who had been important from the defence’s perspective, had not been heard. The sole reason why the defence had withdrawn the request to have T. J. heard in the City Court had been to avoid prolonging the proceedings. In fact, the City Court had adjourned a hearing in order to summon T. J.; however, despite the fact that the defence had provided the court with his address, the court had not sent summonses to the witness. 64. The applicant called into question the Court of Appeal’s argument that the statements of the witnesses P. J., G. and H. P. had, in fact, been irrelevant. He asked why it had been necessary to summon these witnesses if their evidence had been irrelevant. 65. The applicant argued that not only had the State sustained no damage in connection with the warranties concerning the claim of AS Valga Külmvagunite Depoo, but in fact such a claim had never existed. Thus, the Court of Appeal had wrongly considered that the claim had been sufficiently clearly established. Neither had any claims been made in connection with the warranty concerning the Russian locomotives. Moreover, from 30 April 2004 the possibility of any claims being made against the State in the future had been excluded, since the liability of the State under the representations and warranties expired three years after the date of signing the agreement. 66. The applicant insisted that, as the Board had been aware of the warranties and as it had not used its opportunity to withdraw from the agreement, it had to be concluded that, in substance, the Board had approved the warranties. 67. In respect of the non-pecuniary damage allegedly caused to the State, the applicant noted that the Court of Appeal’s reasoning had repeated almost literally the wording of the bill of indictment. The court had failed to consider the evidence submitted by the defence. 68. The applicant challenged his conviction on the basis of “the general sense of justice”, arguing that such a ground for conviction was incompatible with the principle of the rule of law. 69. Moreover, he argued that the appeal court had been wrong in finding that, had the shares in the ER not been sold, the State would have retained shares to the value of the sale price. He was of the opinion that this finding was in conflict with economic logic, as the price of the shares in an enterprise had no fixed value and the shares in an insolvent company cost nothing. He concluded that the State had sustained no damage and there had been no threat to the preservation of the property of the State. 70. The applicant insisted that he had had a right to interpret the legislation in the same manner as the Public Prosecutor’s Office, which had refused to initiate criminal proceedings against him since there had been no breach of law. As the Public Prosecutor’s Office had considered the applicant’s acts lawful before he had signed the protocol concerning the possible claims of AS Valga Külmvagunite Depoo, he had legitimately expected that he could rely on the prosecution’s interpretation according to which his acts, including the conclusion of the protocol, were lawful. He was of the opinion that his conviction had been based on laws that were not clear and understandable, as even the highest officials in the Public Prosecutor’s Office, including the Prosecutor General, had considered his acts lawful. 71. On 15 September 2004 the Supreme Court (Riigikohus) refused the applicant leave to lodge his appeal. 72. According to Article 65(10) of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) Parliament decides, on the proposal of the Government, on the assumption of financial obligations by the State. 73. Section 29 of the State Budget Act (Riigieelarve seadus), as in force at the material time, provided for ministries and state agencies to assume financial obligations only if resources had been allocated thereto in the State budget or in a budget approved by a minister on the basis thereof. Ministries and state agencies were prohibited from providing security, including furnishing guarantees, unless otherwise prescribed by law. 74. The Privatisation Act (Erastamisseadus), as in force at the material time, established that the Agency was managed by its Board, consisting of eleven members, of whom eight were appointed by the Government and one by the President of the Bank of Estonia. The Minister of Economic Affairs and the Minister of Finance were ex officio members of the Board (section 8(1)). According to section 9(2) the exclusive competence of the Board included, inter alia, the appointment and dismissal of the Director General of the Agency, the submission of the privatisation plan to the Government for approval, the establishment of supplementary conditions of privatisation, and the identification of the best bidder and (if necessary) the second-best bidder in tenders through preliminary negotiations. Pursuant to section 10(5) the Agency may decide to cover debts relating to the assets to be privatised from the privatisation proceeds (according to section 2 of the Use of Privatisation Proceeds Act), if such debts are not objects of sale. Section 21(8) stipulates that the Agency, in assessing the final tenders, determines the best bid, taking into account the established supplementary conditions and the purchase price. It may also determine the second-best bid. Section 27(1) provides that privatisation agreements of purchase and sale are drawn up in unattested written form. 75. Article 4 of the Statutes of the Privatisation Agency (Eesti Erastamisagentuuri põhimäärus) stipulates that the Agency represents the State in performing its tasks. Article 28 establishes that the Director General of the Agency manages the everyday activities of the Agency. Pursuant to Article 29(2), the Director General has to ensure the performance of the tasks arising from the Statutes and the execution of the resolutions of the Board. According to Article 29(3) the Director General signs the privatisation agreements of purchase and sale and, if necessary, makes amendments to the agreements that have entered into force, pursuant to the procedure established by the Board. 76. Under section 2(2) of the Use of Privatisation Proceeds Act (Erastamisest laekuva raha kasutamise seadus) the Agency was entitled to use privatisation proceeds to cover debts relating to privatised assets in specified cases and pursuant to the procedure established by the Government. 77. The regulation on the Procedure for Covering Debts Relating to Privatised Assets and Expenses Relating to Privatisation of Assets (Erastatud varaga seotud võlgade ja vara erastamisega seotud kulude katmise kord), promulgated by the Government, provided: “Proceeds from the privatisation of assets ... shall be used to cover the debts relating to privatised assets which are specified in points 7-9 of this procedure. Taking into account the conditions set forth in the points referred to, obligations relating to such assets shall also be deemed debts relating to privatised assets.” “Proceeds from the privatisation of shares shall be used to cover such debts of the company being privatised which have been excluded from the agreement of purchase and sale or which occurred after the conclusion of the agreement of purchase and sale, provided that the debt was not disclosed on the balance sheet of the company ... and that the parties to the agreement were not aware of the debt.” 78. The Criminal Code (Kriminaalkoodeks), a legacy of the Soviet era which was reformed in 1992 and amended on numerous occasions, was applicable at the material time. It provided: “Intentional misuse by an official of his or her official position, if it causes significant damage to the rights or interests of a person, enterprise, agency or organisation protected by law or to national interests, shall be punished by a fine or up to three years’ imprisonment.” 79. The provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks) and the Code of Criminal Court Appeal and Cassation Procedure (Apellatsiooni ja kassatsiooni kriminaalkohtumenetluse seadustik) that are pertinent to the examination of witnesses have been summarised in the Taal v. Estonia judgment (no. 13249/02, §§ 19-27, 22 November 2005). 80. The Criminal Law Chamber of the Supreme Court held in its judgment of 7 December 2000 (case no. 3-1-1-100-00): “11.4. ... Significant damage, which is an element of the offence under Article 161 of the [Criminal Code], can be both pecuniary and non-pecuniary damage caused to the interests of the State. ... 11.5. The Criminal Law Chamber of the Supreme Court finds that, as criminal law also protects values that cannot be measured in money, non-pecuniary damage inevitably has to be accepted as an element of the offence and cannot be assessed on the basis of the same criteria as pecuniary damage. The existence or absence of non-pecuniary damage and also the quantitative dimension of non-pecuniary damage (whether it is ordinary, significant or large-scale non-pecuniary damage) has to be established by a court in each individual case. What has to be considered non-pecuniary damage of an ordinary, significant or large extent is an issue of fact. In order to resolve the issue of the extent of non-pecuniary damage in an individual case, it is necessary to consider how dangerous the committed act was in view of the general sense of justice and legal awareness of society and to what extent it has damaged legally protected interests... . The extent of the damage can also be affected by factors such as the status of the official position ... of the person who had committed the act, the duration of the corrupt activity, whether it was a single instance or systematic, the number of persons affected by the unjustified or unlawful acts or decisions and their location at the local, national or international level, the type of the damage caused – the level of the ... authorities whose reputation was damaged, to what extent their credibility was damaged, whether there was interference in the normal functioning of the state authority and what that interference was, and so on. In considering those questions, it has to be taken into account that sometimes an act and its criminal consequence can be inseparable (for example, the unlawful activities of a public official constitute at the same time impairment of the reputation of a public authority).” 81. The Criminal Law Chamber of the Supreme Court has found, for example, that significant damage to legally protected rights and interests of other persons and to the national interests had been caused by a police officer who had unlawfully released a person before he had served his sentence (judgment of 7 May 1996, case no. 3-1-1-46-96). 82. In a judgment of 6 June 2000 (case no. 3-1-1-65-00), the Criminal Law Chamber of the Supreme Court dealt with a case where a first-instance court had convicted the mayor of a town of misuse of official position by endangering the preservation of the town executive’s assets and by damaging its reputation. On an appeal by the prosecutor, the Supreme Court quashed the mayor’s acquittal by the Court of Appeal, finding that he had unlawfully invested the town executive’s money, creating a danger to its preservation and causing damage to the executive’s reputation. The Supreme Court considered irrelevant the facts that the town executive and council had been aware of the mayor’s activities and that in the town executive’s view they had not been discredited. It noted that the establishment and assessment of the elements of the offence was the task of the court and not of the local government bodies connected with the matter. 83. On 1 September 2002 the Criminal Code was replaced by the new Penal Code (Karistusseadustik), which provided: “Intentional misuse by an official of his or her official position with the intention to cause significant damage or if thereby significant damage is caused to the legally protected rights or interests of another person or to public interests, shall be punished by a fine or up to three years’ imprisonment.” 84. By a legislative amendment concerning economic offences that entered into force on 15 March 2007, Article 289 of the Penal Code was repealed. In the explanatory memorandum prepared by the Ministry of Justice, it was stated that the purpose of repealing that Article was to limit the responsibility of an official for the misuse of his or her official position to cases where significant pecuniary damage had been caused to another person (a new offence of breach of confidence was proposed to that effect). It was stated in the memorandum that broad and vague definitions of the necessary elements of offences were in conflict with the general principle of legal certainty and the nulla poena sine lege principle laid down in the Constitution (Articles 13 § 2 and 23, respectively). It was reiterated that it had to be sufficiently clear to a person what kind of (lawful) conduct was expected from him or her and which circumstances determined his or her liability. Reference was also made to the interpretation of Article 7 § 1 of the Convention by the European Court of Human Rights, according to which the necessary elements of a criminal offence had to be clearly defined in law (see Veeber v. Estonia (no. 2), no. 45771/99, § 31, ECHR 2003I). Another reason provided in the explanatory memorandum for repealing Article 289 of the Penal Code was that an assessment of the significance of non-pecuniary damage caused by misuse of official position made by a court retroactively constituted a discretionary decision. Accordingly, it could be difficult for an official to predict at the time of commission of the act whether the non-pecuniary damage caused by him or her could, based on the general principles of law, be regarded as “significant” for the purposes of the definition of misuse of official position. Hence, at the time of committing the act it might not be possible to predict with sufficient certainty whether the particular misuse of official position resulting in non-pecuniary damage was punishable as a criminal offence or not. Thus, according to the memorandum, it could be concluded that in the case of a vague definition of an offence, there was a risk that damage might be deemed to be caused merely on the ground that a breach of regulations had been committed, and this, in principle, made it possible to bring charges against an official for any kind of misuse of office. Also assessment of the extent of damage in individual cases was considered to cause problems. 85. In a decision of 28 June 2005 (case no. 3-1-1-24-05), the Criminal Law Chamber of the Supreme Court raised several important issues in connection with the application of the law in cases of misuse of official position under Article 161 of the Criminal Code. The criminal case concerned charges against a person who held an official position in a public limited company. The Criminal Law Chamber noted that in its earlier case-law it had explicitly accepted that non-pecuniary damage could be caused to legal persons in public law, first and foremost to the State (including a specific government agency) and to local government bodies. However, according to the case-law of the Civil Law Chamber of the Supreme Court, a legal person could not claim compensation for non-pecuniary damage. Accordingly, the Criminal Law Chamber referred the case to the plenary Supreme Court to obtain an authoritative ruling. The Criminal Law Chamber in the above case also raised the issue of whether, if a commercial company were to be able to claim compensation for non-pecuniary damage, Article 161 of the Criminal Code was partially contrary to the Constitution. It noted that Articles 13 § 2 and 23 § 2 of the Constitution and Article 7 § 1 of the Convention embodied the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege certa). It referred to a judgment of the European Court of Human Rights in which the Court had found that an offence had to be clearly defined in law and that this requirement was satisfied where the individual could know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions would make him criminally liable (see Veeber (no. 2), cited above, § 31). The Criminal Law Chamber noted that criminal liability for misuse of an official position under Article 161 of the Criminal Code was dependent on whether the damage caused was “significant”. While there existed criteria to assess whether the pecuniary damage was “significant”, there were no objective criteria to determine the extent of non-pecuniary damage. The latter was expressed in the opinion of the court, for the purposes of which the court would consider the general principles of law, the level of society’s general welfare and case-law. Accordingly, the Criminal Law Chamber observed, a court’s retrospective assessment of the significance of non-pecuniary damage caused by misuse of official position was a discretionary decision. Therefore, it could be difficult for an official to predict at the time of the commission of an act whether on the basis of the general principles of law the non-pecuniary damage caused by him or her would amount to “significant” damage within the meaning of the offence of misuse of official position. Thus, at least in cases not covered by earlier case-law, it was not necessarily predictable with sufficient certainty whether a particular act of misuse of official position causing non-pecuniary damage would be punishable as a criminal offence. However, by a judgment of 4 November 2005, the plenary Supreme Court acquitted the defendant in the above case on the grounds that the act committed by him had not corresponded to the elements of the offence under Article 161 of the Criminal Code. Accordingly, the Supreme Court was procedurally prevented from ruling on the constitutionality of Article 161. 86. In a judgment of 8 January 2007 (case no. 3-1-1-61-06) the Criminal Law Chamber of the Supreme Court dealt with a charge concerning a violation of the requirements of public procurement under Article 300 of the Penal Code. Significant damage caused to the rights or interests of another person or to public interests was a constituent element of this offence, as in Article 161 of the Criminal Code. The court held: “13. ... [I]n order to guarantee [the defendant] the right to defence, all the factual circumstances serving as a basis for his or her criminal liability must be presented in the text of the bill of indictment in a sufficiently clear and precise manner. ... 14. The conclusion made in the bill of indictment that [the defendant] “[had] damaged fair competition as a basis of the market economy, and thus had damaged other persons’ rights and interests”, did not make it clear who were the “other persons” referred to whose rights and interests [the defendant] had damaged, what change was caused in the situation of the legally protected interests of these persons by the alleged damage and what was the extent of the damage. Charges of causing significant damage, which do not specify the injured person or the facts on the basis of which one could render a legal opinion on the nature and extent of the alleged damage, are not specific enough and the courts are not able to establish the existence of significant damage as a necessary element of the criminal offence on the basis of such charges. ... 16. ... [A]ccording to the bill of indictment [the defendant] had breached the requirements applicable to public procurement proceedings and had thereby caused significant damage by casting doubt on the impartiality and integrity of the highest official of an executive body. ... ... 19. It does not appear from the bill of indictment ... in whose eyes and to what extent the trust in the impartiality and integrity of the highest official of the executive body had been undermined as a result of the act committed by the defendant and what were the circumstances that had evidenced the undermining of the trust. In other words, the charges did not point to any facts which, if established, would have allowed the courts to conclude that [the defendant’s] act had actually undermined the credibility of state officials or to render a legal opinion as to whether such a consequence could be regarded as damage caused to a person and whether this damage was “significant” within the meaning of Article 300 of [the Penal Code]. Hence, the charges of causation of significant damage brought against [the defendant] were not specific enough in the part concerning the alleged casting of doubt on the integrity and credibility of the highest state officials either. ... 21. ... [Contrary to the requirements of the criminal procedure law], the courts were not guided – in establishing the consequence as a necessary element of the offence – by evidence which would have proved that actual changes in the reputation of state officials had occurred in the real world and that these changes had been caused by the act [of the defendant] but, instead, they were merely guided by the legal assessment of the nature of the violation committed by [the defendant]. In other words, the County Court and the Court of Appeal eliminated the boundary between the act and the consequence, considering that the breach of a law was automatically also a consequence. 22. ... [I]n criminal proceedings, none of the facts required to be proved, including consequence as a necessary element of an offence, can be established on the basis of a legal opinion. This is because a legal opinion says nothing about the changes that actually occurred or did not occur in the real world as a result of the act. A normative understanding according to which an unlawful act committed by the accused is of such a kind that it would undermine the trust of an “average person” in the integrity and impartiality of state officials cannot justify the conclusion that, in a specific case, there actually is a sufficient number of persons who are aware of this unlawful act and whose trust in the integrity and credibility of state officials is undermined as a result of this particular act. ... 27. In connection with the charge against [the defendant] that he “created a situation where there was a real danger to the purposeful and economical use of the funds from the state budget in the amount of at least 17,661,017 kroons”, the Criminal Chamber wishes to make it clear that creation of a danger and causing damage are two different types of consequences that constitute necessary elements of an offence. Creation of a danger (emergence of a dangerous situation) can be regarded as an increase in the possibility of actual damage being caused, and it comprises a necessary element of an offence only in the case of a specific danger-creating delict [ohudelikt], that is if the definition of the offence mentions the creation of a danger as a consequence being one of the necessary elements of the offence ... . If the definition of an offence mentions the causation of some kind of damage as a consequence being one of the necessary elements of the offence ... it is a delict consisting in the causation of material damage [materiaalne kahjustusdelikt]. The necessary elements of this type of offence are present only if actual damage – and not merely an increase in the possibility of damage being caused – has been caused as a result of the act. ...”
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train
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001-109060
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ENG
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RUS
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CHAMBER
| 2,012
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CASE OF TKACHEVY v. RUSSIA
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Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary damage - reserved;Non-pecuniary damage - reserved
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Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
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4. The applicants, spouses, were born in 1957 and 1966 respectively and live in Moscow. 5. At the time of the events they owned a flat at 9/12–1 Znamenka Street in Moscow, in the neighbourhood of the Moscow State Art Gallery of the People’s Artist of the USSR Alexander Shilov. The flat had six rooms and measured 121.8 m². It was occupied by the applicants, their two minor children, and a mother-in-law. 6. In April 2001 the Moscow Government decided that for the purpose of the gallery’s reconstruction the applicants’ building was to be vacated and converted into non-residential premises (Decree 373-PP). The development and resettlement of the residents were to be financed by Tverskaya Finance B.V., a private Dutch company. Upon the project’s completion, 60% of the building was to go to Tverskaya Finance, and 40% to the Moscow Government. Insofar as relevant, Decree 373-PP read as follows: “For the purpose of an all-inclusive reconstruction of the territory adjacent to the [Gallery] and in accordance with the developed architectural planning concept, the Government of Moscow decrees: 1. To accept the proposal of the Moscow Committee of Architecture to include ... the building located at 9/12–1 Znamenka into the single investment project of building and reconstruction works at Znamenka. 2. To take into account the agreement of the investor – Tverskaya Finance B.V. – to finance the building and reconstruction of the buildings. ... 4. To adopt an agreement that after the reconstruction would divide the non-residential premises at 9/12–1 Znamenka as follows: 60% to Tverskaya Finance B.V., 40% to the Department of State and Municipal Property of Moscow. 5. To take into account the investor’s agreement to finance the resettlement of tenants and owners from 9/12–1 Znamenka ... to own or acquired premises. ... 6.2. To complete the building and reconstruction works in the first quarter of 2006. ... 8. That the Prefect of the Central Administrative District together with the Department of Municipal Housing and Housing Policy of the Moscow Government should formalise the conversion of 9/12–1 Znamenka into non-residential premises.” 7. The applicants opposed this project and in May 2003 they challenged Decree 373-PP in a court. 8. In August 2003 the authorities requested the State Enterprise Moszhilniiproekt, a public surveying agency, to deliver a report on the building’s technical condition. The request was phrased to be “in execution of the assignment by the First Deputy of the prefect of the Central Administrative Circuit of Moscow on the subject of finding [the building] a dangerous structure”. Moszhilniiproekt found that the building was under the threat of collapse. 9. In November 2003–February 2004 the Moscow Government offered the applicants to choose a replacement flat from a four-room flat of 149 m² at 77 Udaltsova Street, a four-room flat of 105 m² at 12 Tverskaya Street, a five-room flat of 125 m² at 9/6 Zamorenova Street, and a five-room flat of 112 m² at 39/6 Dolgorukovskaya Street. The applicants rejected these offers. 10. In April 2004 the Moscow Government classified the building as a dangerous structure and ordered its conversion into non-residential premises (Decree 669-RP). Insofar as relevant, Decree 669-RP read as follows: “[It is hereby ordered]: 1. To classify the residential building located at 9/12–1 Znamenka as a dangerous structure and subsequently rebuild it into non-living premises. 2. To take into account that 2.1. In accordance with [Decree 373-PP] the investor is Tverskaya Finance B.V. 2.2. Tverskaya Finance B.V. is the beneficiary of a lease ... of the land plot for the reconstruction and building of the complex of the buildings including 9/12–1 Znamenka. 3. To establish that the residents of the dangerous building are to be resettled to residential premises acquired at the investor’s expense. ... 7. That the Prefect of the Central Administrative District shall 7.1. Together with the Department of Housing Policy and Housing Stock of Moscow resettle the residents from the dangerous building at the investor’s expense and to the premises acquired by the investor in 2004. ... 7.4. Charge the transportation costs related to the resettlement to the investor.” 11. In October 2004 the applicants requested NPTs Rekonstruktsia, a private surveying agency, to deliver an alternative report on the building’s technical condition. Rekonstruktsia found that the building was safe and could be repaired without resettling the residents. 12. On 1 October 2004 the Tverskoy District Court of Moscow found Decree 373-PP lawful because, among other things, the building had been classified dangerous. The court wrote: “The [applicants] affirm that the Decree transfers their property to Tverskaya Finance B.V. But this affirmation is wrong because the Decree merely grants to the investor the right to finance the building works, reconstruction, and restoration of the buildings, and to subsequently acquire a part in those buildings. ... There is no merit either in [the applicants’] argument that their building belongs to the cultural heritage, is a monument of history and culture, and hence cannot be reconstructed.... [The applicants] have provided no evidence that 9/12–1 Znamenka is in the State Register of cultural heritage and monuments. [The applicants] consider that their building is not dangerous and can be lived in. This argument is belied by the survey report of August 2003 by Moszhilniiproekt ... and by [Decree 669-RP]. [The applicants] consider that there had been no legal grounds for the conversion of their building into non-living premises. But it has been shown that the residence at 9/12–1 Znamenka has been found dangerous and unfit for permanent living. It is for this reason that the building has been converted into non-living premises.... [The applicants] also claim that [Decree 373-PP] violates their housing rights and deprives them of the flat they own. This claim is hollow. It is belied by the contents of the case file and, in the first place, by the Decree itself, because it contains no clause on dispossession.” On 12 January 2005 the Moscow City Court upheld that judgment. 13. Tverskaya Finance bought a flat at 26 Krasnoprudnaya Street and offered it to the applicants as replacement. The flat had six rooms and measured 131.1 m². The applicants rejected this offer, mainly because they did not wish to change the neighbourhood and because the new flat was, in their view, of a worse quality. In August–December 2004 Tverskaya Finance and the Moscow Government asked a court to evict the applicants. 14. On 26 January 2005 the Khamovnicheskiy District Court of Moscow evicted the applicants. The court found, among other things, that after the reconstruction the building would be used as non-residential premises, and that the replacement flat was larger and dearer. Despite the applicants’ objection, the court relied on a valuation report commissioned by Tverskaya Finance that evaluated Znamenka at RUB 7,556,856 and Krasnoprudnaya at RUB 10,311,148. The court wrote: “As the flat is [the applicants’] only residence, the replacement flat should be of equal quality. The court considers that a replacement flat ... is of equal quality if ... it is located within the borders of the same town and is of the same size or larger. The court considers that the flat to which the plaintiffs are asking to resettle [the applicants] meets these criteria fully. It is located within Moscow’s administrative border, and even in the same district where [the applicants’] family lives now. The flat meets sanitary and technical requirements, is fit for living, and has all comforts. Its size and price exceed the [applicants’] current flat. The court considers therefore that the [applicants’] resettlement to Krasnoprudnaya not only respects their rights and freedoms but also improves their living conditions. ... The fact that 9/12–1 Znamenka is destined to be rebuilt and not demolished cannot [prevent the eviction], because ... in future the building will be used for non-living purposes. The court ignores the [applicants’] argument that the resettlement will infringe the housing rights and interests of their children who go to a nearby school and will be unable to commute on the metro. At Krasnoprudnaya there are also secondary schools that the [applicants’] daughter will be able to attend. As to the son’s having to commute on the metro, the evidence submitted shows no medical contra-indications to it.” On 18 April 2005 the Moscow City Court upheld that judgment. 15. In June 2005 the applicants moved to 26 Krasnoprudnaya Street. 16. In March 2008 the Moscow Government granted the whole of the Znamenka building to Tverskaya Finance (Decree 221-PP). Insofar as relevant, Decree 221-PP read as follows: “For the purpose of the completion of the implementation of the investment building project, reconstruction and restoration of the buildings located at 9/12 Znamenka ... it is hereby ordered: 1. To extend for Tverskaya Finance B.V. the term of the building works, reconstruction and restoration of the buildings ... for not more than 18 months ... without penalties. 2. To take into account the pledge of Tverskaya Finance B.V. to ... 2.4. Carry out emergency works and full restoration and adaptation of 9/12–1 Znamenka. 3. To take into account the fact that ... 3.3. In the course of the implementation of the investment project the investor has resettled the residents ... from 9/12–1 Znamenka.... Tverskaya Finance B.V. has received property rights to 1,324.1 m² of premises at 9/12–1 Znamenka, including 764 m² of residential premises and 560.1 m² of non-residential premises.... ... 6. To take into account the parties’ agreement to the following changes in the distribution of the property upon the project’s completion: ... 6.2. As regards the second part of the project the contractual distribution of property between the parties shall be as follows: – 100% of 9/12–1 Znamenka ... shall be transferred to the investor’s property.” 17. According to the applicants, the building has been rebuilt into a premium residential property. According to the Government, the construction is still underway, and the building will house commercial and administrative premises. 18. The Government based this statement on information available from the website located at http://znamenka9.ru. At the time of the Court’s examination of the case, that website shows that 9/12–1 Znamenka is a block of flats offered for sale. The applicants’ former flat on the third floor appears to have been reduced to a flat of 85.8 m² (marked on the plan as “Flat F”). The website lauds the uniqueness and historicity of the neighbourhood, quotes poetry (“Неподражаемой России незаменимая земля” – “Inimitable Russia’s irreplaceable land”), and extols the sights of the nearby Cathedral of Christ the Saviour, Kremlin, Pashkov House, and Zamoskvorechye. 19. In October 2003 the first applicant requested a court to order Moszhilniiproekt to make available its survey report. From 2003 to 2006 different courts several times refused to examine this request due to the applicant’s failure to comply with technical formalities, to pay a court fee, and to respect jurisdiction. On 27 April 2006 the Moscow City Court finally rejected the request because it was aimed at discovery of exhibits used in the applicant’s other litigation and hence was not amenable to separate proceedings. 20. In January 2005 the first applicant requested the Khamovnicheskiy District Court to invalidate the contract between the gallery, Tverskaya Finance, and the Moscow Government concerning the Znamenka development. On 25 April 2006 the Moscow City Court refused to examine that request because the first applicant no longer lived in Znamenka and hence was not personally affected by the contract. 21. Under section 35-3 of the Constitution, nobody can be deprived of his possessions save by a judicial decision. The compulsory taking of property for State needs is possible only on condition of an equivalent preliminary reimbursement. 22. Under section 49-3 of the Housing Code of 1983 in force at the material time, if a building containing privatised flats was to be demolished pursuant to applicable laws, the local authority or the demolishing enterprise was, with the evicted owners’ consent, to provide them with an equivalent residence or other compensation.
| 1
|
train
|
001-67030
|
ENG
|
ISL
|
CHAMBER
| 2,004
|
CASE OF KJARTAN ÁSMUNDSSON v. ICELAND
| 1
|
Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
|
David Thór Björgvinsson;Gaukur Jörundsson
|
8. The applicant was born in 1949 and lives in Reykjavik. In 1969, at the age of 20, the applicant completed his training as a navigation officer at the Icelandic College of Navigation and started work as a seaman. This he continued to do until 1978, when he sustained a serious work accident on board a trawler. His right leg was struck by a 200 kg stone object, causing a compound fracture of his ankle. As a result, he had to give up work as a seaman. His disability was assessed at 100%, which made him eligible for a disability pension from the Seamen’s Pension Fund (“the Pension Fund”), to which he paid premiums intermittently from 1969 until 1981. The assessment was made on the basis of the criteria that applied under section 13(1) and (4) of the Seamen’s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”), notably that the claimant was unable to carry out the work he had performed before his disability, that his participation in the Fund had been intended to insure against this contingency, and that he had a sustained loss of fitness for work (of 35% or more). The applicant underwent regular disability assessments by a physician accredited by the Pension Fund and was each time assessed as 100% disabled in relation to his previous job. 9. After his accident the applicant joined a transport company, Samskip Ltd, as an office assistant, and is still employed there as head of the claims department. 10. In 1992 the 1974 Act was amended by sections 5 and 8 of Law no. 44/1992 (“the 1992 Act”), which considerably altered the basis for the assessment of disability in that the assessment was to be based not on the Pension Fund beneficiaries’ inability to perform the same work but work in general. The new provisions had been enacted on the initiative of the Pension Fund and in view of the Fund’s financial difficulties (according to an audit, at the beginning of 1990 the Pension Fund had a deficit of at least 20,000,000,000 Icelandic krónur (ISK)). The Pension Fund applied the new provisions not only to persons who had claimed a disability pension after the date of their entry into force but also to persons who were already in receipt of a disability pension before that date. 11. Under an interim provision in section 5, the above change to the reference criteria was not to apply for the first five years after the commencement of the 1992 Act to a person who, before its entry into force, was already receiving a disability pension. 12. Under the new rules, a fresh assessment of the applicant’s disability was carried out by an officially accredited Pension Fund physician, who concluded that the applicant’s loss of capacity for work in general was 25%, and thus did not reach the minimum level of 35%. As a result, from 1 July 1997 onwards the Pension Fund stopped paying the applicant the disability pension and related child benefits he had been receiving for nearly twenty years since the accident in 1978. 13. According to information obtained by the Government from the Pension Fund and submitted to the Court, the applicant had been one of 336 Fund members who were receiving disability pensions in June 1992 under the interim provision in section 5 of the 1992 Act (see paragraph 21 below). On 1 July 1997 the total number of disability pension recipients was 689. This included Fund members who had not become entitled to a disability pension until after the commencement of the 1992 Act in June 1992. The cases of the aforementioned 336 persons receiving disability pensions from the Fund, who had acquired their entitlement before that time and were still drawing disability pensions in 1996, were reviewed in late 1996 and early 1997 in the light of their capacity for work in general. Altogether, 104 members of this group of disability pensioners had their benefits reduced in July 1997 as a result of the new rules on disability assessment under the 1992 Act. In the case of 54 Fund members, including the applicant, the disability rating for work in general did not reach the level of 35% required under the Act to retain entitlement to disability benefit, and so benefit payments were discontinued. The disability ratings of 29 members were reduced from 100% to 50% and those of 21 members from 100% to 65%. 14. The applicant instituted proceedings against the Pension Fund and, in the alternative, against both the Fund and the Icelandic State, challenging the Fund’s decision to discontinue the payments to him. In a judgment of 12 May 1999, the Reykjavik District Court found for the defendants. 15. The applicant appealed to the Supreme Court, which by a judgment of 9 December 1999 upheld the judgment of the District Court. 16. The Supreme Court accepted that the applicant’s pension rights under the 1974 Act were protected by the relevant provisions of the Icelandic Constitution as property rights. However, it considered that the measures taken by virtue of the 1992 Act had been justified by the Pension Fund’s financial difficulties. The Supreme Court stated: “The pension rights that the appellant had earned under Law no. 49/1974 were protected under what was then Article 67 of the Constitution (currently Article 72 of the Constitution – see section 10 of the Constitutional Law Act, Law no. 87/1995). Under the constitutional provision referred to above, he could not be deprived of those rights except under an unequivocal provision of law. The Court does not consider that section 8 of Law no. 49/1974 provided authorisation for the [Pension Fund] Board to curtail the benefit provisions; this could only be done under an unequivocal provision of law. Nor can the Court accept that the wording of subsection (1) of section 13 of Law no. 49/1974 meant that the Fund member did not have an unequivocal right to have his disability assessed in terms of his capacity to do his previous job. The evidence in the case shows that the Pension Fund was operated at a considerable deficit, and that at the end of 1989 more than ISK 20,000,000,000 would have been needed for the principal of the Fund, together with the premiums that it could expect, to cover its commitments, this estimate being based on an annual interest rate of 3%. In order to tackle this large deficit, the Fund’s Board asked for amendments to be made to the Act under which the Fund operated. It is clear that the reduction of the pension rights that resulted from Law no. 44/1992 was based on relevant considerations. Even though that Act was repealed by Law no. 94/1994, this does not change the fact that the appellant’s legal position had already been determined by Law no. 44/1992. The Court concurs with the District Court’s view that Law no. 94/1994 did not constitute a valid legal authorisation for making amendments to the rights that the Fund member had earned during the period of validity of the former legislation. The reduction according to Act no. 44/1992 was of a general nature as it treated in a comparable manner all those who enjoyed or could enjoy pension rights. An adaptation period of five years applied to all pensioners, as stated above. All those who can be considered to be in a comparable situation have been treated equally ...” 17. On 1 July 1997 the applicant lost pension rights (disability and children’s annuity benefits) amounting to ISK 12,637,600. He presented the following breakdown of this figure: Value of the principal, based on disability pension payment of ISK 61,356 per month until he reached the age of 65: ISK 9,373,300 Value of the principal of child benefit based on the same premises, until the children reached the age of 18: Kristinn July 1997-March 1998 ISK 136,100 Anna Margrét July 1997-August 2006 ISK 1,469,600 Asmundur July 1997-January 2009 ISK 1,658,600 Total ISK 12,637,600 18. The applicant has supplied the following information about his income from 1997 onwards: 1997 ISK 2,789,995 1998 ISK 3,305,268 1999 ISK 3,454,445 2000 ISK 3,774,248 2001 ISK 4,187,987 2002 ISK 4,558,248 Total ISK 22,050,191 19. The applicant has also submitted certain figures from a survey of seamen’s salaries obtained from the Icelandic Merchant Navy and Fishing Vessels Officers’ Guild: “Ordinary seaman” Second mate First mate Master 1997 5,153,424 6,441,780 7,730,137 10,306,849 1998 5,580,795 6,975,994 8,371,193 11,161,590 1999 6,166,029 7,707,537 9,249,044 12,332,059 2000 5,949,075 7,436,344 8,923,613 11,898,150 2001 6,415,252 8,019,064 9,622,877 12,830,503 2002 5,654,756 7,068,445 8,482,134 11,309,513 Total 34,919,332 43,649,164 52,378,997 69,838,663 Income derived by the applicant from office work: 22,050,191 22,050,191 22,050,191 22,050,191 Difference 12,869,141 21,598,973 30,328,806 47,788,472 20. Section 13(1) and (4) of the Seamen’s Pension Fund Act (Law no. 49/1974 – “the 1974 Act”) read: “(1) Each Fund member who has paid premiums to the Fund for the past three calendar years, and for at least six of the past twelve months, shall be entitled to a disability pension if he suffers a loss of fitness for work that the senior consulting physician assesses at 35% or more. This disability assessment shall be based mainly on the Fund member’s incapacity to do the job in which he was engaged and on which his membership of the Fund is based. Despite being disabled, no person shall be entitled to a disability pension while retaining full wages for the job that he used to do, or while receiving equally high wages for another job which grants pension rights, and the pension shall never be higher than the equivalent of the loss of income demonstrably incurred by the Fund member as a result of his disability. ... (4) A disabled person who applies for a disability pension from the Fund or receives such a pension shall be obliged to provide the Board of the Fund with all the information on his health and earned income that is necessary to determine his right to receive the pension.” Under section 15(3) of the 1974 Act the applicant was eligible to receive child benefits. 21. Section 5 of Law no. 44/1992 (“the 1992 Act”) read: “For the first five years after the commencement of this Act, the disability assessment of disability pensioners who already receive benefit due to loss of working capacity before the commencement of the Act shall be based on their incapacity for the job in which they were previously engaged and on which their membership of the Fund is based, but after that time it shall be based on their incapacity for work in general. Furthermore, the change in the child benefit entitlement of the recipients of disability pensions resulting from section 8 of this Act shall not take effect until five years after the commencement of the Act.” 22. The 1974 Act, as amended by the 1992 Act, was replaced by Law no. 94/1994 (“the 1994 Act”) when it came into force on 1 September 1994. All the provisions covering the basis of disability pensions and child benefit payments were removed from the Act and included in the Regulations on the Seamen’s Pension Fund, which also came into force on 1 September 1994. According to the Government, this did not affect the applicant specifically, since the interim provision of the 1992 Act still applied to his situation until 1 July 1997. The applicant contended that the interim provision had been repealed on 1 September 1994.
| 0
|
train
|
001-95075
|
ENG
|
UKR
|
CHAMBER
| 2,009
|
CASE OF GLUSHKO v. UKRAINE
| 4
|
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
4. The applicant was born in 1954 and died on 10 September 2008. 5. On 3 April 1994 the applicant had a work-related accident. Subsequently, he received the status of a partially disabled person. 6. The applicant's former employer, the State company “Makeyivvugillya” (“the company”) paid the applicant a lump sum accident benefit and awarded him a monthly allowance for his disability. 7. In 2003 the applicant instituted proceedings in the Tsentralnogorodskoy Court of Makeyevka against the company and the State Insurance Fund for Industrial Accidents and Diseases (“the Fund”). He sought re-calculation of the above allowances and claimed compensation for losses sustained due to erroneous calculation. 8. On 29 October 2003 the court found for the applicant and awarded him 42,970.19 Ukrainian hryvnas (UAH), to be paid by the company, and UAH 12,485.76 to be paid by the Fund. 9. On 25 February 2004 the Tsentralno-gorodskoy District Bailiffs' Service of Makeyevka instituted enforcement proceedings. 10. On an unspecified date the Fund paid the applicant the full amount awarded under the judgment. 11. In the period from 24 December 2004 to 26 July 2005 the company partly paid its debt. The judgment remains unenforced. 12. The relevant domestic law is summarised in the Romashov v. Ukraine judgment (no. 67534/01, §§ 16-19, 27 July 2004).
| 1
|
train
|
001-87280
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF MATVIYETS v. RUSSIA
| 4
|
Violation of Article 6 - Right to a fair trial
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
4. The applicant was born in 1926 and lives in Voronezh. 5. The applicant is a veteran of World War II. Under domestic law the State must subsidise his car’s running costs. Not having received the subsidy in 1996–99, the applicant applied to a court. 6. On 29 May 2001 the Tsentralnyi District Court of Voronezh awarded the applicant 3,666.67 Russian roubles against a regional authority. On 8 June 2001 the judgment became binding, and on 8 May 2007 it was enforced. 7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a judgment must be enforced within two months.
| 1
|
train
|
001-111989
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,012
|
KABUROV v. BULGARIA
| 3
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
The applicant, Mr Spas Spasov Kaburov, is a Bulgarian national who was born in 1996 and lives in Pazardzhik. He is represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The respondent Government are represented by Ms M. Dimova, of the Ministry of Justice. 1. The applicant is the son of Mr Kaburov, who died on 14 June 2000. The facts of the case, as submitted by the parties, may be summarised as follows. 2. According to the applicant, in the evening of 4 November 1997 his father, Mr Kaburov, was stopped by a police officer in front of his house. The officer wanted to seize Mr Kaburov’s car on suspicion that it had been stolen. 3. Mr Kaburov refused to surrender the car, as the police officer did not present any seizure order or other relevant document. He got into the car and drove away, with the police chasing him. 4. Shortly thereafter more police cars joined the chase. The policemen signalled Mr Kaburov to stop but he failed to do so. They fired shots at his car, shooting its tyres flat. Mr Kaburov got out of the car. Allegedly, after the police officers had caught him, they beat him, punching and kicking him, as a result of which he lost consciousness. 5. According to the Government, in the evening of 4 November 1997 a police officer, acting with the consent of the district prosecutor, went to Mr Kaburov’s home to seize his car on suspicion that it had been imported and registered with false documents. He informed Mr Kaburov that the car was being seized and requested the registration documents and the keys of the car. Mr Kaburov refused to comply with the instructions, threatened the police officer and drove away in the car. The police officer called for help and started chasing Mr Kaburov. Three patrol cars joined the chase. The policemen shot the tyres of Mr Kaburov’s car flat and stopped it. Then Mr Kaburov resisted the policemen and they had to use physical force and other means of restraint in order to arrest him, thereby causing him minor bodily harm. His car was seized. 6. After the incident the policemen called an ambulance and Mr Kaburov was taken to the hospital in Pazardzhik, where he was examined by a doctor and the wounds on his head were stitched. He discharged himself from the hospital the following morning. 7. On 5 November 1997 Mr Kaburov was examined by a forensic doctor, who found wounds on his forehead and nose, abrasions on his face and thighs and many bruises on his back. The doctor found that these injuries could have been inflicted at the time and in the way Mr Kaburov alleged and that the allegations that he had lost consciousness had to be proved by witnesses. 8. On 6 November 1997 Mr Kaburov went to the hospital in Plovdiv, where he stayed for four days, as it was established that he had broken ribs. 9. On 4 and 5 November 1997 the police took written statements from the policemen who had been involved in the chase. The policemen, Mr B., Mr G., Mr S.P., Mr T. and Mr V., stated that after Mr Kaburov’s tyres had been shot flat, he had got out of the car and had stumbled and fallen. He got up and cursed and threatened them. According to Mr B., his resistance lasted about a minute, after which he was handcuffed and put in the patrol car. 10. The road traffic policemen Mr S.B. and Mr D. stated that they had been called after Mr Kaburov’s arrest and requested to test him for alcohol. However, when they arrived, Mr Kaburov’s condition did not permit the use of a breath alcohol test, and therefore a physician took a blood sample from him. 11. On 14 November 1997 Mr Kaburov lodged a criminal complaint with the military prosecutor. He enclosed written statements from three individuals, Mr M., Mr H.P. and Mr S.T., who had allegedly observed his arrest from a nearby café. According to their statements, after Mr Kaburov’s tyres had been shot flat, he had got out of the car and was standing next to it. Two policemen had started beating him and kicking him. He had lost consciousness. Then the policemen had handcuffed him and put him into the police car. 12. On 11 May 1998 the Plovidiv regional military prosecutor refused to open criminal proceedings. He reasoned that Mr Kaburov’s car had been registered with false documents and that during the police check he had refused to comply with the policemen’s orders and had tried to escape in his car. Therefore the policemen had shot at its tyres and subsequently had used physical force against him. He further stated that it had not been proved that the policemen had abused their power. 13. On an appeal, on 17 June 1998 the military appeals prosecutor quashed the refusal and remitted the case for further inquiry. He instructed the regional military prosecutor to question the policemen and Mr Kaburov’s wife. 14. In a letter to the military appeals prosecutor of 3 August 1998 Mr Kaburov insisted that the inquiry should not be carried out by the policemen’s superiors, because they had an interest in the outcome of the case. He again requested that eyewitnesses Mr M., Mr H.P. and Mr S.T. be questioned and enclosed written statements from two other individuals who had allegedly seen policemen shooting at Mr Kaburov’s car during the chase. 15. On 5 August 1998 the military appeals prosecutor forwarded Mr Kaburov’s letter to the regional military prosecutor. There is no information as to whether the latter responded to his requests. 16. In October 1998 the regional military prosecutor questioned Mr Kaburov’s wife and three policemen and took written statements from several other policemen. On 27 October 1999 he again refused to open criminal proceedings, reasoning, without elaborating further, that he could not reach an unequivocal conclusion that the policemen had used excessive force against Mr Kaburov. 17. In a letter to the regional military prosecutor’s office in March 2000 Mr Kaburov requested that the prosecutor working on his case be replaced. It appears that his request was dismissed. 18. On 28 April 2000 the regional military prosecutor opened an investigation into Mr Kaburov’s allegations of ill-treatment. 19. Between April and June 2000 the regional military prosecutor and the military investigator questioned at least thirteen witnesses. 20. The policeman Mr B. confirmed his earlier statement that Mr Kaburov had stumbled and fallen down while getting out of his car (see paragraph 9 above). He further stated that after Mr Kaburov had stood up, he had insulted and threatened the policemen. Then one of the officers had knocked him over and Mr B. had managed to handcuff him and put him into the car. Mr B. also stated that the purpose of calling an ambulance was to carry out an alcohol test on Mr Kaburov. 21. The policeman Mr G. stated that after Mr Kaburov’s car had been stopped, Mr Kaburov had attacked him and had shouted threats at him, after which they had grappled and fallen to the ground. Then another policeman had managed to handcuff Mr Kaburov. Other policemen had arrived and Mr Kaburov had been put into the police car. 22. Eyewitnesses Mr M. and Mr S.T. stated that one policeman had grabbed Mr Kaburov and another had hit him with his pistol. Then other policemen had kicked him. The witnesses stated that they would not be able to recognise the policemen. 23. On 14 June 2000 Mr Kaburov was killed. His widow and another individual were convicted of the murder. 24. In August 2000 the eyewitnesses Mr M. and Mr S.T. were questioned again. They confirmed their previous testimony. 25. On 28 August 2000 the military investigator suggested that the criminal proceedings be discontinued. He reasoned that it had not been established which officer had hit Mr Kaburov, and again concluded that it had not been unequivocally proved that the policemen had used excessive force against him. He further stated that after Mr Kaburov’s death it was no longer possible to hold a confrontation between him and the police officers. 26. On 18 September 2000 the regional military prosecutor terminated the criminal proceedings, giving similar reasoning. 27. On 10 October 2000 the military appeals prosecutor quashed the decision of 18 September 2000 and remitted the case with instructions for a thorough investigation. 28. On 27 November 2000 the regional military prosecutor remitted the case to the investigator. 29. On 5 March 2001 eyewitness Mr S.T. was questioned again. He stated that he had previously been addicted to drugs but had undergone successful treatment. He further stated that on 4 November 1997 Mr Kaburov had not resisted the policemen. He also stated that he was not sure if any of the policemen had hit Mr Kaburov. 30. On 26 January 2001 the investigator organised an identity parade at which eyewitnesses Mr M. and Mr H.P. could not identify any of the individuals presented as the policemen who had beaten Mr Kaburov. 31. On 5 February 2001 the military investigator suggested that the proceedings be terminated, finding that there was no indication of any unlawful conduct on the part of the policemen during Mr Kaburov’s arrest. 32. On 2 April 2001 the regional military prosecutor terminated the proceedings. He stated that Mr Kaburov had resisted the policemen and that therefore the use of physical force against him had been justified. 33. On 11 April 2001 the military appeals prosecutor upheld the decree of 2 April 2001 with similar reasoning. 34. In a final decision of 27 April 2001 the Military Court of Appeal upheld the decree of 11 April 2001. It reasoned that Mr Kaburov had resisted the policemen, which had prompted them to use “physical force and other means of restraint” against him, thereby inflicting wounds and bruises on his face, back and both thighs. 35. On 5 January 1998 the Pazardzhik district prosecutor opened an investigation in respect of Mr Kaburov, on suspicion that during the incident of 4 November 1997 he had insulted a police officer and threatened him with murder, and had refused to comply with the orders of police officers. During the investigation she questioned the individuals who had participated in the events of 4 November 1997. Following Mr Kaburov’s death, she terminated the proceedings on 23 August 2000. In a final decision of 5 October 2000 the Pazardzhik Regional Court upheld the termination. 36. During the incident of 4 November 1997 Mr Kaburov’s car was seized in connection with the alleged document fraud. It is not clear whether any proceedings were instituted against him. Eventually, on 4 October 1998 the car was returned to him, as the prosecution authorities found that its seizure was no longer necessary for the purposes of the investigation. Apparently, it turned out that the car had not been stolen. 37. On 25 January 2000 Mr Kaburov brought an action against the Pazardzhik District Police Directorate and the prosecution authorities under the State and Municipalities Responsibility for Damage Act. The applicant presented his version of the events of 4 November 1997 and submitted medical certificates in support of his allegations that he had been beaten by police officers. He sought 9,000 Bulgarian levs (BGN) (approximately 4,500 euros (EUR)) in damages, stemming from the suffering, anguish and anxiety that he had undergone because of the shooting and the beating. He also claimed that the seizure of the car had been unlawful as the seizure procedure had been breached, and claimed initially BGN 3,000, later increased to BGN 3,300 (approximately EUR 1,150) in pecuniary damages, stemming from the impossibility to use his car for the period of its seizure between 4 November 1997 and 4 October 1998. 38. In the course of the proceedings, on 14 June 2000 Mr Kaburov died. The applicant, then aged four and represented by his mother, intervened in the proceedings as his son. 39. In a judgment of 28 May 2005 the Pazardzhik District Court dismissed the claim. Relying on the documents gathered in the course of the criminal investigation against the police officers (see paragraphs 9-34 above) and against Mr Kaburov (see paragraph 35 above), on medical expert opinions and on witness statements, the District Court established that in the evening of 4 November 1997 a police officer had visited Mr Kaburov’s home to seize his car in connection with a police inquiry. Mr Kaburov had refused to surrender the car, had threatened to kill the police officer and had driven away. The police officer and three patrol cars had started chasing Mr Kaburov. The policemen had shot the tyres of Mr Kaburov’s car flat and had stopped it. The District Court further established: “Kaburov’s arrest followed, [he] resisted the policemen and [they] had to use physical force and other means of restraint, whereby minor bodily harm was caused to Kaburov...” 40. The District Court noted that Mr Kaburov had wounds on the head, skin abrasions and bruises on the face, back and both thighs as well as a closed thoracic trauma. However, it found that it had not been proved that Mr Kaburov had experienced any pain or suffering as a result of those injuries. It also noted that the policemen had fired shots at his car because he had tried to escape, and concluded that the force used during his arrest had been necessary within the boundaries allowed by the relevant legislation. It further noted that the plaintiff had not proved that Mr Kaburov had been frightened by the shots. 41. The District Court held that the seizure of the car had been lawful. It also found that no damages were due, as the applicant had claimed compensation for lost rental income but had failed to prove that he would have rented out the car. 42. On appeal, the judgment was upheld in a final judgment of the Pazardzhik Regional Court of 6 January 2006. 43. The applicable provisions of the Criminal Code and the State and Municipalities Responsibility for Damage Act (“the SMRDA”) concerning ill-treatment by the police are set out in the Court’s judgment in the case of Shishkovi v. Bulgaria, no. 17322/04, §§ 22-23, 25 March 2010. Pursuant to section 6 of the SMRDA, if the alleged victim dies, their right to compensation for pecuniary damage is inherited. However, the right to compensation for non-pecuniary damage is inherited only if such an action has been brought by the alleged victim before his or her death. In the latter case the heirs may intervene in the pending proceedings in the alleged victim’s stead.
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train
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001-73312
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ENG
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FRA
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CHAMBER
| 2,006
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CASE OF LEGER v. FRANCE
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No violation of Art. 5-1-a;No violation of Art. 3
| null |
7. The applicant was born in 1937 and lives in Landas. 8. In July 1964 the applicant was prosecuted for the abduction and murder of Luc Taron, an 11-year-old boy, on 26 and 27 May 1964. 9. On 5 July 1964, while in police custody, the applicant signed a confession which he stood by for the first ten months of the investigation. Later that day he was placed in pre-trial detention. The investigating judge questioned him on several occasions about the reasons for his conduct, which was inconsistent with his confession, but the applicant refused to offer an explanation. 10. On 21 December 1964 a panel of experts in neuropsychiatry submitted a report. The experts submitted that the applicant had not been suffering from mental illness at the time of the events and contended that the physiological and psychological abnormalities observed, coupled with the applicant’s alleged memory loss at the time of the killing, “[made] it impossible to rule out the presence of an epileptic symptom with a twilight state and dimming of consciousness”. They concluded that the applicant was “dangerous” and “liable to a criminal penalty” and that “the organic disorders observed would be amenable to palliative treatment alone and dictate[d] that his social rehabilitation [could] be envisaged only with the utmost caution”. 11. A second report was submitted on 30 April 1965. It concluded that the applicant was “not mentally ill and should not be admitted to a psychiatric hospital. He is fit to stand trial. He must answer for his actions in court. He is a danger to public safety.” 12. On 11 June 1965 the applicant retracted his confession but refused to expand on his muddled and limited explanations. He has protested his innocence ever since. 13. In a judgment of 7 May 1966 the Seine-et-Oise Assize Court found the applicant guilty of abduction and subsequent murder, with mitigating circumstances. The Assize Court held that the offence should not be classified as premeditated murder (assassinat). Although the prosecution had not sought a specific penalty, the applicant was sentenced to life imprisonment, but no minimum term was set (see paragraph 34 below). After the verdict had been read out by the President of the Assize Court, the applicant protested that there had been a miscarriage of justice and gave the name of a person who, according to him, was guilty. An appeal on points of law by the civil party was dismissed on 29 November 1966. 14. The applicant’s wife died in unexplained circumstances in January 1970, after she had written to tell him that she knew he was innocent and that she had received death threats from one of the two real culprits. 15. On 17 June 1971 the applicant, through his lawyer, who had nevertheless entered a guilty plea on his behalf, lodged an initial application for a retrial, which was apparently not examined. 16. On 6 September 1974 the applicant’s lawyer lodged a second application for a retrial with the Minister of Justice. The application gave rise to an investigation, the findings of which were due to be disclosed to the lawyer. However, the lawyer died before the report was submitted and the findings of the investigation were never forwarded to the applicant. Several months later, the applicant was notified orally that the application had been dismissed. 17. On 5 July 1979, on the expiry of a “probationary period” of 15 years (see paragraph 39 below), the applicant became eligible for release. 18. The applicant applied for release on licence on several occasions. In 1984 he received the support of the President of the Ligue des droits de l’Homme (Human Rights League). The civil party subsequently issued death threats against the applicant in the event of his release from prison. 19. His applications for release on licence were transmitted in 1985, 1988, 1990, 1991, 1992, 1993, 1994, 1995 and 1997 to the Minister of Justice, who at the time was empowered to deal with such matters, and were refused, in many cases for his own safety despite “evidence supporting them”, as Mr Toubon, the Minister of Justice from 1995 to 1997, explained in a press article published on 8 June 2000. 20. The applicant also made several applications for a presidential pardon. Some of them did not receive a reply. The last one, submitted in 1998, was refused after an expert medical assessment had concluded that the applicant’s state of health was compatible with detention. 21. On 18 March 1999 a lawyer belonging to the Lille Bar applied for the applicant’s release on licence. The sentence enforcement board gave a positive opinion, but consideration of the application was adjourned pending the submission of a fresh expert report. 22. On 4 October 1999 the experts submitted their report, which read: “... Previous expert reports Among the documents consulted, we have considered in particular the expert reports by the following psychiatrists: Dr Behague, Dr Cenac and Dr Dublineau, of 21 December 1964; Dr Petit-Dutaillis, Dr Heuyer and Dr Roumajon, of 5 April 1965; Dr Follin and Dr Roumajon, of 13 December 1984; Dr Bornstein, of 24 November 1989; Dr Cayet, of 13 May 1997 ... Observations We have studied the committal order by the Indictment Division and a number of expert reports. In their report dated 13 December 1984 Dr Roumajon and Dr Follin observed in Lucien Léger a mental distortion of reality bordering on the process of paranoia. They noted his pride, his taste for publicity and his need for a sense of self-worth. They referred to the substantial administrative file on Lucien Léger, whose time in custodial establishments had been highly eventful. The two experts emphasised that Lucien Léger was very keen to publish his version of events. This, they concluded, was likely to cause a quite considerable scandal. His release risked causing a significant disturbance to public order, and they believed that it could give rise to fears of a publicity stunt. Dr Boissenin, who had been unable to examine Lucien Léger as the latter had refused, expressed the view in his report of 18 May 1985 based on the file that the prospect of release was risky. On 13 May 1997 Dr Denis Cayet noted in his report that Lucien Léger’s intellectual faculties had remained intact. He observed that, despite a fairly warm appearance, there were still paranoid character traits centred on distrust, a suspicious and quibbling temperament, a general impression of persecution, difficulty in being self-critical, an underlying inflexibility and an inflated opinion of himself, accompanied by a latent sense of manipulation and provocation. Dr Denis Cayet concluded from this that Lucien Léger had scarcely changed since the assessment by Dr Follin and Dr Roumajon, finding him to be just as combative, prone to look for hidden meaning, and seemingly determined to assert in future, by any possible means, what he considered to be his justification and the expression of the truth. In Dr Cayet’s opinion, the question of release was very difficult to assess, in view of the disturbance to public order and the media attention that were likely to ensue. During our examinations, Lucien Léger developed good relations with us. The general impression that emerged seems more balanced than that observed by the previous experts. One expression struck us in particular: ‘I have continued to develop a structure while in prison.’ That does indeed seem to be the case, but it is impossible to assess whether, as things stand, Lucien Léger would be able to maintain this relative stabilisation on being released, if such a decision were taken. Lucien Léger appeared to us to be well informed about the current situation. He demonstrated great skill in pleading his own case, without, moreover, displaying excessive passion or exerting pressure on his interlocutors, so much so that questions may be raised as to the intensity of his current desire to be released. In any event, after thirty-five years of imprisonment, such ambivalence is not surprising. The idea of coming out of a system that is organised, restrictive and frustrating yet reassuring by its very monotony, with particular features such as a certain degree of respect on the part of most of the supervising staff, will undoubtedly cause him to wonder, quite naturally, about life as a free man, a life to which he is no longer accustomed: management of time and space, access to treatment, professional responsibility, social skills ... The version of events he submitted to the three experts is consistent with what he has written and with the version he gave to the previous succession of experts. It is not for us to pass judgment on its credibility. Is it a mythomaniac fabrication? What portion of truth is there in his current version of events? Is it quite simply a defence mechanism? Is it basically a defensive structure verging on the delusional? All these aspects, indeed, may well be interlinked. In any event, a certain progression can be seen from these various documents. In simplified form, it may be broken down into three phases: At first, Lucien Léger appeared to have a highly disordered personality, being prone to mythomaniac fabrication and a somewhat naive boastfulness. Next came the phase of multiple complaints and a defensive organisation bordering on paranoia. Currently there seems to be evidence of a relative softening of his character armour, although it is impossible to judge the impact of ‘protection afforded by prison’ and his reaction on experiencing the ‘void of release’. Our overall impression is therefore more qualified. To sum up, [the applicant] was imprisoned at the age of 27. At the time he appeared to have a disordered personality ... Thirty-five years later, most of his life has been spent in prison. ... Admittedly, a few paranoid personality traits may still be observed, but they are relatively well suppressed. Such traits essentially seem to be a form of character defence against accusations, a psychological survival response in order to ... ‘avoid losing a grip on reality’. He does not show any signs of systematic misjudgment, general over-simplification, deep suspicion, or a sense of current persecution ... at least, as soon as discussion moves away from the case in question. ... As further evidence against the presence of genuine paranoia, it is noticeable that he has maintained a certain sense of humour, a responsiveness to his surroundings and a degree of nuance.” The report concluded: “This assessment therefore focuses entirely on aspects of his personality from a strictly psychiatric and forensic standpoint. And from that standpoint, there do not currently seem to be any formal obstacles to his release.” The report also stated that the previous experts had already found that there did not appear to be a risk of a further offence involving a child and that only the risk of a surge of paranoia and protest had held them back. “That eventuality cannot be totally ruled out, although a number of clinical factors suggest that there has been a relaxation of his reactive faculties. In the event of his release on licence, which is not precluded by the findings of the clinical examination, it is ultimately the continuity, consistency and solidity of the reference points with which he is provided that should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him, at least initially, to receive support through psychological counselling.” The experts reported that the applicant was envisaging receiving such counselling “to reassure everyone and myself, and in case I get depressed”. 23. On 7 February 2000 the judge responsible for the execution of sentences gave the following opinion: “Mr Léger is supported by the Bernhard family, who have regularly come to see him in the visiting room for about twenty years. Mr and Mrs Bernhard have offered to provide [the applicant] with accommodation. They have already welcomed other people in difficulty into their family. In addition, Mr Bernhard runs a company called ‘Le pain de nos ancêtres’. He will employ the prisoner to carry out administrative duties. [The applicant] will not be able to submit any other plans in view of his age (63) and his isolated family situation (as a widower with no children). The assessment recently conducted by a panel of psychiatric experts concludes that his personality has mellowed and that he has maintained his intellectual faculties and his grasp of reality. There does not appear to be any risk of his committing a further criminal offence involving a child. The findings of the clinical examination do not stand in the way of his release on licence. The solidity of the reference points with which he has been provided should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him initially to receive support through psychological counselling, according to the experts. I am forwarding the file on [the applicant] because I consider that after almost 35 years in prison it is appropriate to review of his situation and thus assess the purpose of his sentence. Releasing him on licence would enable him to undergo compulsory medical and psychological treatment and to regain his liberty within a clearly defined framework, unlike an individual pardon.” Following the reform of the post-sentencing system, including the procedure for granting release on licence to long-term prisoners, pursuant to the Law of 15 June 2000, the Minister of Justice refused the application for the applicant’s release and referred his case to the newly established courts. 24. On 16 January 2001 the applicant availed himself of this new judicial procedure. In his application he again stated that friends of his would provide him with accommodation in an outbuilding at their home and with employment in their bakery on his release. 25. On 5 February 2001 the sentence enforcement board issued a unanimous opinion in favour of his release on licence. The applicant’s resettlement and probation officer also expressed an opinion strongly in favour of the application. 26. At the hearing in the Douai Regional Parole Court the advocate-general submitted that the applicant’s application should be refused in view of his “lack of reform” in relation to the acts that had led to his conviction. 27. In a decision of 6 July 2001 the Regional Parole Court, observing that the applicant denied having committed the offence of which he had been convicted, refused his application on the following grounds: “The extremely serious offence which [the applicant] denies having committed was punished by a sentence of life imprisonment. The psychiatric experts who examined [the applicant] (in 1965, 1984, 1989 and most recently 1999) could not rule out his potential dangerousness and the risk of his reoffending, the only means of averting such risks being through psychotherapeutic counselling or support, which by its very nature requires acceptance by the subject. [The applicant’s] position in relation to the offence committed and to the assessment which psychiatrists may make of a person’s mental state rules out any counselling of that kind and precludes a finding that he is making ‘serious efforts to readjust to society’ ... in spite of a coherent resettlement plan in terms of accommodation and employment.” 28. Contending that that decision had required a confession as a new condition for release, the applicant appealed to the National Parole Court. His lawyer observed that the applicant was assured of work and accommodation on his release and that the most recent psychiatric report submitted by a panel of experts on 4 October 1999 had concluded that nothing stood in the way of his release on licence as there no longer appeared to be any risk of his reoffending. Relying on Article 3 of the Convention, the applicant’s lawyer argued that making his client’s release conditional on a confession was tantamount to a slow death sentence. 29. On 12 November 2001 the applicant’s friends attested that their offer of accommodation and employment, which they had repeatedly made over a period of seventeen years, was still valid although their bakery was currently being sold to a private company founded by their children (a separate business registered at their home address). 30. In a judgment of 23 November 2001 the National Parole Court upheld the decision of 6 July 2001 in the following terms: “... the offers of employment and accommodation referred to by the offender in support of his application as evidence of a social resettlement plan are closely interlinked and are currently in doubt as a result of the bankruptcy order against the person who made the offers. Furthermore, the paranoid tendencies still noted by the most recent expert would require psychological counselling, which the prisoner does not envisage undergoing.” 31. Following a proposal to commute the applicant’s sentence, a fresh psychiatric report on him was completed in May 2004. It concluded: “... In our view there has been no particularly perceptible change in the offender’s mental state since the psychiatric assessments carried out in 1999. The character and personality traits observed do not make it possible to conclude with absolute certainty that he will not pose a significant danger in the community, in the psychiatric sense of the term. The forecast cannot be anything but reserved ... as to his ability to readjust. Prospects of change are barely perceptible, seeing that he is increasingly occupied with disparaging the experts’ methods rather than providing evidence to address the question of his plans for the future.” 32. On 25 January 2005 the applicant lodged a further application for release on licence with the Arras Post-sentencing Court (tribunal de l’application des peines). The prison authorities recommended applying a probationary semi-custodial regime. The public prosecutor was opposed to the applicant’s release on licence, contending that such a measure would entail a dual risk for society, that of reoffending and that of psychological decompensation. 33. In a judgment of 1 July 2005, which was upheld on 31 August 2005 by the Post-sentencing Division of the Douai Court of Appeal, the applicant was released on licence with effect from 3 October 2005 until 2 October 2015, on which date the monitoring and supervision arrangements would expire. In addition to the standard requirements which the applicant was to observe (place of residence, contact with the judge responsible for execution of sentences and Prison Service social workers, permission for travel), particular obligations were imposed on him: to submit to medical examinations, treatment or care, including in a hospital environment, and to refrain from contacting the victim’s mother, from distributing any publication or audiovisual work produced or co-produced by himself relating, in whole or in part, to the offence committed, and from making any public comment on the offence. The courts held that the applicant now satisfied the conditions laid down in Article 729 of the CCP and based their decision on three considerations. Firstly, he had a coherent plan in terms of both accommodation (long-standing friends who had already assisted a number of people in difficulty) and voluntary work for the Red Cross, such arrangements being stable and long-term. Furthermore, with regard to his attitude towards the victims, the courts pointed out that the applicant had not made the slightest gesture to them and took refuge behind his alleged innocence, but added: “It nevertheless appears that Mr Léger’s conduct does not, after 41 years of imprisonment, represent an obstacle to his release on licence as it might have done in the past.” Lastly, with regard to the prevention of further offences, they noted that the risk of his reoffending was limited (“a zero risk of reoffending is so rare”) and that the recent expert reports were generally in favour of his release on licence. The first-instance court concluded as follows: “There is no evidence to suggest that a more positive development may be expected in Mr Léger’s case, and there is cause to fear that even if his personality may have ‘mellowed’ according to the experts’ findings in 1999, it will not truly change. Accordingly, refusing his application for release on licence would amount to his virtually permanent exclusion from society, which does not seem justified in view of his resettlement plan and the limited nature of the risk of his reoffending.” 34. Under the legislation in force on the date of the applicant’s conviction, murder carried the death penalty if it was preceded, accompanied or followed by another serious crime, and was punishable by life imprisonment in all other cases. The death penalty was abolished on 9 October 1981. At the time of the applicant’s conviction life sentences were irreducible; the possibility of parole after a specified minimum term was introduced in a law of 22 November 1978. Article 132-23 of the Criminal Code currently provides for a minimum term of eighteen years in the case of life imprisonment. The term may be increased to a maximum of twenty-two years by a special decision of the Assize Court. Under the Law of 1 February 1994, it is now possible to set a minimum term of up to thirty years, or a whole-life term, where a life sentence is imposed for a certain category of offences, namely the murder, whether premeditated or not, of a minor under fifteen years of age preceded or accompanied by rape, torture or acts of barbarity (Articles 221-3 and 221-4 of the Criminal Code). 35. Parole is the longest established means of relaxing the conditions of sentences. It was introduced by the Law of 14 August 1885. The Law initially entrusted decisions on parole to the Minister for the Interior and subsequently, in 1911, to the Minister of Justice, when the latter was assigned responsibility for the Prison Service. The provisions of the 1885 Law were incorporated into the 1958 Code of Criminal Procedure. The Laws of 17 July 1970 and 29 December 1972 removed the requirement of good conduct in prison, making “serious evidence of readjusting to society” the criterion for release on licence, and empowered the judge responsible for the execution of sentences to decide whether to grant a licence to prisoners serving sentences not exceeding three years (this power was extended to sentences not exceeding five years by the Law of 4 January 1993). In the late 1990s the prison authorities were faced with a worrying decline in the number of licences granted, particularly in the case of longer sentences. The powers vested in the Minister of Justice were also strongly contested. In 1999 the Minister of Justice decided to appoint a commission to make proposals for revitalising the parole system. In February 2000 the Study Commission on Parole, chaired by Mr D. Farge, a judge of the Court of Cassation, submitted its report. 36. Law no. 2000-516 of 15 June 2000 on reinforcing the presumption of innocence and victims’ rights included many of the proposals made in the report. It made radical changes to the laws on parole by removing the Minister’s powers and replacing them with an adversarial judicial procedure, and by broadening the conditions for release on licence. 37. The Law of 9 March 2004 on adapting the justice system to trends in crime (which came into force on 1 January 2005) completed the process of transferring post-sentencing powers to the judicial system by establishing the post-sentencing courts as ordinary courts. It lays down provisions on post-sentencing measures based on the principle of adapting sentences to the individual (Article 707 of the Code of Criminal Procedure (CCP)): “... The execution of sentences shall encourage the integration or reintegration of convicted persons into society and the prevention of recidivism, while respecting the interests of society and the rights of victims. To that end, sentences may be adjusted during the course of their execution to take into account changes in the convicted person’s personality and circumstances. The adaptation of sentences to the individual must, wherever possible, allow the gradual return of offenders to liberty and ensure that they are not released without any form of judicial supervision.” 38. Prior to the Law of 15 June 2000 the competent authority was either the judge responsible for the execution of sentences or the Minister of Justice. In both cases the proceedings did not observe the adversarial principle or due process. Since that date, applications for release on licence falling outside the sphere of competence of the judge responsible for the execution of sentences (persons sentenced to more than ten years’ imprisonment with more than three years remaining to be served) have been examined by judicial bodies: at first instance, the regional parole courts, instituted by the above-mentioned Law (see paragraph 27 above) and subsequently replaced by the post-sentencing courts pursuant to the Law of 9 January 2004 (see paragraph 32 above), and, on appeal, the National Parole Court (see paragraph 28 above), now replaced by the Post-sentencing Division of the Court of Appeal (see paragraph 33 above). Since 1 January 2005, cases have been referred to these courts on an application by the convicted person or on the recommendation of the public prosecutor (Article 712-7 of the CCP). The post-sentencing court gives judgment after obtaining the opinion of a Prison Service representative, following adversarial proceedings in which it hears the public prosecutor’s submissions and the observations of the convicted person and, where appropriate, his or her lawyer (ibid.). An appeal against the post-sentencing court’s judgment may be lodged within a ten-day period (Article 712-11 of the CCP). The Post-sentencing Division of the Court of Appeal comprises, in addition to the president and two other judges, an official from an association for the resettlement of offenders and an official from a victim-support association (Article 712-13 of the CCP). An appeal on points of law may be lodged within five days after the judgment of the appellate division has been served (Article 712-15 of the CCP). 39. As regards temporal conditions, Article 729 § 3 of the CCP provides that life prisoners may not apply to be released on licence until a probationary period has elapsed (fifteen years before the Law of 9 January 2004 and eighteen years since). Whereas it was previously impossible to apply for release on licence before the minimum term in relation to the sentence had expired, there is now an exception to this rule: the Law of 9 January 2004 entitles prisoners to ask for the conditions of their sentence to be relaxed even where a minimum term has been set (Articles 720-4 to 7205 of the CCP) if they have shown “serious evidence of readjusting to society”. Lastly, Article 730 of the CCP provides that the situation of convicted persons is reviewed at least once a year if they satisfy the conditions laid down in Article 729 of the CCP. 40. As regards substantive conditions, Article 729 § 1 of the CCP gives a precise indication of the criteria to be taken into account in examining an application for release on licence: “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an educational or vocational training course, or have taken part in a work experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment, or that they have made efforts to compensate their victims.” 41. On 31 December 2001 there were 578 prisoners serving life sentences; during that year, 48 were released on licence. In 2002, out of a total of 554 life prisoners, 40 were released on licence. In 2003 and 2004 the figures were 543 and 538 prisoners and 22 and 15 licences respectively. 42. The relevant passages of the report by the National Assembly commission of inquiry (“France faced with its prisons”, no. 2521, 28 June 2000, p. 122) and the report by the Senate commission of inquiry on detention conditions (“Prisons: a humiliation for the Republic”, no. 449, 28 June 2000 – section on “The lack of prospects for ‘long-term’ prisoners”) read, respectively: “The abolition of the death penalty in 1981 calls for reflection on how to punish the most heinous crimes and on expectations of prison. Depriving people of their liberty for ever means leaving them to die slowly; opposition in principle to the death penalty implies, on the contrary, that society should envisage in due course the reintegration of those who appeared to have been permanently excluded on account of the atrocity or repetition of their crimes ... Abolition of the death penalty must therefore be translated into a demanding attitude on the part of society towards the prison system. It would be deeply hypocritical to abolish the death penalty without changing conditions of detention, without envisaging reintegration into society and without also accepting the risks to society that such reintegration entails ...” “France’s prisons house an increasing number of prisoners serving long sentences. They appear to be deprived of all prospects and, in such conditions, form a population that is extremely difficult for prison staff to manage. The post-sentencing scheme, which is supposed to allow sentences to be adapted to the individual, seems to be experiencing difficulties in its implementation, while there has been a worrying decline in measures to relax the conditions of sentences. ... The current scarcity of such measures accounts for the difficulty in implementing a proper post-sentencing scheme. The commission of inquiry has seen in the Netherlands that offenders have genuine prospects of having their sentences relaxed after a certain period of detention; this encourages them to become fully focused on reintegration. ... While the length of detention is increasing, in particular because sentences are becoming more and more severe, measures to relax the conditions of sentences, notably release on licence, are being used only to a limited extent. ... In enacting the Law on reinforcing the presumption of innocence and victims’ rights, Parliament has decided to carry out a thorough reform of the rules on granting release on licence. The eligibility criteria for such a measure, which were considered overly restrictive, have been broadened. ... The fact remains that the prison system today appears quite helpless in dealing with long-term prisoners.” 43. Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners: “... I. Recommends that the governments of the member states: ... 9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted; 10. grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release; 11. adapt to life sentences the same principles as apply to long-term sentences; 12. ensure that a review, as referred to in 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals; ...” In its general report the sub-committee responsible for drafting the resolution stated: “... it is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.” Beyond this aspect relating to human dignity, the Committee of Ministers pointed out in Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation that parole was one of the most effective means of reducing overcrowding. 44. Following on from Resolution (73) 5 on standard minimum rules for the treatment of prisoners, Recommendation No. R (87) 3 on the European Prison Rules takes the similar United Nations rules and adapts them for use at European level. A revised version of the rules was adopted by the Committee of Ministers on 11 January 2006 (Recommendation Rec(2006)2). Rules 102 (Objective of the regime for sentenced prisoners) and 107 (Release of sentenced prisoners) read: “Objective of the regime for sentenced prisoners 102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” “Release of sentenced prisoners 107.1 Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law-abiding life in the community. 107.2 In the case of those prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society. 107.3 This aim may be achieved by a pre-release programme in prison or by partial or conditional release under supervision combined with effective social support. 107.4 Prison authorities shall work closely with services and agencies that supervise and assist released prisoners to enable all sentenced prisoners to re-establish themselves in the community, in particular with regard to family life and employment. 107.5 Representatives of such social services or agencies shall be afforded all necessary access to the prison and to prisoners to allow them to assist with preparations for release and the planning of after-care programmes.” 45. These rules are to be read alongside Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole) (adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies) and Recommendation Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners (adopted on 9 October 2003 at the 855th meeting of the Ministers’ Deputies). 46. In their presentations of Recommendations Rec(2003)22 and Rec(2003)23 at the ad hoc Conference of Directors of Prison Administration and Probation Service organised by the Council of Europe (Rome, 25-27 November 2004), Ms S. Snacken and Mr P. Tournier gave an overview of legislation on life imprisonment and conditional release in the member States. 47. In her presentation on life sentences Ms Snacken stated: “A majority of Council of Europe Member States make legislative provision for life sentences. The extent to which such sentences can be, and are in fact imposed, varies. Life sentences do not necessarily imply imprisonment for the remainder of natural life. Most countries make provision for a review of life sentences with the possibility of granting release from prison. Some countries impose a very long period of mandatory detention for lifers, e.g. 30 years in Estonia, 26 years in Latvia, 25 years in Poland, Slovakia and Moldova, 20 years in the Czech Republic, Albania, Romania and Turkey, while in others release is possible after 10 years, e.g. in Belgium, or 15 years in France, Germany, Luxembourg and Switzerland ... Probably the most wide-ranging provisions for the use of life imprisonment are to be found in England and Wales. There, a life sentence is mandatory for murder and a discretionary life imprisonment can be imposed for other serious offences against the person. With mandatory life sentences, a tariff giving the earliest date at which conditional release may be granted is set. ‘Whole life tariffs’ mean that the imprisonment cannot be exhausted during the natural life of the prisoner. This tariff can be reviewed after 25 years. In addition, since 1997, an offender found guilty for the second time of serious sexual or violent crimes automatically receives a life sentence unless there are exceptional reasons for not imposing it (automatic life sentence). By contrast, five European countries, Croatia, Norway, Portugal, Slovenia and Spain, make no legislative provision for life imprisonment. In Croatia, the most severe sanction is a sentence from 20 to 40 years that may only be imposed exceptionally. Conditional release may be granted after one-half, exceptionally one-third, of the sentence has been served. Three persons were sentenced to exceptionally long-term imprisonment between 1998 and 2001. In Norway, the most severe sanction is a determinate sentence of imprisonment for 21 years. Conditional release is possible after 12 years has been served. In Portugal, the maximum prison sentence is for 25 years, exceptionally for 30 years. Slovenian legislation provides for a maximum of 30 years but such a sentence has never been imposed to date. Prisoners serving more than 15 years may be conditionally released after three-quarters of the sentence has been served. In Spain the maximum sentence is imprisonment for 30 years. In Iceland, the legislation provides for life sentences but no such sentence has been imposed since 1940.” Ms Snacken observed that there had been an increase in the number of long-term prisoners – those serving sentences of five years or more, according to the definition given in Rec(2003)23 – as a result of changes in crime policies. In western Europe this increase was linked to the growing number of convicted persons and the decreasing number of prisoners being released. These phenomena were combined with tougher policies on certain crimes in respect of which conditional release was granted under very restrictive conditions (for example, sexual, violent or drug-related offences). In central and eastern Europe the considerable number of long-term and life-sentence prisoners was attributable not only to the imposition of long sentences but also to the abolition of the death penalty. 48. As regards conditional release – “one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community” (preamble to Rec(2003)22) – the report by Mr Tournier compared the three models in use in Europe: the discretionary system, the release system and mixed systems in relation to shorter sentences. The discretionary release system was found in most European countries applying the principle of parole, including France. The system was related to the concept of individualisation (or personalisation), since by its very nature it excluded any possibility of automatic release. Mr Tournier observed that the main drawback of the discretionary system was the lack of explicit criteria for granting conditional release, producing the following effects: “– disparities between decisions where several bodies are involved in deciding on conditional release (which is usually the case except in countries with a small number of inhabitants); – unreliability of assessments of the likelihood of reoffending where performed without specialist scientific tools; – uncertainty as to the date of release renders it difficult to make practical arrangements in advance; – the above factors may undermine confidence in the system and reduce prisoners’ motivation to cooperate in observance of the conditions and requirements of supervision.” The mandatory release system had existed in Sweden since 1998. Prisoners serving a fixed term of imprisonment had to be conditionally released after two-thirds of the sentence. The focus in this system was on personalisation of supervision (control and assistance measures) and on the conditions to be satisfied by the prisoner after release. The mandatory release system was above all intended to be egalitarian. According to the report, it was far from commanding unanimous approval and might be reconsidered by Parliament. The mixed system combined the discretionary system for long sentences with the mandatory system for shorter ones. It was fundamentally pragmatic. An example was the system applied in England and Wales. In any event, Recommendation Rec(2003)22 did not favour any one system over another and simply reaffirmed “the Council of Europe’s unambiguous support for the principle of conditional release – a planned, assisted and supervised reintegration in the community”. 49. On 15 February 2006 the Council of Europe’s Commissioner for Human Rights made public a report (CommDH (2006)2) on the effective respect for human rights in France. Under point (d) (“Need to put in place a rehabilitation policy”) of Part IV, concerning the prison system, the Commissioner noted: “... the public authorities have the specific responsibility of looking to each new prisoner’s future by clearly defining the main function of the prison sentence and adapting it so that every means is employed to guide every new arrival towards successful rehabilitation. This means above all preventing reoffending.”
| 0
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train
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001-61054
|
ENG
|
AUT
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CHAMBER
| 2,003
|
CASE OF SYLVESTER v. AUSTRIA
| 3
|
Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
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Christos Rozakis
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10. The applicants were born in 1953 and 1994 respectively. The first applicant lives in West Bloomfield (Michigan) and the second applicant lives in Graz. 11. The first applicant married an Austrian citizen in April 1994. The marriage was concluded in the United States of America, where the couple set up their common residence. On 11 September 1994 their daughter, the second applicant, was born. The family's last common residence was in Michigan. Under the law of the State of Michigan the parents had joint custody over the second applicant. 12. On 30 October 1995 the first applicant's wife, without obtaining his consent, left the United States with the second applicant and took her to Austria. 13. On 31 October 1995 the first applicant, relying on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), requested the Austrian courts to order the second applicant's return. In these and the subsequent proceedings the first applicant was represented by counsel. 14. On 3 November 1995 the second applicant's mother filed an application with the Graz District Civil Court (Bezirksgericht für Zivilrechtssachen) for the award of sole custody over the second applicant. 15. On 20 December 1995 the Graz District Civil Court, after having heard evidence from the first applicant and his wife and the oral statement of an expert in child psychology, Dr. K., ordered that the second applicant be returned to the first applicant at her former place of residence in Michigan. 16. The court, noting that under Michigan law the first applicant and his wife had joint custody of their daughter, found that the first applicant's wife had wrongfully removed the child within the meaning of Article 3 of the Hague Convention. Moreover, it dismissed the mother's claim that the child's return would entail a grave risk of physical or psychological harm within the meaning of Article 13 (b) of the Hague Convention. It considered that the second applicant's return could not be hindered by the fact that the mother was her main person of reference and that returning could cause a massive trauma affecting her development. Otherwise, mothers of small children could easily circumvent the aim of the Hague Convention. As to the mother's allegation that the first applicant regularly masturbated in the presence of the child, the court referred to the expert's statement that such conduct would, in view of the child's tender age, not cause immediate harm. The fact that such conduct, if proved, could in the long run be harmful to the child would have to be assessed in the custody proceedings. Finally, it held that the mother could be expected to return with the second applicant to the United States. 17. On 19 January 1996 the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed an appeal by the second applicant's mother. 18. The Regional Court confirmed the District Court's assessment as regards the question whether the second applicant's return would entail a grave risk of physical or psychological harm within the meaning of Article 13 (b) of the Hague Convention. It noted that the onus of proof was on the person opposing the return, i.e. the second applicant's mother. Further, it noted that the statement of the expert in child psychology had denied that there was any such risk. That statement had been made on the assumption that the mother's allegations were true. However, the Regional Court emphasised that the truth of these allegations had not been proved and that the District Court had had the benefit of hearing the first applicant and, thus, of forming a personal impression of him. 19. On 27 February 1996 the Supreme Court (Oberster Gerichtshof) dismissed a further appeal by the second applicant's mother. 20. On 27 February 1996 the first applicant filed an application for enforcement of the return order of 20 December 1995. 21. Meanwhile, the first applicant had started divorce proceedings before the Oakland Circuit Court (Michigan). By a decision of 16 April 1996, the court pronounced a default judgment of divorce. Further, it awarded the first applicant sole custody of the second applicant and ordered that the second applicant should reside with the first applicant in the event of her return. 22. On 7 May 1996 the file arrived again at the Graz District Civil Court. 23. On 8 May 1996 the Graz District Civil Court ordered the enforcement of the return order under section 19 (1) of the Non-Contentious Proceedings Act (Ausserstreitgesetz). It noted that it was necessary to order coercive measures as there were indications that the mother was obstructing the child's return. She had given an interview to a local newspaper according to which she frequently changed her whereabouts and was determined not to let the child be taken away from her. 24. In the early hours of 10 May 1996, an attempt to enforce the return order was made in accordance with the terms set out in the order of 8 May. A bailiff, assisted by a police officer, a locksmith and a representative of the Youth Welfare Office, appeared at the house where the second applicant and her mother were living. The first applicant was also present. A search carried out in the house, necessitating the use of force against the second applicant's mother and the forceful opening of several doors, remained unsuccessful. On the occasion of the enforcement attempt the Supreme Court's decision of 27 February 1996 and the enforcement order of 8 May 1996 were served on the second applicant's mother. 25. On 15 May 1996 the second applicant's mother appealed against the decision of 8 May 1996 and again filed an application for the award of sole custody of the second applicant. 26. On 29 May 1996 the United States District Court, Eastern District of Michigan, issued an arrest warrant against the second applicant's mother on suspicion of international parental kidnapping. 27. On 18 June 1996 the first applicant made a further application for enforcement of the return order. 28. By a decision of 25 June 1996 the Graz District Civil Court, at the request of the second applicant's mother, transferred jurisdiction to the Leibnitz District Court, in the judicial district of which the second applicant had purportedly established her residence. 29. On 29 August 1996 the Graz Regional Civil Court granted an appeal by the first applicant against the transfer of jurisdiction and, on the mother's appeal, quashed the Graz District Civil Court's enforcement order of 8 May 1996 and referred the case back to it. 30. Referring to section 19 (1) of the Non-Contentious Proceedings Act, the court found that, in the enforcement proceedings, the child's well-being had to be taken into account in so far as a change in the situation had occurred since the issue of the return order and the taking of coercive measures. However, under Article 13 of the Hague Convention, this question was not to be examined by the court of its own motion but only upon an application by the person opposing the return. Following the service of the enforcement order of 8 May 1996 the mother had submitted, in particular, that she was the second applicant's main person of reference. Because of the lapse of time, the second applicant no longer recognised her father when she was shown his picture. By being taken away from her mother the child would suffer irreparable harm. The court therefore ordered the District Court to examine whether the situation had changed since the return order of 20 December 1995. It also ordered the District Court to obtain the opinion of an expert child psychologist on the question whether the child's return would entail a grave risk of physical or psychological harm and whether coercive measures were compatible with the interests of the child's well-being. 31. Between May and December 1996 numerous letters were exchanged between the United States Department of State and the Austrian Ministry of Justice, acting as their respective States' Central Authorities under the Hague Convention. The United States Department of State repeatedly requested information as to which steps had been taken to locate the second applicant and to enforce the return order of 20 December 1995. The Austrian Ministry of Justice replied that the first applicant was represented by counsel in the Austrian proceedings and that it was up to him to take all necessary steps to obtain the enforcement of the return order. It also pointed out that there were only rather limited possibilities to locate a child who had disappeared after a return order had been made. 32. On 15 October 1996 the Supreme Court dismissed an appeal by the first applicant and set aside the enforcement order of 8 May 1996. It noted in particular that the notion of the child's well-being was central to the entire proceedings. When ordering coercive measures under section 19 (1) of the Non-Contentious Proceedings Act, the court had to take the interests of the child's well-being into account, despite the fact that the return order was final, if the relevant situation had changed in the meantime. Having regard to the aims of the Hague Convention, a refusal of coercive measures was only justified if the child's return would entail a grave risk of physical or psychological harm for the child within the meaning of Article 13 (b) of the Hague Convention. 33. The Supreme Court acknowledged that particularly difficult problems arose in cases in which the abductor had created the situation in which the return represented a serious danger to the child's well-being. Where the abductor of a small child was the latter's main person of reference and refused to return with the child, a serious threat to the child's well-being might arise. Nevertheless, Article 13 (b) of the Hague Convention made clear that the child's well-being took priority over the Convention's general aim of preventing child abduction. Reasons of general deterrence or, in other words, the aim of showing that child abduction was not worthwhile could not justify exposing a child to a grave risk of physical or psychological harm. 34. In the present case, the mother had claimed that the child, who was now more than two years old, had become alienated from the father. The child's abrupt removal from her main person of reference and her return to the United States would cause her irreparable harm. The Supreme Court emphasised that the particularity of the case lay in the fact that, in the main proceedings, the courts had denied that there was any risk of psychological harm (as a result of the alleged sexual behaviour of the first applicant) exclusively on account of the child's tender age. In these circumstances, it could not be excluded that the child, who was now more than two years old and had been living solely with her mother for more than a year, would suffer grave psychological harm in the event of a return to her father. Thus, the Regional Court had rightly found that the question whether the return order could be enforced by coercive measures needed further examination, including an opinion by an expert in child psychology. It might also prove necessary to assess whether or not the mother's allegations were at all true. 35. In accordance with the Supreme Court's decision, the case was referred back to the Graz District Civil Court. 36. On 23 April 1997 the Oakland Circuit Court issued a “safe harbour” order, valid until 21 October 1997, which provided, inter alia, that pending determination of custody in expedited proceedings, the first applicant would not exercise his right to sole custody of the child; the second applicant would live with her mother away from the first applicant, who would undertake to cover their living expenses; and the arrest warrant against the mother would be set aside as soon as she and the second applicant boarded a direct flight to Michigan. 37. On 29 April 1997 the Graz District Civil Court dismissed an application by the first applicant for enforcement of the return order. 38. In the continued proceedings, the expert on child psychology, Dr. K., had submitted his opinion on 26 March 1997 and the first applicant had been given an opportunity to comment. On the basis of the expert opinion, the court found that since the second applicant's birth her mother had been her main person of reference. However, the first applicant had had regular contact with her until 30 October 1995, the date of her abduction. Thereafter they had had no contact at all. Since the return order had been made, a year and four months had elapsed and the first applicant had become a complete stranger to the second applicant. Given that a young child needed a stable relationship with the main person of reference at least until the age of six, the second applicant's removal from her main person of reference, namely her mother, would expose her to serious psychological harm. Having regard to the considerable lapse of time since the return order had been made on 20 December 1995, the District Court found that there had been a change in the relevant circumstances, in that the second applicant had lost all contact with the first applicant while her ties with her mother and her maternal grandparents had become ever closer. Consequently, her return would expose her to serious psychological harm. 39. The court noted the first applicant's statement of 28 April 1997 and his offer within the meaning of the “safe harbour” case-law but considered that this offer did not guarantee that the second applicant's relationship with her main person of reference would be preserved in the long run. As this relationship was indispensable for her well-being, the application for enforcement of the return order had to be dismissed. 40. On 28 May 1997 the Graz Regional Civil Court dismissed an appeal by the first applicant. It shared the District Court's view that the situation had changed fundamentally since the issuing of the return order. At that time the second applicant had been much younger and, given the short time which had elapsed between her abduction and the issuing of the return order, had not yet lost contact with the first applicant. A return of the second applicant accompanied by her mother could not be envisaged either. Apart from the reasons adduced by the District Court, the mother would face criminal prosecution in the United States and the child would, accordingly, be taken away from her. 41. On 2, 3 and 4 June 1997 the first applicant was granted a couple of hours of supervised access to the second applicant. 42. On 9 September 1997 the Supreme Court dismissed a further appeal by the first applicant on the ground that it did not raise any important legal issues. 43. On 29 December 1997 the second applicant's mother was awarded sole custody of the second applicant by the Graz District Civil Court. It noted that Article 16 of the Hague Convention, which prohibited the State to which the child has been abducted from taking a decision on custody while proceedings for the child's return were pending, no longer applied, as the decision not to enforce the return order had become final. Following appeal proceedings the judgment became final on 31 March 1998. 44. The preamble of the Convention, which has been incorporated into Austrian law, includes the following statement as to its purpose: “ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...” 45. The object of such a return is that, following the restoration of the status quo, the conflict between the custodian and the person who has removed or retained the child can be resolved in the State where the child is habitually resident. This principle is based on the consideration that the courts of the State of habitual residence are usually best placed to take custody decisions. “The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures (a) To discover the whereabouts of a child who has been wrongfully removed or retained; (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) To exchange, where desirable, information relating to the social background of the child; (e) To provide information of a general character as to the law of their State in connection with the application of the Convention; (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; (g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay ...” “Where a child has been wrongfully removed or retained in terms of Article 3 ..., the authority concerned shall order the return of the child forthwith.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that ... (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. ...” 46. Section 19 (1) provides that adequate coercive measures are to be taken without any further proceedings against a party refusing to comply with court orders. 47. According to the Supreme Court's case-law the courts have, in any proceedings relating to the removal of a child, the courts have to take the interests of the child's well-being into account when assessing whether coercive measures are to be ordered and, if so, which ones are to be applied.
| 1
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train
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001-112430
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ENG
|
TUR
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CHAMBER
| 2,012
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CASE OF ERGÜN v. TURKEY
| 4
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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)
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András Sajó;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
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3. The applicant, born in 1967, is a lawyer and lives in Istanbul. 4. At approximately 12 noon on 16 September 2000, while attempting to participate in a demonstration in the form of “a press conference” held in Taksim, Istanbul, by members of the Contemporary Lawyers’ Association, the applicant was arrested, with some fifty others. The applicant alleged that the large number of police officers on duty at the site of the demonstration, who were wearing special uniforms, had used disproportionate force to disperse the crowd and arrest the potential demonstrators. He claimed in particular that the police had kicked and punched him, beaten him with a stick, and sprayed tear gas in his face inside the police bus following his arrest. The Government, on the other hand, argued that the demonstrators had resisted the police and had refused to disperse despite numerous warnings. 5. The applicant was subsequently taken to the police station, along with the others who had been arrested, apparently for an identity check. 6. At 3.30 p.m. on the same day the applicant was taken to the Beyoğlu branch of the Forensic Medicine Institute for a medical examination. The doctor who examined the applicant reported bruising on his inner left knee, left ankle and inner left arm. He also noted that the injuries would render the applicant unfit for work for three days. 7. The applicant was released from police custody after the medical examination at the Forensic Medicine Institute. 8. On 18 September 2000 the applicant sought a medical examination at the Istanbul branch of the Human Rights Foundation of Turkey, in order to have the bruises which had developed on his body after his arrest recorded by an independent medical expert. The two doctors who examined the applicant noted the following on his body: a 4 x 6 cm yellowgreen bruise on the left part of the chest, a 2 x 1 cm yellow-green bruise on the left buttock, a spotted haemorrhage measuring 1.5 x 10 cm behind the left knee, a bleeding yellow-green bruise accompanied by a spotted haemorrhage measuring 3 x 3 cm on the left calf, a 4 x 0.5 cm graze on the left ankle, a 0.3 x 0.6 cm graze behind the left ankle, a scabbed wound 0.5 cm in diameter, with an area of hyperaemia 0.5 cm in width around the wound, on the right ankle. The applicant stated to the doctors that he had been kicked and punched and beaten with sticks by the police and had had tear gas sprayed in his face. He further stated that he had been coughing and had a burning sensation in his throat on account of the tear gas. The doctors reported that the injuries on the applicant’s body and his complaints regarding his throat matched his account of events, but they did not note any physical findings indicating if and how the applicant had been affected by the tear gas. 9. On 18 September 2000 twenty-seven members of the Contemporary Lawyers’ Association, including the applicant, lodged a criminal complaint with the Beyoğlu public prosecutor against the Istanbul governor, the deputy chief of police of Istanbul and the police officers on duty at the time of their demonstration. They alleged that they had all been illtreated by the police during their arrest, on the orders of the governor and the deputy chief of police. 10. It appears that on the same date the Beyoğlu public prosecutor took statements from only four of the complainants. The applicant was not summoned for a statement. 11. On 26 September 2000 the Beyoğlu public prosecutor requested the Ministry of the Interior to decide whether it would grant authorisation for prosecution of the governor and the deputy chief of police. There is no further information in the case file in relation to this request. 12. On an unspecified date the public prosecutor further requested the Istanbul governor to decide whether authorisation would be granted to prosecute the six police officers who had been identified from various photographs and video footage as having carried out the complainants’ arrests. Only five of the lawyers who had lodged the criminal complaint on 18 September 2000 were indicated as complainants, not including the applicant. 13. On 21 December 2000 the Istanbul governor decided not to grant authorisation for the prosecution of the six police officers, due to lack of sufficient evidence in support of the allegations of ill-treatment. The governor indicated in his decision that despite warnings by the police the demonstrators, who had gathered illegally without obtaining permission, had refused to disperse, and the police had therefore been obliged to use some degree of force to disperse them and restore public order. 14. On an unspecified date two of the complainants objected to the decision of 21 December 2000. 15. On 17 April 2001 the Istanbul Regional Administrative Court upheld the objection, holding that the evidence in the case file was sufficiently strong to require an investigation. It therefore decided to grant authorisation for the prosecution of the relevant police officers. 16. On 11 May 2001 the Beyoğlu public prosecutor filed a bill of indictment with the Beyoğlu Criminal Court against the six police officers in question, charging them with ill-treatment under Article 245 of the former Criminal Code. Only five of the twenty-seven lawyers who had filed the complaint of 18 September 2000 were indicated as complainants in the bill of indictment, and they did not include the applicant. 17. On 14 January 2003 the applicant lodged a petition with the Beyoğlu public prosecutor’s office requesting information as to the outcome of the investigation of his complaints. 18. The public prosecutor informed the applicant on the same date that criminal proceedings had been brought against four female and two male police officers (case no. 2001/1035 E.) following complaints by five lawyers from the Contemporary Lawyers’ Association. The public prosecutor did not give any information as to why no action had been taken on his complaints. 19. On 4 February 2003 the applicant made an application to the Beyoğlu Criminal Court, requesting leave to join the criminal proceedings which were pending against the six police officers as a civil party, in the absence of any separate proceedings in connection with his complaints. 20. Also on 4 February 2003 the Beyoğlu Criminal Court dismissed the applicant’s request to join the proceedings, as his name was not included in the bill of indictment as a victim. 21. On 6 March 2003 the Beyoğlu public prosecutor took a statement from the applicant for the first time, in relation to the complaints he had made on 18 September 2000. In his statement, the applicant complained that the relevant authorities had failed to take any action on his complaints for two and a half years, and requested the identification and punishment of the officers responsible for this delay. 22. On 10 March 2003 the Beyoğlu public prosecutor filed a further bill of indictment with the Beyoğlu Criminal Court against the same six police officers previously indicted under case no. 2001/1035 E., this time charging them with inflicting illtreatment on the applicant. The public prosecutor relied on the findings in the medical reports of 16 and 18 September 2000 as evidence of ill-treatment. 23. On an unspecified date the applicant’s case was joined to case no. 2001/1035 E. 24. At a hearing held on 1 July 2003 the applicant stated that he had not been given an opportunity by the public prosecutor to identify the police officers who had illtreated him. He stated that none of the four female officers charged in respect of his complaints had used any force against him. He was not 100% sure about the remaining two male officers, no confrontation procedure having taken place with the latter or with any witnesses. 25. At the next hearing, held on 23 October 2003, only one of the defendant male officers was present, namely G.F.K. The applicant stated that G.F.K. resembled one of the police officers who had kicked him during the demonstration, but he could not be 100% certain after so much time had passed. 26. On 28 September 2004 the Beyoğlu Criminal Court acquitted the police officers of the charges of ill-treatment of the applicant, as the applicant could not identify them as the perpetrators. The court held in relation to one of the male defendants, A.C., that he had been on leave on the date of the demonstration. 27. On 17 November 2004 the applicant appealed to the Court of Cassation. He stated that he had informed the first-instance court from the very beginning that the four female defendants had not used any force against him. Moreover, at the hearing held on 23 October 2003, he had been able to identify one of the male defendants, G.F.K., albeit with some doubts, which should nevertheless have been sufficient to convict G.F.K. when combined with other evidence. As regards the defendant A.C., he protested about how it could happen that a police officer initially identified by the authorities as having been on duty could later be found to have been on leave on the relevant day. Lastly, he complained that the public prosecutor had made no efforts to duly identify the officers who had illtreated him, or to collect the relevant evidence in a timely manner, in order to bring about their punishment. The additional indictment prepared in his respect three years after the incident was, therefore, no more than a mere formality. 28. On 6 November 2006 the Court of Cassation upheld the judgment of 28 September 2004 in so far as it concerned the applicant, without responding to any of his objections. 29. In the meantime, on 17 November 2000, the Beyoğlu public prosecutor had brought charges against demonstrators who had been arrested on 16 September 2000, including the applicant, for violation of the Meetings and Demonstration Marches Act (Law no. 2911). 30. In a judgment dated 28 March 2001, the Beyoğlu Criminal Court acquitted the applicant and his co-accused of the above-mentioned charges, finding that the demonstrators had exercised their democratic rights without committing any offences. The first-instance court also noted that the police had learned in advance that the press conference was being planned and had therefore taken the necessary security measures. 31. On 4 June 2001 the applicant brought a case before the Eyüp Assize Court seeking compensation under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained, (“the Unlawful Detention (Compensation) Act”) in relation to his arrest and detention for approximately five hours on 16 September 2000. 32. On 21 October 2002 the Eyüp Assize Court rejected the applicant’s request. It held that the applicant had been taken to the police station merely to determine his identity, without being taken into detention, and that he had been released as soon as he had had a medical examination. He was therefore not entitled to seek compensation under Law no. 466. 33. On 25 February 2005 the Court of Cassation upheld the judgment of the Eyüp Assize Court. The Court of Cassation’s decision was served on the applicant on 11 April 2005.
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train
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001-108168
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ENG
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GBR
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CHAMBER
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CASE OF HANIF AND KHAN v. THE UNITED KINGDOM
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Violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient
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David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
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6. The first applicant was born in 1967 and at the time of the lodging of his application was detained in HM Prison Moorlands. He was expected to be released on 1 September 2010. The second applicant was born in 1978 and is currently detained in HM Prison Dovegate. 7. The first applicant is a taxi driver. On 31 August 2006, he drove from Sheffield to Luton. On his way back to Sheffield from Luton, he was arrested in the context of a police investigation into the supply of unlawful drugs. He had been followed on his journey in both directions by police officers. Six kilograms of heroin were found in the boot of his car. The case against him was that he had collected the consignment of drugs in Luton and was transporting it back to Sheffield when he was arrested. 8. The first applicant’s defence was that he did not know anything about the drugs found in his car. He said that he had taken a passenger named Paul with him on the journey from Sheffield to Luton at the request of Mr Younas, one of the alleged members of the conspiracy to supply unlawful drugs. Paul had used the first applicant’s mobile telephone while in the car and the calls to another of the individuals in the alleged conspiracy, Mr Rasul, had been made by Paul. Calls to Mr Younas and a third member of the alleged conspiracy, Mr N. Khan, were made by the first applicant: calls to Mr Younas were to check directions and calls to Mr N. Khan related to a dispute about an unpaid taxi fare. Paul had left the car shortly after arrival in Luton. The first applicant argued that he must have left the drugs in the car when he left the vehicle. 9. In August 2006, the second applicant was charged with conspiracy to supply heroin. The case against him was that he was involved in making arrangements for the payment of the drugs to be transported from Luton to Sheffield. The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators. Cash amounting to GBP 18,955 was found in the second applicant’s cellar. The money had been in contact with heroin. 10. The second applicant’s defence was that he was a cousin of Mr N. Khan and a friend of Mr Younas and was therefore in close contact with them. However, he had not taken part in the conspiracy. His telephone contacts with them on the relevant days had been innocent. The cash found at his home derived partly from the sale of a car and partly from former heroin dealings for which he had been convicted in 2003. 11. The applicants were subsequently tried together on charges of conspiracy to supply heroin. The trial commenced on 3 January 2007 and the jury was sworn. On the following day the court heard evidence from the police officers who had followed the first applicant from Sheffield to Luton and back, one of whom was M.B. The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that no-one had alighted from the vehicle in Luton. 12. During the evidence of M.B., the first of the police officers to testify, one of the jurors, A.T., sent a note to the judge indicating that he, A.T., was a serving police officer and that he knew M.B., although he had not worked with him for two years. The judge read the note to counsel and agreed with them a series of questions to be put to A.T. The judge then questioned A.T. in the absence of the other jurors but in the presence of the applicants. A.T. confirmed that he was a police dog handler near Doncaster, some distance from Sheffield. He said that he had known M.B. for approximately ten years and that on three occasions they had worked on the same incident, although not in the same team. They had never worked at the same station and did not know each other socially. He was asked if he knew anything about M.B. which would affect his ability to judge M.B.’s evidence impartially or his ability to judge the case in accordance with the oath he had sworn. He replied that he did not. 13. The defence made an application to the judge to discharge A.T. on the grounds that there was a conflict of evidence between the police and the first applicant which the jury would have to resolve, that it would therefore be unfair for the jury to include a police officer and that justice would not be seen to be done if the police officer continued to serve on the jury. They also argued that there was a risk that A.T. knew of the second applicant’s previous conviction for dealing in heroin. On 4 January 2007, setting out his decision on the application, the judge concluded that: “Jurors are entitled, when called, to try the cases before them, and are not to be asked to withdraw ... unless there is a proper reason, one of which clearly concerns prejudice to an accused, or the appearance of any prejudice. I am wholly satisfied in this case that there is no prejudice to either defendant if this juror remains, nor indeed, if anyone were to hear his questioning, any appearance of unfairness. This is a juror who honestly and frankly has brought to the court’s attention his knowledge of a witness and, in answering the questions posed to him as he has, has clearly indicated that his knowledge is slight and, no matter what the extent of his knowledge, not something that will in any way adversely affect his judgment of this particular case. ... I appreciate that there is a conflict between the witness and the defendant, and that that is a conflict of some importance within the case but, in my judgment, this juror is well capable of dealing with the matter in a proper and impartial way.” 14. The application to discharge A.T. was rejected. A.T. subsequently became the jury foreman. 15. In the trial proceedings before the court, the prosecution relied on the fact that the other co-accused in the conspiracy had pleaded guilty in order to establish the existence of a conspiracy. They also relied on evidence of the second applicant’s bad character and previous conviction for dealing in heroin. 16. The first applicant, in his defence, called a witness who testified that she had seen him leave Sheffield at the start of his journey with a passenger in the car. 17. On 12 January 2007, the applicants were convicted of conspiracy to supply heroin. The first applicant was sentenced to eight years’ imprisonment. The second applicant was sentenced to 17 years’ imprisonment. This was to take place consecutively to a period of two years and five months’ imprisonment, the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence. 18. After the trial, the applicants’ counsel realised that A.T. had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for the second applicant had appeared. 19. The applicants applied for leave to appeal against their convictions on the ground that the presence of the police officer on the jury, and in particular his role as jury foreman, led to an appearance of bias in the trial proceedings. Leave to appeal was granted and the appeal was heard on 29 January 2008. 20. Handing down its judgment on 14 March 2008, the Court of Appeal noted: “10. Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions: i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so ii) Would the fair minded observer consider that this may have affected the outcome of the trial? If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.” 21. The court referred to the recent change in the law which had allowed persons previously ineligible for jury duty, including police officers, to sit on juries (see paragraphs 38-42 below). However, it observed that the change had 22. After considering the judgment of the House of Lords in Abdroikof and Others (see paragraphs 43-54 below) which concerned the compatibility of police officer jurors with Article 6 of the Convention, the court concluded on the general issue of bias: “... the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror’s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.” 23. As to the applicants’ appeals, the court emphasised that there was no question of the juror having any connection with those responsible for the prosecution of the case. The investigation had been carried out by the Serious Organised Crime Agency without the involvement of local police forces. The prosecution was conducted by the Organised Crime Division of the Crown Prosecution Central Casework Directorate without contact with the local Crown Prosecution Service branch. 24. The court set out the starting point for consideration of the applicants’ appeals as follows: “If one starts, as one must, from the premise that police officers are not, by reason simply of their occupations, considered to be biased in favour of the prosecution, we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged, gives rise, of itself, to an appearance of bias on the part of the police officer. Most police officers are likely to have had experience of most of the common types of criminal offence, not least drug dealing. We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias.” 25. As regards the first applicant, the court noted that three police officers, one of whom was M.B., gave evidence of keeping him under observation at different stages of his journey from Sheffield to Luton and that each of the officers said that he saw no passenger in the car. The court further noted that the challenge to the officers’ evidence was on the basis that it was inaccurate and that it was not suggested to the witnesses in cross-examination that their evidence was untruthful. It further observed that such a suggestion would not have been likely to be fruitful as the officers’ accounts were no doubt supported by contemporary records made at a time when they would have attached no significance to the fact that the first applicant had no passenger in the car. As to the witness called by the first applicant who spoke to glimpsing a passenger in the back of his car as it passed her in Sheffield, the court commented that she was not a witness of good character and that it was the prosecution case that she was not to be believed. It continued: “54. Hanif’s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical. The mobile phone records showed that, if his explanation was true, his phone must have been being passed to and fro between himself and his passenger like a yo-yo. Equally unlikely was the suggestion that the conspirators, Younas and [N. Khan], would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery. Finally it is hard to believe that, if his passenger had been carrying a valuable consignment of heroin, he would have left it in the back of the taxi. 55. Quite apart from these matters, Hanif’s evidence had significant inconsistencies with earlier statements made to the police. It was the prosecution’s case that his evidence had been tailored to accommodate the police evidence. 56. In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif’s car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to [M.B.] who was known to him. Thus the question is answered in the negative and the second question does not arise.” 26. The court accordingly concluded that the first applicant’s conviction was not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with M.B. and dismissed the first applicant’s appeal against conviction. 27. The court also rejected the second applicant’s contention that, because of A.T.’s involvement in drugs operations, he might have become aware of the second applicant’s previous conviction for dealing in heroin, noting: “49. ... there was nothing to support this surmise. Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge, as he did his knowledge of [M.B.]. Furthermore, Bakish Alla Khan’s previous conviction was placed before the jury.” 28. The court observed that at trial there was no challenge to the prosecution evidence in respect of the second applicant and that no police witnesses were called. The issue was whether the jury was satisfied that the explanations advanced by the second applicant for the undisputed evidence were untrue and that this evidence demonstrated his guilt. The Court of Appeal considered that the jury’s verdict showed that it was satisfied of this. It therefore concluded that the allegation of jury bias made on behalf of the second applicant was not made out and dismissed his appeal against conviction. 29. The Court of Appeal made the following concluding remarks: “It is undesirable that the apprehension of the jury bias should lead to appeals such as those with which this court has been concerned. It is particularly undesirable if such appeals lead to the quashing of convictions so that re-trials have to take place. In order to avoid this it is desirable that any risk of jury bias, or of unfairness as a result of partiality to witnesses, should be identified before the trial begins. If such a risk may arise, the juror should be stood down. We considered attempting to give guidance in this judgment as to the steps that should be taken to ensure that the risk of jury bias does not occur. However, it seems to us that these will involve instructions to be given by the police, prosecuting and prison authorities to their employees coupled with guidance to court officials. It would be ambitious to attempt to formulate all of this in a judgment without discussion with those involved. There is one matter, however, that should receive attention without any delay. It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is, or has been, a police officer or a member of the prosecuting authority, or is a serving prison officer. Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories, so that this information can be conveyed to the judge. We invite all of these authorities and Her Majesty’s Court Service to consider the implications of this judgment and to issue such directions as they consider appropriate.” 30. The second applicant’s appeal against sentence was successful and the sentence of 17 years was reduced to 15 years. 31. The applicants were refused leave to appeal to the House of Lords on 17 June 2008. 32. Pursuant to section 1 of the Juries Act 1974 as amended (“the 1974 Act”), all persons aged eighteen to seventy who are registered as parliamentary or local electors and have been ordinarily resident in the United Kingdom for a period of at least five years since the age of thirteen are eligible for jury service and are therefore under a duty to attend court if summoned. 33. Certain individuals are ineligible for jury duty, including for example those who suffer from a mental disorder. Other narrowly defined groups, although eligible for jury duty, are entitled to be excused, such as persons who have served as jurors in the recent past and full-time members of the armed forces whose absence from duty would be prejudicial to the efficiency of the service. 34. The trial judge has the power to question jurors in order to establish that they are qualified for jury service or to ensure that they are not unsuitable to try the case, for example, on the ground of bias. A juror who is not qualified or is otherwise unsuitable will be excused. Both prosecution and defence are entitled to challenge as many individual jurors as they wish for cause. A juror may be challenged on the basis that he is ineligible for jury service or on the basis that he may reasonably be suspected of being biased. 35. Pursuant to the Juries Act 1870 and a series of later statutes, a number of occupational groups were exempted from jury service, including the elected members of representative assemblies, ministers of religion, officers in the armed services, medical practitioners, various classes of public servants, holders of certain offices related to the sea and all who could not satisfy a threshold property qualification. 36. A review of jury service was undertaken by a departmental committee chaired by Lord Morris of Borth-y-Gest (“the Morris Committee”), which reported in 1965. The Morris Committee considered that those professionally concerned in the administration of the law and the police should continue to be ineligible for jury service. The Morris Committee noted: “103. The present law exempts many of those who practise the law or are concerned with the business of the courts. It seems to us clearly right that such persons, and all others closely connected with the administration of law and justice, should be specifically excluded from juries ... If juries are to continue to command public confidence it is essential that they should manifestly represent an impartial and lay element in the workings of the courts. It follows that all those whose work is connected with the detection of crime and the enforcement of law and order must be excluded, as must those who professionally practise the law, or whose work is concerned with the functioning of the courts. It is impossible, whether desirable or not, to ensure that jurors have no previous knowledge of the law before they begin to hear a case. Many persons without formal legal training, for example, know enough about the way our courts function to be able to make a shrewd guess as to whether the accused has a previous criminal record; and one cannot entirely prevent by legislation the use of such knowledge in the jury room. 104. Nevertheless, it seems to us necessary to secure the exclusion from juries of any person who... ‘because of occupation or position, has knowledge or experience of a legal or quasi-legal nature which is likely to enable him to exercise undue influence over his fellow jurors’. If justice is not only to be done but to be seen to be done, such persons must not be allowed to serve on juries lest the specialist knowledge and prestige attaching to their occupations might cause them to be what has been described to us as ‘built-in leaders’” 37. As to civilian employees of the police, the Morris Committee said: “110. ... we think there is much force in the contention of the Association of Chief Police Officers that ‘all civilian employees in the police service who have been employed for some length of time, no matter in what capacity, become identified with the service through their everyday contact with its members. As such they become influenced by the principles and attitudes of the police, and it would be difficult for them to bring to bear those qualities demanding a completely impartial approach to the problems confronting members of a jury’. We find this convincing, and we have little doubt that civilian employees in the police service, including traffic wardens, should be ineligible.” 38. The Juries Act 1974 implemented a number of the Morris Committee’s recommendations and included a provision rendering police officers and other involved in the administration of justice ineligible to serve on juries. 39. In September 2001 the issue of jurors’ eligibility was reviewed by Lord Justice Auld in the context of his “Review of the Criminal Courts of England and Wales” (“the Auld Review”). He considered the concerns which arose when individuals connected in a professional capacity with the criminal justice system were permitted to serve on juries: “There is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the overall fairness of the tribunal and of the trial should not be at risk.” 40. He concluded: “Thus, in my view, there is a strong case for removing all the present categories of ineligibility based upon occupation, that is, ... the Judiciary, ... others concerned with the administration of justice and ... the clergy ... Any difficulty or embarrassment that the holding of any such office may pose in a particular case can be dealt with under the courts’ discretionary power of excusal.” 41. He further considered developments in the state of New York, where the automatic ineligibility of occupational groups to serve had been removed (see paragraphs 121-122 below) and the positive experience of those involved in the administration of justice who had served on juries there. Accordingly, he recommended that everyone should be eligible for jury service, save the mentally ill. 42. Following this recommendation, section 321 and schedule 33 to the Criminal Justice Act 2003 (“the 2003 Act”) amended the 1974 Act to remove the automatic disqualification of those involved in the administration of justice from jury duty (see paragraphs 32-33 above). 43. The compatibility of the change in the law introduced by the 2003 Act with Article 6 of the Convention was considered prior to the applicants’ appeal hearing by the House of Lords in R v. Abdroikof and Others [2007] UKHL 37, which concerned three appeals against conviction. The first two involved trials in which serving police officers had sat as jurors; the third concerned a trial where an employee of the Crown Prosecution Service was a juror and is therefore not of direct relevance to the present case. 44. Lord Bingham of Cornhill confirmed that the test of bias under the common law was no different from the requirement under Article 6 of the Convention for an independent and impartial tribunal. He further observed: “23. It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone ...” 45. In relation to the first appeal, he found as follows: “25. In the case of the first appellant, it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.” 46. As regards the second appeal, however, Lord Bingham considered: “26. The second appellant’s case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case [that justice should not only be done, but should manifestly and undoubtedly be seen to be done], still less to do so without express language. I would allow this appeal, and quash the second appellant’s conviction.” 47. Lord Rodger of Earlsferry dismissed both appeals. He was of the view that while the notional observer’s first reaction to the news that police officers could serve on juries might well be that it was possible that a police officer on the jury would tend to prefer the evidence of any police or prosecution witnesses to the defence evidence, and be thus, consciously or subconsciously, biased in favour of the prosecution, this perception did not withstand closer scrutiny: “32. ... [B]eing fair-minded and informed, the observer will think a little more about the matter. He will reflect that, up and down the land, day in day out, we take risks when we hand the critical decisions on guilt or innocence to juries. We take the risk that, consciously or subconsciously, men on juries may be unduly sympathetic to a man charged with rape who claims that he and the woman just got carried away by their physical urges. We take the risk that, consciously or subconsciously, a juror who has herself been the victim of sexual abuse may tend to side with the woman who claims that she was sexually assaulted by the defendant. We take the risk that, consciously or subconsciously, a gay juror may tend to believe the gay man who says that he was assaulted by the defendant in a homophobic attack. We take the risk that, consciously or subconsciously, a homophobic juror may just reject the gay man’s evidence. We take the risk that, consciously or subconsciously, a juror who is an undergraduate may sympathise with a victim who is an undergraduate at the same university. We take the risk that, consciously or subconsciously, a black juror may tend to believe the evidence of a black witness as opposed to the account given by an Asian defendant. We take the risk that, consciously or subconsciously, a juror who was convicted of drug dealing and was sentenced to four years in prison in the early 1990s may sympathise with a defendant accused of supplying drugs. Having reflected on these and similar situations, the observer will realise that, in effect, Parliament has now added two to the long list of situations where there is indeed a risk, where it is indeed possible, that, consciously or subconsciously, a juror may be partial. But he will also realise that Parliament must have considered that in these two situations, like so many others, the risk is manageable within the system of jury trial as we know it.” 48. He continued: “33. It would, after all, be wrong to pretend that in these various situations there is not a real, as opposed to a fanciful, possibility that the jurors in question may be biased. For instance, there is plainly a real possibility, in the sense of it being something that could well happen, that a homophobic juror may just reject the gay man’s evidence. But the law regards that risk as being manageable and, so, acceptable. The law caters for the risk. It takes steps to minimise it by making jurors take an oath or affirm that they will ‘faithfully try the defendant and give a true verdict according to the evidence’. It makes them sit and listen to the evidence in a solemn setting. It requires the judge to give them a direction that they must assess the evidence impartially. Of course, it would be naïve to suppose that these safeguards will always work with every juror. The law is not naïve: it stipulates that there should be 12 men and women on a jury. The assumption is that, among them, the twelve will be able to neutralise any bias on the part of one or more members and so reach an impartial verdict – by a majority, if necessary. If any of the jurors consider that the jury will be unable to do so, then they must tell the judge, who can then deal with the matter – by discharging the jury, if necessary. So the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict.” 49. He considered that the jury system operated, not because those who served were free from prejudice but despite the fact that many of them would harbour prejudices of various kinds when they entered the jury box. However, he accepted that there would be an unacceptable risk of a juror going wrong if, inter alia, he was a friend of one of the witnesses, was having an affair with a witness or had worked alongside one of the witnesses. In such a case he agreed that the person should be discharged from sitting on the jury. 50. As to the first appeal, Baroness Hale concluded: “54. The Abdroikof case was tried at the Old Bailey, which hears cases from all over London and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case. Hence this appeal should be dismissed ...” 51. She identified further considerations arising in the second appeal which required the conviction to be quashed, noting as follows: “53. In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.” 52. Lord Carswell noted at the outset that the changes relating to jury service enacted in the 2003 Act reflected the changes in the sophistication of jurors and in the willingness of Parliament to trust in their impartiality and ability to recognise and put aside their prejudices. He continued: “67. Unconscious prejudices and bias can be insidious in their operation on people’s minds, but the number and diversity of people on a criminal jury constitute a safeguard against such prejudice or bias on the part of any one juror exercising sufficient influence to determine the outcome of the trial. To a certain extent they are inescapable in human society, but it is generally reckoned that they are balanced out in the jury’s deliberation and subsumed in the general attempt to reach a consensus ... ...” 53. Lord Carswell agreed with Lord Rodger that both appeals should be dismissed. 54. Lord Mance agreed with Lord Bingham and Baroness Hale and concluded: “83. With regard to the case of the second appellant, as Lord Bingham and Baroness Hale point out ..., the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the ‘brother officer’ of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial – a factor which Metropolitan Police Notice 20-2004 Item 1 identified as one to be avoided ... Absent such considerations, I do not agree that it follows automatically that a police officer is disqualified as a juror, even in a case of significant conflict of evidence between a police witness and a defendant.” 55. The Metropolitan Police, by Notice 20-2004 Item 1, informed police officers and staff that they were no longer exempt from jury service. The notice advised that: “Where possible, police officers should not attend the court where their Operational Command Unit commits its work”. 56. In 2009, after the applicants’ appeal had been dismissed, Her Majesty’s Court Service issued Guidance for summoning officers when considering deferral and excusal applications. The guidance notes, inter alia: “18. Members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the excusal grounds may not exist. If this is not possible, then they should be excused ... There are additional considerations which apply to certain categories of potential jurors involved in the administration of justice. Those categories are: (1) employees of the prosecuting authority; (2) serving police officers summoned to a court which receives work from their police station or who are likely to have a shared local service background with police witnesses in the trial. (3) serving prison officers summoned to a court, who are employed at a prison linked to that court or who are likely to have special knowledge of any person, involved in a trial. Potential jurors falling into category (1), (2) or (3) should be excused from jury service unless there is a suitable alternative court/trial to which they can be transferred. For example an employee of the Crown Prosecution Service should not serve on a trial prosecuted by the CPS. However, they can serve on a trial prosecuted by another prosecuting authority, such as the Revenue and Customs Prosecution Office. Similarly, a serving police officer can serve where there is no particular link between the court and the station where the police juror serves.” 57. Following the judgment in Abdroikof and Others, but prior to the Court of Appeal judgment in the applicants’ case, the Court of Appeal handed down judgment in the case of R v. Ingleton. The appeal against conviction had been lodged in light of the fact that one of the jurors was a police officer who knew all the officers in the case, including the four who had given evidence. 58. The Court of Appeal considered the judgment of the House of Lords in Abdroikof and Others and summarised the position as follows: “29. In all cases the test is one of apparent bias. This will depend on the facts. If, for example, a potential juror knows a witness personally, it is common for such a juror to stand down. Where, however, the witness he knows is not contentious and not to be called, but is taken simply as read as an agreed statement, there may well be no possibility of bias. It is therefore necessary for the judge to make all appropriate factual enquiries. Usually, this is by posing questions, either in court or in writing to the potential juror. The manner in which the questions are asked will depend on the circumstances. Sometimes a few questions in open court will suffice. In other cases, where the information might be sensitive, or more detail is required, the matter may have to be dealt with in writing. 30. The results of the factual inquiry should be made known to counsel, who will then be in a position to make submissions to the court. Here, it would have been helpful to have known how well the juror knew the police officers. Had he ever worked with them on any particular matter or in a particular project? How often did he see them in the course of his work? How and in what circumstances did he meet him? All such inquiries can be dealt with by very brief questions, briefly stated and briefly answered. They are not complicated ...” 59. The Court of Appeal was of the view that although the evidence of the police officers in the case would not have been vigorously challenged even if the policeman had not been on the jury, the evidence was nevertheless a relevant part of the background to the case. It noted that it was simply not known how important the evidence was to the jury’s deliberations and in what light they considered the evidence or what views the police officer juror expressed, if any, on his colleagues’ evidence. It concluded: “33. In these circumstances, we have no doubt that there was here a real possibility of bias arising from the presence on the jury of a police officer who knew the police witnesses. The possibility that he might be likely to accept the words of his colleagues, irrespective of the dispute between the parties is one which can only be described as real. We know no more than that and there is no suggestion the police officer was actually biased. None at all. Justice must not only be done but must be seen to be done. We fear that on the facts of this case that did not occur.” 60. As to the point at which the juror ought to have been discharged, the court noted: “34. ... We consider that caution should have caused [the trial judge] to exclude as a juror the officer who knew all four of the police witnesses who were going to give evidence, particularly in view of the fact that he could not be certain as to the precise scope, when all the evidence was given, of their evidence and how it might emerge, and not forgetting that this was the third attempt, it appears, to bring this matter to trial. 35. ... [T]he police officer juror should, in our judgment, have been asked to stand down at the outset, as should normally occur where a policeman or indeed any other potential juror knows witnesses who are to be called to give oral evidence, unless it can be said with certainty that the evidence of the witnesses who are known will play no contested part in the determination of the matter. 36. We venture to suggest, if it cannot be so determined with certainty, the potential juror who knows witnesses personally should be asked to stand down, whether he be a policeman or not a policeman. In other words, in many cases, if not most, where a potential juror knows witnesses who are likely to be called, it is the case that an enquiry always has to take place, albeit a brief one. When that enquiry has taken place, then the judge will act upon it, but we reiterate, unless it can be said with certainty that the known witnesses to be called will play no contested as opposed to an agreed part in the determination of the issues, a juror who personally knows a witness or witnesses should normally be asked to stand down. Once the juror was not excluded, we accept [defence counsel’s] submission that the judge had a continuing obligation to keep that decision under review. When facts emerge which might change the situation, having decided not to exclude the juror, the judge is under an obligation to consider such facts and here, it is in the view of this Court when it became apparent there was potential significance of the police evidence, that the jury should have been discharged, as it simply could not be known how the juror would deal with the witnesses as against the defendant’s case ...” 61. Following the judgment of the Court of Appeal in the applicants’ case, the Court of Appeal dismissed an appeal in the case of R v. C, where a juror with experience as a police officer serving in a child protection or child abuse team and of conducting interviews with those who made complaints of such behaviour sat at a trial involving offences of sexual abuse against the defendant’s daughter. The judge had refused to discharge the juror, noting that the juror had indicated in her note to the judge that she felt able to give a proper judgment on the evidence. 62. The Court of Appeal reiterated that the fact that a police officer was a juror did not in itself give rise to an appearance of bias. However, an appearance of bias could arise where a police officer juror shared some connection, for example, by way of place of service, with a police officer in the case whose evidence was going to be in dispute. 63. The court noted that the evidence of the police officer in the case was not in dispute, although there was some criticism of the conduct of the interview which was alleged to have been aimed at eliciting rather than challenging what the complainant was saying. However, the court found that this was insufficient to give rise to an appearance of bias, noting that those who investigated matters of sexual abuse might believe some complainants or disbelieve them and that it was impossible to say that the occupation carried an inherent risk of an assumption that the allegations were truthful. 64. The Court of Appeal subsequently dismissed two appeals against conviction for money laundering offences in R v. Burdett and Smith. The evidence against the defendants consisted of bank account evidence of cheques cashed; nothing had been found to link them to knowledge of the particular underlying fraud. At trial, the prosecution had called only one witness, a police officer, to read the defendants’ interviews. He was cross-examined principally to show that there was no evidence directly linking either of the defendants to the underlying fraud. 65. After the jury had been empanelled but before the prosecution witness was called, it was discovered that one of the jurors was a policeman. The two officers worked for different police forces some distance apart, and the police officer juror was a road traffic officer. An application was made by the defence to discharge the jury, but the application was refused. The juror became the jury foreman. At trial, a dispute arose between the police officer witness and one of the defendants. 66. The court reiterated the relevant principles, and concluded: “It seems to us that it is clear there was no connection between the two officers. It would therefore follow that no right-thinking person would think there would be bias. Secondly, and more crucially in this case, it is clear that the point raised on behalf of [one of the defendants] was not an important part of the prosecution case, nor a serious issue between the defence and the prosecution. It was a small part of [his] case. We cannot therefore consider that this ground of the appeal has any merit at all. It can be dismissed simply by the application of now the well-established principles to the facts. The answer is clear.” 67. In R v. Yemoh and Others, the Court of Appeal dismissed the appeals of a number of appellants complaining about the presence of a police officer on the jury at their trial concerning a stabbing. At trial, evidence was heard from two police officers who had arrived at the scene of the crime in the London borough of Hammersmith shortly after the victim had collapsed. The evidence of one of the officers, which strongly supported the theory of a group attack on the victim, was challenged by all defendants. 68. A few days after the trial started, the judge learned that a police officer was sitting on the jury. He did not inform the parties until the jury had retired to deliberate. At that point, he informed counsel of the fact that a serving police officer was a member of the jury, and that he appeared to be its foreman. He explained that the police officer juror was based in the area of Wembley, London, and had indicated that he knew nothing about the case. The judge was accordingly satisfied that he should serve on the jury. He also indicated that he had had in mind that the police evidence was “really less than contentious” and that had that not been the case, he would have reported the matter to counsel immediately. Counsel for the defence requested that the jury be discharged, noting that Hammersmith and Wembley were not very distant from one another geographically and that youth gang violence was a problem affecting both areas. The judge refused the application. 69. Summarising the relevant passages of the judgments in Abdroikof and Others and the applicants’ case, the Court of Appeal noted: “111. Although it might have been preferable for the judge to have asked more questions of the juror, it seems to us that we should accept the answer as conveyed to the judge that the juror knew nothing about the case, and by that we mean in his professional position. If he had inside information about the case or the background to the case as a result of his position as a police officer in Wembley, we take the view that he would have told the court official. Likewise the judge made it clear in his summing up that the jury had to decide the case on the evidence and we imagine he had said that on other occasions. If the juror was aware of information which did not form part of the evidence in the case then it seems likely to us that he would have publicly made that clear. Unlike in the United States, jurors are only rarely questioned in this country. Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials, such as terrorism and fraud cases, but not otherwise. The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.” 70. The Court of Appeal further observed that the factual evidence of the two police officer witnesses differed on the contested point, and that there were other witnesses on the same issue. It considered that this removed the basis for an allegation of bias, emphasising in particular that: “...there is absolutely no logical reason why, and no evidential basis for contending that, the juror would have preferred the evidence of [the police officer who gave the contested evidence] (and persuaded the other jurors to accept it) over [the second police officer] merely because the juror was a policeman.” 71. Following his conviction for having an offensive weapon, the defendant appealed on the basis that his jury had included a police officer, based at Bethnal Green police station in London. Two police officers, based at Limehouse police station, London, had given evidence at his trial, and the defendant challenged the evidence they gave. All officers were members of the Metropolitan Police. 72. The Court of Appeal summarised the position as follows: “16. ... First, the question is obviously one of fact and degree and there is a measure of judicial discretion at the margins. Second and obviously each case will depend on its own facts. Third, again at the margins it is difficult to deduce clear cut principles which are to be applied.” 73. The court recalled that Parliament had decided that generally speaking police officers should not be disqualified from serving on juries and continued: “17. ... We take note of the fact that the Metropolitan Police is a huge organisation, and we consider that it would be contrary to the Parliamentary intention if no Metropolitan Police officer could serve on a London jury in any case where significant evidence of a Metropolitan Police officer was challenged. The expression used in Abdroikov, ‘the same local service background’, cannot extend to service in any part of the whole of the Metropolitan Police area. In the case before the House of Lords where the appeal succeeded the officers served in the same borough. Mere casual contact with a London police station should not alone be regarded as significant since no doubt police officers from time to time make enquiries all over London and beyond. Certainly, in the present case there was a conflict of evidence, central to the issue in the case, between police officers and the appellant. It was, however, a conflict as to the officer’s accuracy not as to their truthfulness and it was, we think, generally speaking a strong case and there was some support for the police account ... Lord Mance did not regard such a significant conflict of evidence as an automatic ground for disqualification and in this respect, he may be seen as having been in a majority with Lord Roger of Earlsferry and Lord Carswell who dissented in the result.” 74. The court therefore concluded: “18. The judge is not therefore, in our judgment, to be regarded as being in error, in exercising his discretionary judgment to reject the submission because, first of all, although there was a significant conflict of evidence between the police officers and the appellant, Lord Mance did not consider that that was an automatic ground for disqualification, and secondly, because these officers were not within our understanding of Abdroikov from the same local service background. They were merely and only, for present purposes, all members of the Metropolitan Police.” 75. The court also commented on the applicant’s failure to challenge the presence of the police officer juror before the trial had commenced: “19. There is an added feature in this case. We are concerned with the putative view of the fair-minded observer. Such a putative person would have known that the fact that the juror was a police officer was published before the trial when the jury were being selected. The defendant then raised no objection although the nature of the impending evidential conflict must have been well known to him and those representing him. We think that the fair-minded observer would reckon that it was rather late in the day to take the point at a later stage which should have been taken, if at all, at the outset. The fact that the point was taken when it was is not fatal but it colours the court’s approach to its persuasiveness. For these reasons the appeal against conviction is dismissed.” 76. In R v. Tregalles, the applicant appealed against his conviction of sixteen offences of rape, buggery and indecent assault involving his children. A member of his jury was a police officer, and she became the jury foreman. Prior to trial, she had advised the summoning officer of her occupation, but this information was not passed on to the judge and none of the participants of the trial were aware of it until after the jury had returned their verdicts and been discharged. When it became known, the police officer was questioned by the judge in the presence of counsel. She explained that she served in the Bolton Division of the Greater Manchester Police Force. 77. The Court of Appeal accepted that the defendant’s evidence involved allegations of improper conduct in 1981 and 1991 by police officers of the Greater Manchester Police Force, although the officers appeared to have worked in different divisions to the police officer juror. The court noted that for the jury to accept that the defendant was telling the truth required them to accept that the police had behaved improperly on both occasions. However, it observed that the case did not involve contested police evidence, let alone a crucial dispute of evidence between the defendant and police witnesses: the police officers concerned in the events of 1981 and 1991 were not called as witnesses and their identities were not even known. It continued: “31. ... Thus the presence of a serving police officer on the jury cannot give rise to any question of partiality towards a witness (and there is not, and could not be, any suggestion of partiality towards the prosecution). The question of apparent bias depends in this case, as it seems to us, simply on whether a serving officer might be influenced to reject the appellant’s evidence concerning events in 1981 and 1991 out of a sense of loyalty to the police and an unwillingness to accept the possibility of improper conduct on the part of another police officer, rather than making a fair assessment of the appellant’s credibility on the basis of the evidence in the case.” 78. In this regard, the court noted that the defendant’s evidence regarding the police officers formed a relatively small part of the evidence as a whole. It further noted that the police officer on the jury served, so far as was known, in a different division from the officers concerned; she did not know who those officers were; and it was conceded by defence counsel that in the light of her apparent age she could not herself have been a serving officer at the time. It observed: “33. ... Those factors all militate against her assessment of the appellant’s evidence ... being influenced by her position as a serving officer.” 79. The Court concluded: “34. Taking all those matters into account, we have reached the conclusion that the case of apparent bias is not made out. We are satisfied that in the circumstances of this case a fair-minded and informed observer would not consider there to be a real possibility of bias arising out of the occupation of the juror. It is unfortunate that the juror’s occupation was not communicated to the trial judge before the trial proceeded. It is likely that, out of an abundance of caution, the judge would have asked her to stand down if the position had been known. In the event, however, her presence on the jury did not affect the fairness of the appellant’s trial or render the convictions unsafe.” 80. In the case of R v. L the applicant was convicted of one count of attempted burglary and two counts of burglary. At trial, five police officers had given evidence as to his movements over the period in which the offences had taken place. Following the lodging of an appeal, the Court of Appeal invited the Registrar of Criminal Appeals to investigate the membership of the jury, and in particular the occupations of its members. These inquiries revealed that one juror was an employee of the Crown Prosecution Service (“CPS”), a second was a serving police officer and a third was a retired police officer. As to the police officers, the serving police officer’s role was administrative and he was non-operational. He had no knowledge of the defendant and no connection with those conducting the surveillance operation. He assumed that the Metropolitan Police was generally responsible for the operation which had led to the defendant’s arrest and he was a member of that force. The retired police officer retired from the City Police in 2003. He had no connection with the surveillance operation in the case or with the Metropolitan Police. 81. The court explained that it was normal practice for the attention of the judge to be drawn to any information about potential jurors with specific occupations, such as the police, the Crown Prosecution Service and the Prison Service, whose role might be regarded as directed to and part of the overall prosecution of offences. It further observed that the form for the jury summons had been amended since the trial to include the following question: “If you are, or have been in the last five years, employed by any Police Force, Her Majesty’s Prison Service or any prosecuting authority, please state your occupation, your employer and work place location. We may need to contact you about this.” 82. The court acknowledged that what had happened in relation to the selection and empanelling of the jury in the appellant’s case was unclear. It continued: “17. ... We know from the transcript that before the jury was sworn the Common Serjeant raised the issue with counsel. We have studied the transcript. He asked defence counsel whether there was any ‘attack on police officers’ so as to enable him to decide whether to ‘enquire whether any of the jury members are serving officers or part of the prosecution services’. Counsel responded that there might well be criticism of the police and that it might be advisable to avoid any potential risks, and so the necessary enquiries should be made. Counsel accepted, however, that there would be no direct attack on any individual police officer, although he later said that there would be suggestions that police officers were ‘incorrect factually or otherwise’. He then added that there would be observations that he would make towards the end of the case which would not fall ‘particularly kindly on police ears’. In answer to a further direct question by the Common Serjeant, counsel confirmed that there was ‘certainly not going to be any accusation of deliberate fabrication’. That response led the Common Serjeant to observe that this represented the dividing line on the issue. As we have indicated, counsel’s answer at this stage was unfortunate. The reality was that, however uncomfortable it might be forensically, it was, as we look at the case now with the benefit of hindsight, inevitable that at least one of the officers would have to be addressed directly on the basis that his evidence was not true. 18. Counsel for the Crown suggested that if the issue was that police officers were mistaken rather than lying, then it ‘may be proper’ that police officers should be allowed to sit on the jury. With this information the Common Serjeant decided that no further steps should be taken in relation to the jury panel, and no further comments were made to the jury about the subject.” 83. On appeal, defence counsel told the court, and the court accepted, that he had not been aware of any of these facts at the time. He submitted that he should have been informed of the occupations and that if he had known, quite apart from any specific objections to individual jurors, he would also have objected to a jury a quarter of whose members consisted of three individuals involved in or linked with “the prosecuting arm of the criminal justice system”. 84. The court then turned to the facts of the case, addressing first the position of the two police officer jurors: “24. ... The retired former police officer did not have, and never had, any connection whatever with the police force, let alone any individual officers involved in the surveillance operation or who gave evidence at trial. There was no link whatever between him and the prosecution process. He was indeed long-retired. 25. The serving police officer is in a different position because he was at the time still a serving officer. However, he, too, had no link at all with the case or the prosecution witnesses or the surveillance operation, and in particular no contact or link with the only police witness whose evidence was to be challenged (even if not head-on), or the police station involved in the process, or the court to which the case had been committed. So, in accordance with the principles outlined in Abdroikov and [the applicants’ case], we can see no reason why the position of either of these two jurors should cause any further concern or interest.” 85. The appeal was in the event upheld on the ground of the participation of the CPS juror. However, having upheld the appeal on this limited basis, the court went on to consider the defence argument that the cumulative effect of the employments of the three jury members should have led to the quashing of the conviction. On this point, it noted: “33. ... In the context of random jury selection, questions of eligibility or disqualification or excusal are directed to individual potential jurors, not to the jury as a whole. It might be possible to envisage very exceptional circumstances in which the end result of the random process could give rise to concerns about the appearance of jury impartiality even when, taking each individual juror on his or her own, there would be none. [Counsel for the defence] suggested in argument the possibility of twelve jurors, each one of whom was a serving police officer, about whom each one taken individually there could be no concern in the context of disqualification or excusal. It would, he suggested, not be unreasonable for the defendant at such a trial (or in the event of a conviction, the appellant), as well as properly informed, reasonable members of the public, to question the fairness of the process, again preferably before the trial started, or, if the fact only emerged after conviction, after trial. 34. We shall deal with the submission briefly. In the criminal justice process it is never wise to say ‘never’. In the context of a situation which does not arise for decision, we simply record that this problem should be examined if and when it occurs. We have already indicated that it would be a very exceptional case if it were to occur. Given the valuable Courts Service Guidance and the provisions of the CPS Code of Conduct for its employees in the context of their potential as jurors, we think that the exceptional circumstances that we have in mind are most unlikely to arise.” 86. Once selected for jury duty, jurors must swear an oath or affirmation that they will: “faithfully try the defendant and give a true verdict according to the evidence. ” 87. Prospective jurors and those called to sit as jurors are provided with guidance to ensure that they are alert to the need to bring any concerns about fellow jurors to the attention of the trial judge. 88. Jurors are also warned, by directions of the trial judge, of the importance of not discussing the case with anyone outside their number and are further directed to try the case on the basis of the evidence. 89. In Montgomery v Her Majesty’s Advocate [2003] 1 AC 641, Lord Hope of Craighead noted: “...the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.” 90. The judge may discharge a juror whether due to illness or any other reason. The remainder of the jury may complete the hearing of the case and return a verdict provided that their number is not reduced below nine. 91. Section 8(1) of the Contempt of Court Act 1981 states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. 92. The jury’s verdict is given in open court in the presence of all the jurors and the parties to the proceedings. Majority verdicts are possible. The minimum majorities possible are 11-1 or 10-2. In the case of a jury which has been reduced in number to ten or eleven members, the minimum permissible majorities are 9-1 or 10-1 respectively. A jury of nine members must be unanimous. 93. Jury selection in Scotland is governed by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 as amended. Section 1(1)(d) provides that those listed in Part I of Schedule 1 to the Act are ineligible for jury service. Part I of Schedule 1 includes the judiciary and others concerned with the administration of justice. The latter category in particular covers, inter alia, “constables of any police force”. 94. In September 2008 the Scottish Government published a consultation paper on “The Modern Scottish Jury in Criminal Trials”. The consultation paper sought views on whether the categories of ineligible persons should be maintained or amended. In December 2009, it published a follow-up paper, “The Modern Scottish Jury in Criminal Trials – Next Steps”. It indicated that it did not intend to amend the list of ineligible persons as the responses to the consultation did not indicate a strong appetite for change. The paper further noted that there was: “... a strong indication from respondents that it would be unwise to open up jury duty to those who work within the justice system ...” 95. By virtue of article 3(3) of the Juries (Northern Ireland) Order 1996, persons listed in Schedule 2 to that Order are ineligible for jury service. Schedule 2 includes police officers. 96. The Juries Act 1976 as amended regulates juries in Ireland. Section 7 of the Act provides that the persons specified in Part I of the First Schedule to the Act are ineligible for jury service. Part I of the Act lists persons concerned with the administration of justice and includes members of the Garda Síochána, the Irish police force. 97. In March 2010 the Law Reform Commission in Ireland published a consultation paper on jury service as part of its Third Programme of Law Reform 2008-2014. It considered the developments in other jurisdictions, commenting in particular on the New York Jury Project (see paragraph 121 below); the Morris Committee report (see paragraphs 36-37 above), the Auld Review and subsequent legislative changes in England and Wales (see paragraphs 39-42 above); the recent consultation exercise in Scotland (see paragraph 94 above); and the activities of the Law Reform Commissions of New South Wales and Western Australia (see paragraphs 110-111 and 112-115 below). 98. In its discussion of the ineligibility of police officers, the Commission noted, as regards the New York Jury Project: “3.70 The New York Jury Project concluded that the exemption of police officers from jury service was no longer justified on the basis that a large number of cases are not connected to the special training or presumed biases of police officers in that jurisdiction. This is particularly the case in terms of a large number of civil trials in the state of New York. However, this is not the situation in Ireland where the vast majority of cases requiring juries involve serious criminal offences.” (footnotes omitted) 99. The paper concluded: “3.82 The Auld Review suggested that the trial judge, on a case-by-case basis, should resolve cases of this nature. However, this can only be achieved where the judge is aware of the presence of such jurors and is familiar with any possible connection to the case. The fact that this decision by the House of Lords was a majority decision suggests that the difference picked out in the cases does not provide any hard and fast rules. Having considered this issue at some length, the Commission has provisionally concluded that, since members of police forces have strong occupational cultures, there is scope for a likelihood of at least a perception of bias if Gardaí were permitted to serve on juries. 3.83 The Commission therefore considers that members of An Garda Síochána should continue to be ineligible for jury service. The Commission has come to this decision on the basis that the overwhelming majority of jury trials in this jurisdiction relate to the prosecution of criminal offences. It is possible that Garda jurors might legitimately have access to information about accused persons which would be inadmissible as evidence at trial and which would not be available to other jurors. Additionally, the Commission considers that it is important to maintain community confidence in the impartiality, fairness and unbiased nature of the jury system. The Commission considers that confidence in trial by jury will be called into question if members of the An Garda Síochána were eligible for selection as jurors ...” 100. The Commission therefore provisionally recommended that the exclusion be retained. 101. Article 604 of the Maltese Criminal Code provides that some occupational groups are exempted from serving as jurors. The list of exempted occupations includes police officers. Pursuant to Article 606, if the name of an exempted person is drawn to serve on a jury, it is not taken into account and is considered as if it had not been drawn. 102. Pursuant to Articles 255 and 257 of the French Code on Criminal Procedure, police officers are not able to serve on juries. 103. Article 224 of the Belgian Judiciary Code lists various occupations and functions which are excluded from jury service. While certain civil servants are excluded, the list does not refer to “police officers” as such. An assessment of whether individual officers fell within any other category listed would have to be made on a case by case basis. 104. Article 289 of the Code of Criminal Procedure allows an accused to challenge between six and twelve jurors without providing reasons. 105. Section 71(5) of the Administration of Courts Act 1915 (domstolloven) provides that police officers are not eligible for jury service. 106. Section 3 of the 1990 Act on Juries of Assizes and Lay Judges excludes police officers from serving on juries. 107. In New Zealand, the criteria for eligibility for jury service are set out in the Juries Act 1981. Section 8 of the Act contains a list of “certain persons not to serve”, which includes police officers. 108. In February 2001, the New Zealand Law Commission published a report on Juries in Criminal Trials. It made a series of recommendations regarding jury services, but did not address whether police officers should continue to be excluded. A prior discussion paper published in July 1998, which highlighted aspects for consideration, did not suggest a possible reform of the police officer exclusion, although it did invite submissions on whether lawyers and barristers should continue to be excluded from jury service. 109. In each of the six Australian states as well as in its two major mainland territories police officers are ineligible for jury service. 110. In a report of September 2007, the New South Wales Law Reform Commission considered the developments in England and Wales and in New York. As to the New York Jury Project in particular, it noted the conclusion there that the exemption of police officers was not justified because of the large number of cases that did not implicate the special training or presumed biases of police officers, on which they could sit without any problem at all. The Commission continued: “This is not the case in NSW, where the vast majority of jury trials are of criminal matters.” 111. It concluded: “4.71 It is our view that serving members of the core law enforcement agencies mentioned at the commencement of this section who are actually engaged in criminal investigation and law enforcement should continue to be ineligible. This follows from the fact that the vast majority of jury trials are criminal, and from the further fact that the primary job of these officers is the detection and charging of crime, so that it is likely that they would be aware of, or have access to, information concerning suspects that would not be available to private citizens and could not be adduced in evidence. In our view, it is important to maintain the community confidence in the impartiality and fairness of the jury system, which might be threatened if police or those centrally involved in criminal law enforcement were permitted to serve as jurors.” 112. The Law Reform Commission of Western Australia reached a similar conclusion. In a discussion paper published in September 2009, the Commission discussed the changes in England and Wales following the Auld Review. It considered that there were good reasons for the exclusion of justice-related occupations, noting that the integrity of the jury system depended upon its independence from government and impartiality to inspire public confidence in the criminal justice system. It further observed that, while some US states had abolished occupation-based exclusions, these jurisdictions had also established rigorous jury vetting practices to ensure that juries were as impartial and independent as possible. Such practices existed neither in Australia nor in England. It continued: “The failure of the Auld review (and the subsequent Criminal Justice White Paper) to properly appreciate the importance of the rationales underlying justice-related occupational exclusions has left the jury system in England vulnerable to criticism that it is not properly independent or impartial ... ... It is the Commission’s strongly held view that, even without the attendant practical difficulties, the underlying rationale of juror independence from the justice system and the status of the jury as an impartial lay tribunal preclude adoption of the English approach in this jurisdiction. The Commission notes that various English judges and commentators have expressed the view that the fair trial of the accused is potentially at risk where judicial officers, police officers and lawyers can sit on juries. More importantly, the English House of Lords has found that the potential of bias in some cases where police officers and prosecutors have served on juries is such that the jury’s verdict must be considered unsafe and the conviction quashed.” (footnotes omitted) 113. Taking into account the experience in England, the Commission expressed the view that the current exclusion of police officers from jury service during the term of their employment and for five years thereafter should remain in place. It found the following points to be persuasive: “• the integral role that police officers play in the detection and investigation of crime and prosecution of criminal charges; • the fact that police officers have ready access to information that may concern an accused or witness and that is not available to lay jurors and may not be adduced in evidence; • the potential for partiality of police-jurors toward the prosecution or the evidence of fellow officers, whether real or apparent; • the risk of unsafe verdicts should a police-juror know or be known to a witness or prosecutor or an accused in a trial; • the appearance to an accused that he or she would not receive a fair trial where a police-juror was empanelled; and • the need to preserve public confidence in the impartial administration of criminal justice.” (footnotes omitted) 114. In its final report of April 2010, the Commission noted that, as to its proposal to maintain the ineligibility of police officers to service on juries, the vast majority of submissions it received in reply supported the proposal. Indeed, the only submission opposing it came from the Department of the Attorney-General, on the basis that the removal of the exclusion would increase the size of the jury pool as well as its representative nature. 115. The Commission concluded: “Studies undertaken in this area suggest that a police culture of ‘group loyalty’ does exist and that it is both widespread and influential ... As mentioned earlier, the English Court of Appeal has warned that the potential for a police-juror to accept at face value a fellow officer’s evidence where that evidence is disputed may be enough to put in doubt the safety of a verdict to convict. Taking into account the perception by the accused that he or she would not receive a fair trial if a police officer were empanelled on the jury, the potential for unsafe verdicts and the need to maintain public confidence in the jury system, the Commission considers that the risks of permitting a police officer to serve on a jury far outweigh any benefit that can be gained by a small increase to the jury pool ...” (footnotes omitted) 116. A discussion paper published by the Queensland Law Reform Commission in June 2010 also reviewed the developments which had occurred in other jurisdictions. As to the ineligibility of police officers to serve, the paper noted: “7.157 Where police officers have a connection with the case at hand, or are known to the witnesses, prosecutors, defendant or other participants in the trial, their presence on a jury would constitute a clear case of potential bias which ought to be avoided. 7.158 Aside from specific instances like those, however, it may be thought that police officers would be no more susceptible to prejudices or biases than any other potential juror. Lord Justice Auld suggested as much in recommending that police officers be made liable to perform jury service in England and Wales: ... 7.159 A significant body of research has, however, demonstrated that ‘police as a group are generally suspicious and primed to see deception in other people’ and ‘tend to make prejudgments of guilt, with confidence, that are frequently in error’. In the United States, police training has been found to enhance this ‘guilt-presumptive process’: trained investigators ‘were significantly less accurate, more confident, and more biased toward seeing deception’. Thus, police officers may not merely be prone, like everyone else, to any number of a range of personal prejudices or biases but predisposed, by virtue of their profession, to assume guilt. This is not a criticism of police, but a reflection of the nature of their profession and training. 7.160 ... Regardless of whether an individual officer is directly connected with a particular case or a trial’s participants, and whether or not he or she personally is biased towards the prosecution, it would seem to be inimical to include those identified with one of the two opposing sides of the adversarial contest in the pool of ordinary community members whose task is to judge – with impartiality and independence – the contest between those two sides.” (footnotes omitted) 117. The Law Reform Commission’s provisional recommended that police officers should continue to be ineligible for jury service. 118. In nine of the ten provinces of Canada (excluding Quebec, where the right to a jury trial is an exceptional one), legislation provides that police officers are excluded from jury service. 119. The Jury Selection and Service Act 1968 is the federal legislation which governs juries in the United States. Section 1863(6) sets out three categories of persons who are not permitted to serve on juries on the ground that they are exempt from service, namely members in the active service of the armed forces, members of the fire or police department and public officers in the executive, legislative or judicial branch of federal, state or local government actively involved in the performance of official duties. 120. Paragraph 1866(c)(3) provides that any person summoned for jury service may be excluded upon peremptory challenge, i.e. challenge without cause shown, as provided by law. Paragraph 1866(c)(4) provides that a person may be challenged pursuant to the procedure specified by law upon a challenge for good cause shown. 121. In the state of New York, a report to the Chief Judge, The Jury Project, was published on 31 March 1994 (“New York Jury Project”). The report proposed that all automatic exemptions and excusals from jury service be eliminated. It noted that New York had the most extensive list of occupational and related exemptions in the United States, and that half of the states outside New York had either reduced or completely abolished occupational jury exemptions. As regards the exemption of police officers, the report explained: “Other occupational exemptions (notably those for doctors and law enforcement officers) are often justified on the ground that these individuals would not be appropriate jurors in particular cases (physicians in malpractice and some tort cases; police officers in criminal cases). Putting aside the dubiousness of this proposition, there are obviously a large number of cases that do not implicate the special training or presumed biases of doctors and police officers, on which they could sit without any problem at all.” (footnotes omitted) 122. The New York Judiciary Law now contains no automatic exemption for police officers. However, the possibility for the defence to make a number of peremptory challenges remains, pursuant to Article 270.25 of the Criminal Procedure Law. 123. Section 5 of the Jury Ordinance exempts from service as jurors members of the Hong Kong Police Force. 124. A June 2010 report by the Law Reform Commission of Hong Kong reviewed the applicable criteria for service as jurors. It considered the position in other common law jurisdictions and examined the Auld Review and the subsequent legislative amendment in England and Wales to allow police officers to serve on juries. The report noted: “5.107 Members of the Hong Kong Police Force... are generally perceived as part of the prosecution process ... We took the view in our consultation paper that these persons should be excluded from jury service to avoid a perception of bias ... 5.108 We received strong support for this recommendation and maintain our view that members of the Hong Kong Police Force... should be exempt from jury service.” 125. The Law Reform Commission accordingly recommended that members of the police force should continue to be exempt from service as jurors.
| 1
|
train
|
001-96087
|
ENG
|
SRB
|
CHAMBER
| 2,009
|
CASE OF MOLNAR GABOR v. SERBIA
| 3
|
Preliminary objection joined to merits (ratione temporis);Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 6-1;No violation of P1-1
|
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
6. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the collapse of the banking system in Serbia in the 1990s, in 1998 and 2002 the respondent State adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including Vojvođanska banka, into a public debt. The legislation set the time-frame (2016) and the amounts, including interest, to be paid back to the banks' former clients. It also explicitly provided, inter alia, that any foreign currency-related judicial proceedings were to be discontinued (for details concerning the relevant domestic law see paragraphs 20-27 below). 7. The applicant was born in 1926 and lives in Subotica, Serbia. He is retired and receives a pension in the net amount of approximately 250 Euros (“EUR”) monthly. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On a number of separate occasions, the applicant deposited a certain amount of his foreign currency savings with the Subotica branch of Vojvođanska banka, a bank based in Novi Sad. 10. In 1991 the said bank refused to release the applicant's funds. 11. On 21 July 1993 the applicant filed a civil claim, seeking the release of his foreign currency deposits with the interest stipulated. 12. On 27 September 1993 the Municipal Court in Subotica ruled partly in favour of the applicant and ordered the bank to pay him: (i) 15,584.41 German Marks (“DEM”), on account of his foreign currency savings; (ii) 37,460,000,000 Yugoslav Dinars (“YUD”), for his legal costs; and (iii) the statutory interest due in respect of the latter as of 27 September 1993. 13. On 20 March 1996 the District Court in Subotica upheld this judgment, adding that the respondent bank should also pay interest on the sum of DEM 15,584.41 which had been awarded. In particular, this interest was to be paid as of 1 January 1993, based on the DEM sight deposit rate (kamata na štedne uloge po viđenju). 14. On 2 October 1996 the Supreme Court rejected the respondent's appeal on points of law (revizija) and confirmed the District Court's judgment. 15. On 24 April 2001 and 26 September 2001, respectively, the applicant filed two separate requests with the Municipal Court in Subotica, seeking enforcement of the above judgment by means of a bank account transfer. 16. On 2 April 2002 the Municipal Court rejected those requests, stating that, under the relevant domestic legislation, all judicial enforcement proceedings aimed at the collection of foreign currency deposits had to be discontinued. 17. On 30 March 2004 the bank confirmed that the applicant's foreign currency savings had been converted into a public debt in the amount of EUR 8,740.18. 18. As of 1 March 2007 the applicant was still owed EUR 6,652, having in the meantime, in several instalments and on various grounds, been reimbursed a total of EUR 2,088.18. 19. There is no information in the case file whether the applicant received any payments thereafter. 20. Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with “authorised banks” before 18 March 1995, including explicitly the deposits held by the bank at issue in the present case, were to become a public debt. 21. Under Article 10, the State's responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame. 22. Article 22 provided that, as of the date of this Act's entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.” 23. This Act repeals the Act described above. In so doing, however, it explicitly acknowledges as part of the public debt all deposits previously recognised as such (in the total amount of EUR 4.2 billion as of 31 March 2002). It modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually. 24. Pursuant to Article 13, the banks' clients can make use of their deposits converted into Government bonds in order to pay taxes or indeed, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, the payment of medical treatment, medication and funeral costs. 25. In accordance with Articles 10 and 11, former clients of the banks in question may sell the said bonds on the stock exchange or to other banks or individuals. Such trading is exempt from all taxation. 26. Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.” 27. This Act has been in force since 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers above-described status. 28. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (prava ličnosti) may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 29. Article 379 § 1 provides, inter alia, that all claims recognised by a final court decision shall become time-barred within ten years, including those claims which would otherwise have become time-barred within a shorter period of time. 30. Article 360 § 3 provides that courts shall not take into account whether a given claim is time-barred unless and until there is a specific objection by the debtor to this effect. 31. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim in YUD until the date of its settlement (which includes awards granted by final court judgments). 32. Article 2 states that such interest shall be calculated on the basis of the official retail price index (mesečna stopa rasta cena na malo) plus another 0.5% monthly (mesečna fiksna stopa).
| 0
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train
|
001-83873
|
ENG
|
ISL
|
CHAMBER
| 2,007
|
CASE OF SUSANNA ROS WESTLUND v. ICELAND
| 3
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
|
David Thór Björgvinsson
|
5. The applicant, Mrs Súsanna Rós Westlund, was born in 1964 and lives in Hafnarfjördur. 6. The present case has its background in a real estate sale by the applicant to Mr G. in 1999, relating to a property at Grenimelur 36 in Reykjavik. The relevant sales agreement of 27 August 1999 referred to a summary report describing the property, which included the following statement: “The house has recently been renovated on the outside, except for windows and glass. New roof tiles. Garage renovated windows partly. Wooden parquet flooring in need of repair. Great location in the west part of Reykjavik. Leakage in cellar has not been remedied. Seller will have that done.” 7. In March 2000 G. complained to the real estate agent that he had discovered a leak from the roof of the house and that the repair which had previously been done to the roof had covered only parts of it. Many new or newly discovered flaws on the property could be traced back to the leak in the roof. Moreover, G. claimed compensation from the applicant. 8. Following a report issued on 26 September 2001 by a court appointed expert, G. brought compensation proceedings before the Reykjavik District Court, claiming a discount on the purchase amount due to defects as well as compensation for the damage to the property. 9. After holding an oral hearing, at which the applicant was represented by a lawyer and both parties were heard and evidence was presented, including a report by a court appointed expert, the District Court, sitting with one professional judge and two expert judges, by a judgment of 16 April 2003, found in favour of G. and against the applicant. It ordered the applicant to pay G. 1,739,000 Icelandic krónur (ISK), plus default interest as from 26 September 2001, and ISK 600,000 for legal costs (value added tax included). The District Court’s judgment included, inter alia, the following reasons: “The plaintiff [G.] received the property in the summer of 1999. The plaintiff noticed a leak in the house in the beginning of the year 2000, after a winter with bad weather. The engineers report verified that there had been a leak on the roof. In accordance with the summary report for the sale of the house, where the property is described in writing, which also was available at the signing of the contract for sale, it is stated that there are new roof tiles on the roof. As has been verified throughout this process this was not the case. Furthermore it is not the understanding of the court that the plaintiff should have seen this fault during routine inspection of the house or should have seen whether the tiles were new. It has also been stated in the engineers report that the roof leaked and has caused damages to windows and window frames. It is therefore the understanding of the court that the defendant [Súsanna Rós Westlund] guaranteed that the roof tiles were new, and that the plaintiff should have been able to trust that the roof would not leak, even if the house is an old one. By selling the property without the proper qualities, the defendant is liable to the plaintiff in accordance with the general rule of 2. paragraph, chapter 42 of the laws then valid nr. 39/1922 regarding liquid assets.” 10. On 2 June 2003 the applicant lodged an appeal with the Supreme Court against the District Court’s judgment, challenging the latter’s conclusions that she was liable to pay G. compensation or, in any event, claiming that the amount be reduced. G. was then given until 16 July 2003 to notify the Supreme Court of whether he intended to submit any pleadings in the case, failing which it would be presumed that he would request confirmation of the District Court’s judgment and that the case would be adjudicated in accordance with Article 158 (3) of the Code of Civil Procedure (CIP), No. 91/1991. 11. Concurrently with her appeal, the applicant asked that a new expert be appointed by the District Court in order to evaluate especially the supporting surface under each tile and to evaluate the necessity of changing the supporting surface (roof cardboard) if tiles were to be changed on the roof. The District Court granted the request and appointed expert B. 12. The applicant submitted to the Supreme Court a writ of appeal dated 14 July 2003, which was deposited on 16 July 2003 together with the case-documents pursuant to Article 156(1). The writ reiterated the applicant’s claims, enclosing copies of her request to the District Court to appoint an expert and to take a statement from G. for use at a hearing before the Supreme Court. It moreover outlined the facts of the case and stated the applicant’s grounds for appeal. It referred to her claims, arguments and evidence submitted in the District Court proceedings. The applicant protested against the assessment made by the expert before the District Court. She maintained that G. had examined the house, including the roof, in detail before signing the acquisition offer. The offer of purchase had been issued on 6 June 1999 and G. had taken possession of the property on 25 June 1999, whereas the sales agreement had been issued on 27 August 1999. Thus, the applicant argued, when the sales agreement had been issued, G. had been in possession of the property for two months without ever mentioning that there had been a discrepancy between the retail accounts of the house and the state of the house with regard to roof tiles. It was unthinkable that G. had not known that the tiles were old at the time of the sales offer and certainly upon signature of the sales agreement. It was improbable that G., who was an active person of keen interest, would not have taken a look at the roof. The slope of the roof had been quite steep and could be seen from the side-walk. It was preposterous to claim that the wording of the retail could be stretched to mean something other than what could be seen in plain sight. This was the essence of the case. The applicant further maintained that not until 29 August 2000 had G. raised the matter in dispute and only then had he made an issue about the specific wording of the summary report describing the property with regard to new roof tiles. His indifference in this respect should lead to his forfeiting any right that he might have claimed. This indifference was further illustrated by the fact that he alleged to have discovered a leak shortly after taking possession of the property but had made no comments during the signing of the sales agreement or the deed. The applicant announced that she would make submissions about the confusing interpretation made by the District Court regarding the wording of the summary report describing the property and the alleged flaw on the roof. She would submit new documents to the Supreme Court when they were ready, notably a new assessment by a court appointed expert. In addition, the applicant requested the Supreme Court to take witness evidence from persons who had provided repair and restoration services to G. in order to enlighten the Supreme Court on whether they had noticed that G. himself had inspected and examined the roof during the summer of 1999. Finally the applicant stated that the case would be further presented and commented on in the course of an oral hearing. 13. As at 16 July 2003 G had not indicated that he would plead his case before the Supreme Court. 14. According to a letter of 3 September 2003 from the Supreme Court to the applicant’s lawyer, he was given until 24 September 2003 to complete her further collection of evidence under Article 158(3). The lawyer then requested an extension with reference to the need to await the completion of the assessment by the court-appointed expert, which the Supreme Court granted until 22 October 2003. On the same ground the Supreme Court granted a further extension until 5 November 2003. 15. On the latter date the applicant’s lawyer asked, by way of e-mail, for a further extension of two weeks. On the same date the Supreme Court’s registrar conveyed the following message to the lawyer by e-mail: “The possibility is still open that the respondent [G] will be allowed to present defences in the Supreme Court, although he did not make a notification to that effect. An essential requirement is a letter from the respondent to the Court, asking to be allowed to present his defences and explaining the reasons why no notification of defences was made. The letter must be accompanied by the appellant’s [the applicant’s] approval of this being allowed. This is assuming that judgment has not already been rendered on the basis of Article 158 (3) of Act No. 91/1991.” By return e-mail in the same day, the applicant’s lawyer declared that he would forward this information to the other side. He also asked whether an extension of two weeks would be granted. There is no record of any formal reply to this request. 16. In a letter of 12 November 2003 the applicant’s lawyer reiterated his request to be granted respite, until 26 November 2007, in order to present the awaited new expert appraisal. He also informed that G. had omitted to show up at a hearing and affirmed that it was now clear that G. would not make submissions. He further objected that the Supreme Court’s interpretation of Articles 158 and 161 of the CCP meant that the applicant was prevented from defending her case and stressed that a short summary of facts could not replace an oral hearing. 17. On 13 November 2003 G’s lawyer sent the office of the Supreme Court the following e-mail message: “Further to our conversation yesterday, I can confirm that my client’s [G’s] desire is not to take any action on account of [the applicant’s lawyer’s] request for a reopening of the case and to have the case adjudicated in the present form, without further collection of evidence or presentation in court. His requests were, or were to be, only an affirmation of the judgment appealed from.” 18. By a letter to the Supreme Court of 14 November 2003, the applicant’s lawyer protested against its interpretation of Article 158(3). It unduly restricted her possibilities of pleading her case in writing and orally. It meant that the case file from the District Court and her appeal to the Supreme Court would constitute the only basis for the Supreme Court’s adjudication. Therefore, she asked the Supreme Court to grant her leave to at least plead her case in writing, her observations submitted so far having only been a “skeleton” version of the submissions she had intended to make to the Supreme Court. So far she had had no opportunity to elaborate on her appeal with references to case-law, scientific research or writings, explanation of the factual aspects of this case or the documentary evidence. The lawyer stressed that in so far as he was concerned the case was not ready for examination. In the circumstances it was the adversary party who had been allowed to decide the fate of the case while the applicant had practically lost standing in the case. 19. At an oral hearing held by the District Court on 26 November 2003 expert B presented his report and answered questions from the applicant’s lawyer. 20. With a letter of 30 November 2003 the applicant’s lawyer transmitted to the Supreme Court the expert B.’s appraisal, the District Court’s decision of 26 November 2003 confirming the appraisal, two photographs of the house and some other documents. According to the applicant, the new appraisal showed that the District Court had overestimated the costs of repair, should the Supreme Court find that the applicant had promised that the roof had been completely renovated with new tiles at the time of sale. The applicant further commented on the photographs of the roof from 1993 and on the front page of expert B.’s report. She invited the members of the Supreme Court to carry out an on site visit to see that the state of the roof could be seen from the side walk. She also pointed out that her request to the District Court to hear persons who had worked on the house for G during the summer of 1999 had been denied by him, which the applicant had interpreted as an attempt to conceal information about the fact that G had thoroughly checked the roof and been aware of its state during the summer of 1999. 21. On 3 June 2004 the Supreme Court, adjudicating the case on the basis of the written case-file, rejected the applicant’s appeal and upheld the District Court’s judgment. The Supreme Court held inter alia: “The plaintiff appeared before the District Court and claimed that she knew there had been repairs on the roof in the year 1992 or so. She also claims that the repairs were only that some of the oldest tiles or cracked tiles were exchanged for others and only in certain areas of the roof. When asked, the plaintiff did not remember if this had been especially discussed in detail with the defendant, when he examined the house the first time. She did however tell the defendant that the roof had been repaired and that it no longer leaked. It is the court’s ruling that the plaintiff should have known that this description in the summary report for the sale of the house and the description of the current status of the roof, would give the defendant the wrong impression of the actual condition of the roof. The defendant should have reason to trust the description of the house in the summary report for the sale of the house and therefore have reason to believe the house had been renovated. Since the roof had not been fully renovated, the defendant has a right to compensation. In accordance with this and in other respects the Supreme Court of Iceland refers to the District Court ruling and proceedings and verifies the District Court ruling hereby.” In accordance with the above, the applicant paid ISK 3,607,067 (approximately 38,000 euros (EUR) to G. 22. The Icelandic Government drew particular attention to the following provisions of the Code of Civil Procedure (CIP), No. 91/1991: Article 155 “1. A party desiring to appeal against a judgment shall submit an appeal summons to the office of the Supreme Court, with a transcript of the judgment. The following shall be stated in the appeal summons: a. The district court’s designation and number of the case, the name of the district court that resolved the case, and the date of adjudication; b. the names of the parties, their National Registry numbers, their places of residence or stay, and, if applicable, the names of their representatives, their positions and their places of residence or stay; c. the person or persons representing the appellant in court; d. the purpose of appeal and the requests made by the appellant; e. the date when the respondent must, at the latest, notify the Supreme Court that he intends to bring forth defences in the case, which date the office of the Supreme Court shall determine when the summons is issued, and f. the consequences of failing to provide the notification provided for in subparagraph (e). ...” Article 156 “1. Following the service of an appeal summons, but before the respondent’s period provided for in Article 155, the first paragraph, subparagraph (e), is over, the appellant shall deliver the summons to the Supreme Court with proof of its service, and written observations on his behalf. He shall also deliver the case file in the number of copies which the Supreme Court may decide, consisting of the already available case documents and any transcripts on which the appellant plans to base his case before the Supreme Court. This marks the filing of the case by the Supreme Court. 2. In the appellant’s written observations the following shall be stated: a. The purpose of appeal and the appellant’s exact requests to the Supreme Court, and whether appeal is also lodged in order to obtain a reversal of any particular order or decision of the district court. b. The facts invoked by the appellant before the Supreme Court. Their description shall be concise and so clear as to preclude any doubt as to on what basis appeal is lodged; the appellant may however, as applicable, refer to particular case documents in this regard. If the appellant can not agree with the district court’s description of other relevant facts, he shall likewise state in which manner he considers them correctly described. c. References to the principal rules of law on which the appellant bases his case before the Supreme Court. d. The documents submitted to the Supreme Court at that time, and the documents he deems necessary to obtain. ...” Article 158 “1. If the respondent desires to submit written observations, he shall notify the Supreme Court to that effect within the period granted him for this purpose in the appeal summons. When the case is filed the office of the Supreme Court shall grant the respondent a period of four to six weeks to submit his written observations, at the same time sending him a copy of the case file submitted by the appellant. The appellant shall be notified of the period granted the respondent. 2. Cross-appeal shall not make the respondent entitled to any additional period. 3. If the Supreme Court does not receive any notification in accordance with the first paragraph, or if the respondent does not submit his written observations within the period granted him, he shall be assumed to request affirmation of the district court’s judgment. The case shall then be received for adjudication; the appellant may however be granted a brief period to complete the collection of evidence he may have announced in his written observations. The Supreme Court shall render a judgment in the case on the basis of the submissions made, without an oral hearing. 4. If the respondent delivered written observations, but appearance was not made on his behalf at a later stage, the appellant may be granted an opportunity to reply to his defences in a written brief, and to complete his collection of evidence. The case shall then be received for adjudication and a judgment rendered on the basis of the requests and submissions made and the appellant’s brief, taking the respondent’s submissions into account. 5. If the respondent has not delivered written observations, the Supreme Court may nevertheless permit him to present his defences in the case, with or without the appellant’s approval, provided important interests are at stake for him and his negligence is deemed excusable. This may also be done if the respondent fails to make an appearance at a later stage of the procedure. ...” Article 161 “1. When collection of evidence has been completed in a case where the respondent has delivered written observations, the Supreme Court shall decide the time of an oral hearing and make this known to the parties at a suitable notice. ... 3. A case in which the respondent has submitted written observations shall be heard orally. The Supreme Court may nevertheless decide that a case shall be presented in writing if particular reasons recommend this. The Court may also grant the parties’ unanimous request for adjudication without particular case presentation. ...” Article 162 “1. Before an oral hearing takes place during a court session, the conclusion of the district court shall be stated and the appeal summons described to the extent the President of the Court deems necessary for explanation of the case presentation. The parties shall subsequently deliver their speeches. 2. The appellant shall speak first and the respondent subsequently, if the President has not decided on a different order and notified this to the parties when called to appear for oral presentation. Following the original speeches, the parties shall be granted an opportunity to present brief replies in the same order. The President of the Court may permit a party represented by a representative in litigation to present his brief observations following the representative’s replies. 3. In their speeches, the parties shall explain their requests, the matters in dispute, the facts invoked, and any other arguments in support of the requests made. Wordiness shall be avoided and the argumentation shall be directed to the points in dispute or to matters that must be considered in order to clarify the issues. 4. The President of the Court shall chair the proceedings. The President may demand that a speaker does not stray from the substance of the litigation and that consideration is not given matters that are not in dispute or that otherwise do not merit further explanation. The President may halt the case presentation if a speech is of excessively long duration, or specify a time limit, and halt the case presentation when that limit is reached. 5. Following the case presentation the Supreme Court shall receive the case for adjudication.”
| 1
|
train
|
001-61819
|
ENG
|
MDA
|
CHAMBER
| 2,004
|
CASE OF SIRBU AND OTHERS v. MOLDOVA
| 4
|
Violation of Art. 6-1;Violation of P1-1;Inadmissible under Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Nicolas Bratza
|
6. The applicants, all of whom are Moldovan citizens, live in the Republic of Moldova. 7. The applicants are inspectors of the Chişinău Fire Department attached to the Ministry of Internal Affairs. 8. On 21 July 1994 the Government passed Decision No. 534-10, classified secret, which concerned the Ministry of Defence, the Ministry of National Security (Intelligence Service) and the Ministry of Internal Affairs. According to that Decision, among other things, the personnel of the above-mentioned institutions were entitled to a monthly allowance of approximately MDL 135 instead of the old allowance of MDL 7.06. This Decision was not published in the Official Gazette (Monitorul Oficial) and accordingly the applicants did not know about it. The applicants started to receive the increased allowance on 1 June 1995. They found out that their colleagues from other Ministries had been receiving the higher rate from 1 July 1994. 9. In June 1997 the applicants lodged an action with the Centru District Court against the Ministry of Internal Affairs seeking the payment of the increased allowance for the period July 1994 – June 1995. By a judgment of 1 August 1997 the Centru District Court awarded Mr Gheorghe Bragoi, Mr Alexandru Usatîi and Mr Iulian Guştiuc compensation of MDL 1,407 each. By another judgment of 18 August 1997 the Centru District Court awarded Mr Pavel Sîrbu and Mr Vitalie Cornovan compensation of MDL 1,407 each and Mr Petru Bragoi compensation of MDL 1,127.02. No appeals were lodged and the judgments became final. Enforcement warrants were issued. 10. On numerous occasions the applicants lodged complaints about the non-enforcement of the judgments of 1 August 1997 and 18 August 1997 with the Ministry of Justice. In its replies, the Ministry of Justice informed the applicants that the judgments could not be enforced due to the “lack of funds in the bank account of the Ministry of Internal Affairs”. 11. On 15 May 2003, after the cases were communicated to the Government, the judgments were executed by the Ministry of Internal Affairs. 12. The relevant provisions of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, stated: Article 336. The decisions of the courts and other authorities susceptible to enforcement The following are the acts which have to be enforced in accordance with the provisions of the present Code: 1) Civil law judgments, orders and decisions adopted by the courts... Article 338. The issuance of the enforcement warrant The enforcement warrant is issued by the court to the creditor, after the judgment has become final, except for cases of immediate enforcement, when the enforcement warrant is issued immediately after the delivery of the judgment. Article 343. The request to start the enforcement procedure The bailiff starts the enforcement procedure at the request of the persons enumerated in Article 5 of the present Code. In cases provided for in the second paragraph of this article, the bailiff starts the enforcement procedure following the judge’s order. Article 349. The supervision of enforcement of judgments The supervision of the correct and prompt enforcement of judgments is conducted by the Department of Judgment Enforcement of the Ministry of Justice.
| 1
|
train
|
001-66589
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,004
|
BOSKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 1
|
Inadmissible
|
Georg Ress;Mark Villiger
|
The applicant, Mr Ljube Boškoski, was born in 1960 in Tetovo in the former Yugoslav Republic of Macedonia. He has dual nationality: Macedonian and Croatian. His current place of residence is unknown. He is represented before the Court by Mr J. Arsov, a lawyer practising in Skopje. On 24 March 2004 the applicant applied to the State Electoral Commission (Државна Изборна Комисија) (hereinafter referred to as the SEC) to be listed as an independent candidate in the presidential elections in the former Yugoslav Republic of Macedonia. For that purpose he had collected 10,000 signatures of citizens in support of his candidacy. On 25 March 2004 the SEC rejected his application on the ground that the applicant did not satisfy the requirement in Article 80 § 5 of the Constitution governing the eligibility of candidates for presidential election. In particular, the applicant had not continuously resided in the former Yugoslav Republic of Macedonia for at least ten out of the previous fifteen years preceding the date of the election. The SEC found that on 14 September 1987 the applicant had informed the authorities that he was no longer resident in Skopje and had registered himself as resident in Rovinj in Croatia; he had continued residing in Croatia until 25 January 1999 (when he re-registered himself as resident in Skopje). Whereas the applicant's residence in Croatia between 14 April 1989 and 17 November 1991 was accepted as qualifying as domestic residence by the SEC pursuant to Article 132 of the Constitution (the latter date being the date the former Yugoslav Republic of Macedonia enacted its Constitution), his residence in Croatia between 17 November 1991 and 25 January 1999 was deemed foreign and not taken into account. The SEC calculated that in the previous fifteen years the applicant had resided in the former Yugoslav Republic of Macedonia for only seven years, nine months and twenty-two days. On 26 March 2004 the applicant challenged the rejection of his candidacy in the Supreme Court (Врховен Суд на РМ), alleging that the SEC had incorrectly calculated the overall length of his residence in the former Yugoslav Republic of Macedonia by an erroneous (restrictive) construction of Article 132 of the Constitution. According to him, his residence in Croatia after 17 November 1991 should have been deemed domestic residence by the SEC. First, the applicant maintained that neither the Constitution nor the Law on the Implementation of the Constitution (Уставен Закон за имплементација на Уставот на РМ), nor any other statute imposed a time-limit on the application of Article 132 of the Constitution, which is a transitional provision. Second, he maintained that Article 132 of the Constitution, as well as the other provisions of the Constitution and the relevant statutes, did not specify that the qualifying period of residence in the other republics of the Socialist Federal Republic of Yugoslavia would be restricted to the period before the Constitution was enacted or any other period. Since neither the Constitution nor the statutes regulated the manner or duration of the application of Article 132 of the Constitution, the applicant argued that the said provision should have been construed by the SEC in accordance with the human rights conventions and the 1978 and 1983 Vienna Conventions on the Succession of States, that is to say, broadly, not restrictively. He claimed that he could not be blamed for leaving the former Yugoslav Republic of Macedonia for Croatia in 1987 and staying there for a certain period of time following the disintegration of Yugoslavia, and had done so for economic reasons. Finally, the applicant alleged that he had been discriminated against in comparison to other candidates in the 1994 and 1999 presidential elections, namely, Mr. K. Gligorov in 1994 and Mr. V. Tupurkovski in 1999, whose candidacies had been upheld by a differently composed SEC. He alleged that the SEC had not applied the aforementioned provision in the same manner in their cases as in his. The applicant requested the Supreme Court to order the SEC to serve and disclose its decisions on the candidacies of Mr. K. Gligorov and Mr. V. Tupurkovski. On 27 March 2004 the Supreme Court dismissed the applicant's challenge, finding that the overall length of his domestic residence had been correctly assessed by the SEC. It held that the former Yugoslav Republic of Macedonia had declared its independence with the adoption of the Constitution on 17 November 1991, so that Article 132 of the Constitution could only be applied for the period prior to that date. It did not directly respond to the applicant's assertions or arguments. On 29 March 2004 the applicant petitioned the Constitutional Court (Уставен Суд на РМ) for an order quashing the decisions of the Supreme Court and the SEC on the basis of Article 50 § 1 and Article 110 § 3 of the Constitution. He called the petition a request for the protection of an electoral right (барање за заштита на избирачко право). Before the Constitutional Court, the applicant repeated the assertions he had made and arguments he had advanced before the Supreme Court, adding that his right to stand for election under Article 23 of the Constitution and Article 3 of Protocol No. 1 of the Convention had been violated. He also complained that he had not received a reasoned answer from the Supreme Court to his arguments. On the same date the applicant made an almost identical application to the Supreme Court, requesting it to adopt a common position on its decision of 27 March 2004 (and to set it aside) in a joint session of its three chambers. On 31 March 2004 the Constitutional Court rejected the applicant's petition as being incompatible ratione materiae. It held that the right to stand for election was not among the individual rights and freedoms referred to in Article 110 § 3 of the Constitution whose violation could be challenged in the Constitutional Court by way of individual petition. According to the Constitutional Court, the SEC and the Supreme Court had exclusive jurisdiction to protect the right at issue pursuant to Article 10-e of the Law on the Election of the President of the Republic. In addition, the Constitutional Court held that it had no jurisdiction to review the complaint under Article 3 of Protocol No. 1 to the European Convention of Human Rights. The Constitutional Court reached its decision without a hearing. It is not clear whether the Supreme Court acted upon the applicant's request for the adoption of a common position and an order setting aside its decision of 27 March 2004. The applicant was deprived of the possibility to stand as a candidate in the elections. The elections took place on 14 and 28 April 2004. Article 79 of the Constitution (Устав на Република Македонија) stipulates that the President of the Republic is a Commander-in-Chief of the Armed Forces of the former Yugoslav Republic of Macedonia. Article 84 of the Constitution (Устав на Република Македонија) lists the discretionary powers of the Head of the State. The President of the Republic has power to: (1) nominate an appropriate person to form the Government; (2) appoint and/or dismiss by decree ambassadors and other diplomatic representatives of the former Yugoslav Republic of Macedonia abroad; (3) accept the credentials and letters of recall of the foreign diplomatic representatives; (4) propose two candidates to sit as judges in the Constitutional Court; (5) propose two candidates for membership of the Republic's Judicial Council; (6) appoint three members to the Security Council of the former Yugoslav Republic of Macedonia; (7) propose candidates for membership of the Council for Inter-Ethnic Relations; (8) appoint and/or dismiss other holders of state and public office determined by the Constitution and the law; (9) grant decorations and honours; (10) grant pardons; and (11) perform other duties determined by the Constitution. Article 90 § 1 of the Constitution provides that the President of the Republic is obliged, within 10 days of the formation of the Assembly, to entrust the mandate for forming the Government to a candidate from the party or parties with a majority of seats in the Assembly. Article 75 §§ 1 and 2 of the Constitution stipulates that statutes are declared by decree (promulgation), signed by both the President of the Assembly and the President of the Republic. Article 75 § 3 of the Constitution provides that the President of the Republic may refuse to sign a decree declaring a statute to be in force. His right to veto the declaration of the laws is only provisional since the same provision stipulates that should the Assembly re-adopt the statute by a majority vote of the total number of its representatives, the President of the Republic shall be bound to sign the decree. Article 75 § 4 of the Constitution provides that the President shall have no right to refuse to promulgate those statutes which, under the Constitution, may only be adopted by a two-thirds majority vote of the total number of the representatives of the Assembly. Article 63 §§ 1, 3 and 4 of the Constitution provides, inter alia, that the representatives of the Assembly are elected for a term of four years and that the new elections are to be held within the last 90 days of the term of the current Assembly. The term of office of the representatives may be extended only during a state of war or an emergency. Article 63 § 7 of the Constitution stipulates that the Assembly is to be dissolved when more than half of the total number of its representatives vote for dissolution. Article 71 § 1 of the Constitution provides that the right to propose a bill is given to every Representative of the Assembly, to the Government and to a group of at least 10,000 voters. Article 71 § 2 specifies that an initiative for adopting a law may be submitted to the authorised bodies by any citizen, group of citizens, institution or association. Article 90 § 3 of the Constitution stipulates that the Government shall be elected by the Assembly on the proposal of the person nominated by the President of the Republic, and on the basis of the programme, by a majority vote of the total number of Representatives of the Assembly. Article 92 of the Constitution provides, inter alia, that the Government and each of its members shall be accountable to the Assembly which may take a vote of no-confidence in the Government. Article 93 of the Constitution provides, inter alia, that the Government has the right to submit its resignation.
| 0
|
train
|
001-78261
|
ENG
|
POL
|
ADMISSIBILITY
| 2,006
|
ADAMCZYK v. POLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Grzegorz Adamczyk, is a Polish national who was born in 1961 and lives in Zawiercie. In January 2001 the applicant’s car was seized by the police in connection with criminal proceedings instituted against him on charges of alleged forgery of the car’s registration numbers. On 26 March 2002 the applicant was acquitted of the charges, the court having found, in the light of expert opinions, that there were no grounds on which to find that the car’s registration numbers had ever been tampered with. In April 2002 the car was returned to the applicant. Having established that the car’s condition had deteriorated during the period when it had been seized by the police, he lodged a compensation claim against the prosecuting authorities who had dealt with his case. The applicant claimed PLN 1,800 [EUR 450] as compensation. The statement of claim read as follows: “The defendant State Treasury seized the car concerned in the present case (...) owned by the applicant. Evidence: The seizure orders of 9 and 15 January 2001. The plaintiff twice requested the defendant to lift the unlawful seizure order, which was eventually done on 24 April 2002 on the strength of an order of the Disctrict Court of 11 April 2002 given in the pursuance of the enforcement of the final judgment of that court of 26 March 2002. Evidence: The summonses of 27 February and 4 May 2001; judgment of the Zawiercie District Court (...) and the order of 11 April 2002. As a result of the plaintiff having been deprived of the use of the car and its having been parked on an open car-park for fourteen months, the car was irreparably damaged which reduced its value by PLN 1,800. A detailed description of the damage is to be found in the attached expert opinion of 24 April 2002, Ref. No. 1552/06/CRM/02.” The applicant attached two expert opinions to his statement of claim: the opinion Ref. No. 1552/06/CRM/02 and another one, from which it appeared that the car’s market value had diminished, from January 2001 to April 2002, from PLN 3,600 (appr. 895 EUR) to PLN 700 (appr. 174 EUR). The defendant State Treasury, represented by the prosecutor’s office, in its pleadings requested that the action be dismissed in its entirety. It argued, inter alia, that before the seizure the car had already been parked for several months in conditions similar to those at the car-park where it had been parked after the seizure. No description of the car’s condition at the date of the seizure had been prepared, which called into question the plaintiff’s conclusion that the car had been damaged after that date. On 12 December 2003 the Częstochowa District Court dismissed his action. The written grounds of the judgment, insofar as relevant, read as follows: “On 9 January 2001 police officers of the Zawiercie County police station seized a car owned by the plaintiff. (...) they established that the registration number on the car’s chassis had been tampered with. By a decision of the same date investigations were instituted. Minutes of the seizure were drawn up without providing a detailed description of the car’s technical condition. On 15 January 2001 the prosecutor of the Zawiercie District confirmed the seizure, finding, in the light of available evidence, that it was justified. (...) Subsequently, by a decision of 18 January 2001(...) the car was declared to be material evidence in the case and it was put in a supervised car-park. (...) On the same date the Zawiercie County Police Station admitted evidence from an expert opinion. Subsequently, the Forensic Laboratory of the Silesian Police examined the car and submitted, on 21 February 2001, its opinion. It transpired therefrom that the car had its original numbers. [However] a part of the car’s bodywork on which these numbers were fixed had characteristics indicating that it had been placed on the car after it had been produced. As a result of these findings, on 11 May 2001 the Zawiercie District Prosecutor filed a bill of indictment against the plaintiff, charging him with an offence punishable under Article 270 § 1 of the Criminal Code in that the original numbers had been tampered with in such a way that a part of the bodywork had been taken off a car of the same make and fixed to the applicant’s car. During the criminal proceedings the Forensic Office in Katowice gave an opinion BB 2183/01 of 15 February 2002 in which it established that the car in question had its original identification numbers and that there were no indications that these had been tampered with. By a judgment of 26 March 2002 the Zawiercie District Court acquitted the applicant of the charge and ordered that the seized car be returned to him. No appeal had been lodged against this judgment. By a decision of 11 April 2002 the enforcement of this judgment was ordered and on 19 April 2002 the applicant collected the keys of the car. (...) the plaintiff claimed compensation for, in his opinion, unjustified and unlawful seizure of the car, for the fact that he could not use it and for the reduction in the car’s value caused by the fact that it had been parked in an open car-park. He referred to Article 77 of the Constitution. (...) The liability of the State for damage caused by its agents is governed by Article 417 of the Civil Code. The prosecutor, under § 2 of this provision, is a State agent. (...) The State Treasury is to be liable for damage caused by a State official in the course of carrying out the duties entrusted to him or her if he or she was at fault for the actions or omissions concerned and when a normal causal link can be established between such acts or omissions and the damage sustained. The fault of the State official is a necessary condition for the State’s liability in tort to arise. If such a liability is to arise, the State agent must be at fault for his acts, which also means that his or her conduct must be wrongful. The wrongfulness of the agent’s conduct is to be understood in such a way that it is at variance with the legal order, i.e. in breach of applicable provisions of law and also contrary to universally accepted principles of community life. For the assessment of the fault of the State agent Article 355 of the Civil Code, which obliges the debtor to act with due diligence, is also relevant. Hence, in the present case for a finding of the State’s liability it is necessary to establish that the conduct of the agent concerned, i.e. the prosecutor of the Zawiercie prosecuting office, was wrongful and that he was at fault. In the court’s opinion, there are no grounds on which such a finding can be made. The actions of the prosecutor were taken pursuant to valid provisions of procedural law. He had recourse to his competences laid down by law. It cannot be said that his conduct was unlawful, either when he confirmed the seizure of the car, or when he filed the bill of indictment against the plaintiff with the court. The prosecutor undertook these steps on the basis of the material obtained in the case, including the expert opinion prepared during the investigations. His conduct cannot be deemed to have been wrongful. Not every acquittal of an accused must necessarily lead to the liability of the State for the acts of the prosecutor involved in the case. For such liability to arise it is necessary to make a finding of the agent’s fault. The fact that certain decisions given in the proceedings are erroneous because, for instance, the agent erred in the assessment of facts, does not by itself give rise to liability. It must be taken into consideration that the expert opinion prepared during the judicial proceedings in the present case fundamentally differed from the opinion prepared for the purposes of the investigations. There are no grounds on which to find that the prosecutor failed to act diligently in the conduct of the case. As regards the conditions in which the car was stored during the time of seizure, it has to be noted that it was effected in compliance with applicable provisions. The car had been parked in a supervised car-park. The plaintiff has failed to show that during that time his car was damaged, or to establish what was the car’s technical condition at the date of its seizure. In particular, he failed to show that the damage resulted from any wrongful conduct on the part of State agents. Consequently, his action had to be dismissed.” The applicant appealed. On 25 May 2004 the Częstochowa Regional Court dismissed his appeal. The court first recalled the background of the proceedings. It summarised the applicant’s appeal in the following way: “In his appeal the plaintiff argued that the first-instance judgment was in breach of Article 77 of the Constitution as well as of Article 417 of the Civil Code. (...) He argued that it was not open to any doubt, in the light of legal writing and case-law, including that of the Constitutional Court, that when damage was caused by a public official, the fact that damage occurred was sufficient for civil liability to arise – see the judgment of the Constitutional Court SK 26/03. In his submission, the arguments advanced by the first-instance court concerning fault, due diligence and unlawfulness were in breach of the Constitution and amounted to a clumsy polemic.” The grounds for the judgment further read: “The plaintiff’s appeal cannot be allowed. The opinion of the District Court that Article 417 of the Civil Code constitutes the legal basis for the plaintiff’s claim must be shared; however, it cannot be interpreted without Article 77 of the Constitution being taken into account. Article 417 of the Code reads as follows: (See Relevant domestic law). Its analysis must lead to a conclusion that the civil liability of the State agent is dependent on provisions of law having been breached and is independent of the agent’s fault. In the light of Article 77 of the Constitution, [an interpretation used by civil courts before the judgment of the Constitutional Court of 4 December 2001which made the agent’s fault a constitutive requirement for the State’s liability to arise] is inadmissible. The Constitution in its Article 77 clearly indicates that the organs of the State are obliged not to act in breach of law; consequently, the liability of the State is independent of the fault of the agent. In the opinion of the Regional Court the objective unlawfulness of the acts of public officials is a sufficient premise for the liability of the State to arise. The Regional Court is in disagreement with the opinion expressed by the District Court that the fault of the State agent was material for the finding of the State’s liability. However, it transpires from the findings made by that court that the prosecutor had been acting in compliance with applicable procedural provisions. When acting [during the criminal procedure] he had been making use of his competences. He had been acting within limits as defined by law and had not breached it, which excludes the State’s liability. Consequently, the appeal had to be dismissed.” 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 which is contrary to law.” Articles 417 et seq. of the Civil Code (Kodeks cywilny) of 1964 provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1 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.” According to the old case-law of the Polish Supreme Court, a plaintiff seeking damages under Article 417 of the Civil Code had to show that the act in question was unlawful and that the State agent had committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished). Under the former Article 418 of the Code, if damage was caused by the State official as a result of his/her giving a decision or other official act, the State Treasury was liable only if the giving of the said decision amounted to an infringement of laws punishable under criminal law or under any disciplinary regulations, and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise recognised by a superior authority. 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. 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 do so, 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 shall apply to all events and legal situations that subsisted before that date. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) gave a judgment in respect of two constitutional complaints in which the applicants challenged the constitutionality of Articles 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 insofar as they guaranteed access to court and a right to compensation for damage caused by acts of public authorities. In its judgment the Court 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 made the award of compensation for such damage dependent on the personal culpability of the State official concerned, established in criminal or disciplinary proceedings. This restriction on access to a court, in the opinion of the Constitutional Court, put excessive obstacles in the way of an individual’s right to have damage caused by actions of public authorities compensated. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 of the Civil Code was repealed. Pursuant to Article 217 § 1 of the Code of Criminal Procedure, objects to be used as evidence in a criminal case or for the purposes of securing the payment of fines, can be seized by the police or by the prosecuting authorities.
| 0
|
train
|
001-100661
|
ENG
|
AZE
|
CHAMBER
| 2,010
|
CASE OF KERIMOVA v. AZERBAIJAN
| 3
|
Violation of P1-3;Pecuniary damage and non-pecuniary damage - award
|
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
5. The applicant was born in 1941 and lives in Baku. 6. She stood for the elections to the Milli Majlis (Parliament) of 6 November 2005 as a candidate of the opposition bloc Azadliq. She was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the singlemandate Sumgayit Second Electoral Constituency no. 42. 7. The constituency was divided into thirty-seven electoral precincts, with one polling station in each precinct. There were a total of fifteen candidates running for election in this constituency. 8. At the end of election day, the applicant obtained copies of the election protocols drawn up by each of the thirty-seven Precinct Electoral Commissions (“the PEC”). According to the copies of the PEC protocols in the applicant's possession, she received the largest number of votes in the constituency. Specifically, she received a total of 5,566 votes. The second highest number of votes, 3,922 votes in total, was received by a candidate from the ruling Yeni Azerbaijan Party (H.). The applicant received the highest number of votes in thirty polling stations, while H. received the highest number of votes in seven polling stations. 9. According to the ConEC protocol drawn up on 7 November 2005 following an official tabulation of results received from the precincts, the applicant obtained the highest number of votes cast in the constituency. Specifically, according to the ConEC protocol, the applicant received 5,350 votes, H. received 4,091 votes, and a third candidate received 1,532 votes. The total number of votes cast for each of the remaining candidates was substantially lower. The ConEC protocol indicated the applicant as “the elected candidate”. 10. On 8 November 2005 the Central Election Commission (“the CEC”) issued a decision invalidating the election results in Sumgayit Second Electoral Constituency no. 42. The decision, in its entirety, stated as follows: “Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides: 1. To invalidate the election results in Polling Stations nos. 1, 3, 4, 5, 8, 11, 16, 17, 18, 19, 20, 21, 23, 24, 32, and 36 of Sumgayit Second Electoral Constituency no. 42 due to impermissible alterations [“yolverilməz düzəlişlər”] made in the PEC protocols of these polling stations as well as infringements of law [“qanun pozuntuları”] which made it impossible to determine the will of the voters. 2. To invalidate the election results in Sumgayit Second Electoral Constituency no. 42 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency. 3. To forward the relevant materials concerning this electoral constituency to the Prosecutor General's Office for investigation.” 11. On 11 November 2005 the applicant lodged an appeal against this decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. While the CEC decision noted that “impermissible alterations” had been made to the protocols of sixteen PECs, in reality such alterations had been made to the protocols of only five PECs (in Polling Stations nos. 8, 10, 11, 21 and 24). The applicant noted that this conclusion could be arrived at by simply comparing the ConEC protocol with the copies of the PEC protocols in her possession. She further noted that, on each occasion, the alterations had been made to reduce the number of votes cast in her favour and to increase the number of H.'s votes. Even though these falsifications were directed against the applicant, she was still the winner according to the falsified results announced by the ConEC. 12. As to the alterations made in the remaining eleven PEC protocols, the applicant argued that they were of a technical nature and did not affect the number of votes cast for each candidate. Therefore, those alterations could not impede the determination of the will of the voters. 13. The applicant further complained that the CEC had failed to consider the possibility of ordering a recount of the votes as required by Article 108.4 of the Electoral Code and to summon her as the candidate and hear her explanation as required by Article 112.8 of the Electoral Code. 14. Lastly, the applicant noted that the ConEC protocol had been submitted to the CEC on the night of 7 to 8 November 2005 and the issue of invalidation of the election results had been put immediately on the CEC agenda on 8 November. As a result, due to lack of time, some CEC members had received incomplete or misleading information about the matter and had thus made an uninformed decision. 15. During the hearing held on 14 November 2005, the judges of the Court of Appeal refused to independently examine the originals of the PEC and ConEC protocols. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful. 16. The applicant lodged a cassation appeal. Apart from the arguments advanced in her appeal before the Court of Appeal, she also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence (the originals of the relevant election protocols) and had simply taken the CEC's findings as fact. 17. On 25 November 2005 the Supreme Court rejected the applicant's appeal and upheld the Court of Appeal's judgment as lawful. 18. Subsequently, it was decreed to hold repeat elections in all constituencies in which the election results had been invalidated. There were a total of ten such constituencies. It appears that, owing to certain opposition forces' decision to boycott the repeat elections, the applicant did not stand for election in the repeat elections held on 13 May 2006. 19. In the meantime, criminal proceedings were instituted against the ConEC chairman and the chairman of the PEC of Polling Station no. 17, for tampering with the official PEC protocols of a total of nine different polling stations (Polling Stations nos. 1, 5, 8, 11, 17, 19, 20, 21 and 24). 20. On 19 January 2006 the Sumgayit City Court convicted both the defendants under Articles 161.1 (falsification of election documents) and 308.1 (abuse of official power) of the Criminal Code. The first defendant was fined in the amount of 110 new Azerbaijani manats (approximately 100 euros) and was banned from holding office in the electoral administration. The second defendant was sentenced to one year and twenty-eight days' corrective labour, with 15% of his earnings to be withheld in favour of the State. 21. The factual findings in the Sumgayit City Court's judgment, based on the defendant's own confessions and several witness statements, revealed that the majority of falsifications in the PEC protocols had been made at the ConEC level by its chairman, after the submission of the protocols to the ConEC. These falsifications were made in favour of either H. or other candidates, but not the applicant. 22. In particular, during the hearings, the first defendant, the ConEC chairman, confessed that he had tampered with the PEC protocols for eight polling stations. In particular, he altered the figures representing the total vote count of various candidates in each polling station by inserting additional numbers or changing the existing numbers. In this manner, he increased the number of votes for at least five candidates other than the applicant (including H., to whose vote count he added 100 more “votes”), and reduced the number of votes received by the applicant (by 100 “votes”). 23. The second defendant, the PEC chairman, confessed to having tampered with the PEC protocol for his polling station in a similar manner, with the aim of increasing the total vote counts of three candidates who were the applicant's opponents. 24. After the count of votes in a polling station at the end of the election day, the PEC draws up an election protocol (in three original copies) documenting the results of the vote in the polling station (Articles 106.1106.6). One copy of the PEC protocol, together with other relevant documents, is then submitted to the relevant ConEC within 24 hours (Article 106.7). The ConEC verifies whether the PEC protocol complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC protocols, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a protocol reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC protocol, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC protocols comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final protocol reflecting the results of the elections in all constituencies (Article 108.2). 25. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in protocols (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4). 26. Upon review of a request to invalidate the election win by a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8). 27. In case of discovery of irregularities aimed at assisting candidates who have not ultimately been elected, such irregularities cannot be a basis for invalidation of election results (Article 114.5). 28. The ConEC or CEC may invalidate the election results in an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2). 29. According to former Article 106.3.6 of the Electoral Code in force at the material time, during the initial vote-counting at a polling station at the end of election day, upon discovery in the ballot-box of a voting ballot which had not been properly placed in the corresponding envelope, the vote on that ballot was considered to be invalid. Article 106.3.6 was subsequently repealed on 2 June 2008. 30. The relevant excerpts from the report read as follows: “Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately. Protocols from two constituencies, 9 and 42, were never posted publicly. ... The CEC invalidated the results of four constituencies [including Sumgayit Second Electoral Constituency No. 42] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ... At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance. The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General's Office regarding 29 PECs. ... The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent. The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ... Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved. Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ... The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. Opposition candidates appealed the CEC's invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General's office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline. The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ... Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.”
| 0
|
train
|
001-105275
|
ENG
|
POL
|
CHAMBER
| 2,011
|
CASE OF KANIA AND KITTEL v. POLAND
| 3
|
No violation of Art. 10
|
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
|
5. On 23 August 1997 the daily newspaper Super Express published a number of articles written by the applicants. On the cover page the newspaper published a title, covering nearly half of the page. It read “The Warsaw prosecuting authorities confirm: the Minister took” (“Warszawska prokuratura ustaliła: Minister wziął”), and underneath there was a photograph of a Mitsubishi Pajero with information that the price of the most expensive version was over 100,000 United States dollars (USD) and then a paragraph stating that Minister M.S., who was at that time the head of the National Security Office, had accepted such a car as a gift from the businessman W.W. The paragraph read: Minister M.S., the Head of the National Security Office, received from businessman W.W. a luxury car. The case came to light because the Mitsubishi Pajero, worth over 100,000 USD, was [subsequently] stolen. The head of the Mokotów prosecutor’s office, Z Ż., has confirmed that M.S. had been “using” that car. Minister [M.]S. did not want to talk to us about the car from the businessman.” On the same front page the editor published a note, accompanied by a photograph of M.S.: “Sir, as you have refused to give us an interview about the car which you received from W.W., you are requested, in accordance with the Press Act, to answer the following questions: 1. Why did you accept a gift from W.W. in the form of a luxury car? 2. For how long did you use it? 3. Do you think it is correct for a State agent to accept for use a car owned by a businessman? 4. Were you not afraid that accepting that gift amounted to contracting a debt towards him which you would be obliged to pay back in the future?” On the third page an article signed by both applicants was published, entitled “S. used” (“S. używał”). Its leading paragraph read: “The presidential minister and Head of the National Security Office does not want, at least for the time being, to explain why he has accepted an expensive car from a Polish businessman with a Swedish passport. The article went on: “W.W., a well-to-do businessman with a Swedish passport, is the official owner of a car which was stolen from S. ... He has extensive contacts with politicians. He emphasises his close relationship with the President, Aleksander Kwaśniewski. ... On 4 February the Minister’s driver was driving the car to have it washed. When he stopped at traffic lights at Ursynowska Street in Warsaw, the car door was opened by a masked man who hit the driver in the face with a pistol he was holding and threw him out of the car onto the tarmac. Then he drove away, the tyres screeching. The Warsaw prosecuting office started an investigation. Witnesses have stated that M.S. had used the Mitsubishi – prosecutor Z. Z. has told us: ‘We discontinued the investigation in April as we could not identify the perpetrator.’ When Super Express spoke with him, W.W. lied. He tried to explain that he could not remember events which had taken place several months ago and told us that M. S. had never so much as sat in that car. ‘It was the driver who was my friend. And I did not know that he worked as [M.]S.’s driver’, he said. ‘[M.]S. himself never set foot in that car. ... ‘I don’t remember what the car’s documents stated’, he added, ‘I have no more time to talk’. M.S. told us, via his secretary, that he did not have anything to say about the Mitsubishi.” 6. On 29 September 1997 M.S. brought a civil action in the Warsaw Regional Court requesting legal protection of his personal rights. He requested that the defendants be ordered to cease publishing allegations that the plaintiff had accepted an expensive car as a gift, that the newspaper publish an apology, and that damages of PLN 300.000 be awarded to him, which he undertook to pay to a charity. 7. On 23 February 2001 the Warsaw Regional Court partly allowed the plaintiff’s claim. It ordered the applicants and the editorinchief to publish an apology on the cover page of their newspaper for having published the untrue information that the plaintiff had accepted an expensive gift, which was to be worded as follows: “The editors and authors of the articles entitled “[t]he Minister took” and “[M.]S. remains silent” apologise for publishing the untrue information that he had accepted an expensive car as a gift”. It further determined the exact size of the apology. The court also ordered the applicants to pay, jointly with the newspaper’s publisher and the editor in chief, 10,000 Polish zlotys (PLN) as compensation for the nonpecuniary damage he had suffered. The defendants were also ordered to pay, jointly, PLN 1,600 in court fees. 8. During the proceedings the court questioned the applicants and the plaintiff. The court heard W.W. and D.Z., who had been driving the car on the day of the theft, as witnesses. The court had regard to the case file of the investigation into the theft of the car which had been conducted by the Warsaw-Mokotów District Prosecutor; to an authorisation to use the car from 15 January until 13 March 1997 which W.W. had drawn up for the plaintiff; and to a car insurance policy which he had had taken out in the plaintiff’s name for that period. 9. The court found that W.W. and the plaintiff had planned to go to Austria together for a skiing holiday. As W.W. had had to fly to the US for business purposes shortly before the holiday, it had been agreed that the plaintiff would take his car and drive it to Vienna where they would meet. W.W. had arranged for insurance for the plaintiff and prepared a document to the effect that he was authorised to use the car from 15 January to 15 March 1997. The plaintiff had taken the car from W.W. at the beginning of February. Subsequently, on 4 February 1997, when the plaintiff’s driver had been driving the car to have it washed, he had been attacked at traffic lights and the car had been stolen from him. An investigation concerning the theft was subsequently instituted by the District Prosecutor. 10. The court noted the steps which the applicants had taken when gathering the material for the article. The first applicant had become aware of the theft of the car in February 1997. On 6 February 1997 she had published a short article about it. Later on she had contacted the prosecuting authorities requesting information about the progress of the investigation. She had also contacted the President’s Chancellery, where the plaintiff was working at that time, and requested to be given an interview concerning the theft. She was informed that the plaintiff would not give an interview on that subject. In July 1997 the second applicant had started working on the case. He had interviewed W.W. and D.Z. The court noted that W.W. had given very evasive answers to the questions. 11. Nonetheless, the court was of the view that the available evidence indicated that the car had indeed been given to the plaintiff for use for a limited period of time. There was no indication that the car had been accepted as a gift. The relevant evidence given by the plaintiff, W.W. and D.Z. was fully coherent. 12. The court therefore accepted that there was nothing to suggest that the circumstances in which the plaintiff had come into the possession of the car indicated corruption. The court emphasised that he should not have avoided the journalists as it was his responsibility as a public official to ensure that his acts were transparent. It also noted that the newspaper had published the articles only after he had refused to provide information concerning the car. The court accepted the defendants’ assertion that they had been acting in the general interest and had wished to elucidate the circumstances surrounding the use of the car by the plaintiff. However, this motivation did not exempt them from the legal obligation to respect personal rights. They were obliged to act with diligence when gathering and publishing information. The court accepted that the defendants had complied with this obligation when gathering material and information concerning the use of the car. They had had recourse to all the relevant sources. 13. However, the court could not endorse the defendants’ conduct, having regard, firstly, to the titles of the articles. The title on the cover page, taking up almost half of it, insinuated that the plaintiff had taken a bribe and that the Warsaw prosecuting authorities had conducted an investigation in this regard. The suggestion, obvious to any reader, was not borne out by the facts and was not compatible with the information which the newspaper had received from the prosecuting authorities or from any other source. Secondly, the same suggestion was made in the questions published on the first page. Neither the title nor the questions corresponded to the actual content of the article concerning the car published on the third page. This allegation, which had not been based on any facts, had breached the plaintiff’s personal rights. 14. The court further considered that the amount of damages sought by the plaintiff was clearly excessive. However, as his personal rights had been breached, it considered that an amount of PLN 10,000 was appropriate in the circumstances as it was more than merely symbolic. 15. The applicants appealed. They submitted that the court had wrongly found that the contested articles had suggested that M.S. had accepted a bribe and that the prosecuting authorities had conducted an investigation into the matter. They further argued that the first-instance judgment had breached Articles 54 and 61 of the Constitution and Article 10 of the Convention. They averred that the court had failed to take into consideration the standards set in the Court’s case-law. They referred to the judgments given in the cases of Jersild v. Denmark, 23 September 1994, Series A no. 298, and Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313. As to the scope of the protection afforded to the private lives of politicians, they invoked the Court’s judgment in the case of Lingens v. Austria, 8 July 1986, Series A no. 103. They were further of the view that the court had erred in finding that they had failed to act with diligence when formulating the title for the article. It had clearly been formulated in a manner compatible with journalistic freedom. 16. On 13 November 2002 the Warsaw Court of Appeal dismissed the appeal. It agreed with the first-instance court that the text published on the cover page, including its title, had clearly suggested that the plaintiff had been suspected of corruption, that the prosecuting authorities had conducted an investigation concerning charges of corruption, and that the charges had proved well-founded. The court’s findings in this respect were correct: this was indeed an impression which any reasonable reader might form, while it was clearly not borne out by the facts as established by the applicants. Likewise, the lower court’s conclusion that the text on the third page did not balance the impact of the text on the front page was correct. 17. The appellate court accepted the applicants’ argument that they had been motivated by the protection of the general interest and by their obligation to inform the public of issues of such interest. It held that they had exercised their freedom of expression protected by Article 10 of the Convention. Under this provision, politicians had to take into account that the limits of acceptable criticism were wider in respect of their acts. However, this freedom was not unlimited; it went hand-in-hand with certain obligations and restrictions. It was for the purpose of the effective protection of such rights that journalists were obliged to act with particular diligence; journalistic freedom could not be seen as conferring on journalists a right to act recklessly or arbitrarily. They had to check the veracity of the information which they intended to publish. 18. In the present case the information on the front page insinuated not only that the plaintiff had accepted the expensive car as a gift from W.W., but also that the plaintiff had been suspected of taking bribes, and that the prosecuting authorities had conducted an investigation into the matter and found that suspicion well-founded. That was not true. The conclusions of the lower court concerning the possible assessment of the information published on the cover page and the text on the third page by the readers were well-founded and logical and had to be upheld. 19. The applicants appealed, essentially reiterating their arguments and indicating that Article 10 of the Convention and the Court’s case-law should be used as the frame of reference for the legal assessment of the case. 20. On 20 February 2004 the Supreme Court dismissed their cassation appeal, essentially sharing the conclusions of the appellate court. In so far as the applicants complained that the appellate court had failed to address their arguments based on the Court’s case-law concerning Article 10 of the Convention, the Supreme Court acknowledged that they were right to emphasise the importance of the right to the freedom of expression in a democratic society as interpreted by the Court. Any restrictions imposed on the exercise of that right had to be closely scrutinised. It referred to the case-law of the Court and reiterated that criticism in respect of politicians and their views and actions was acceptable in the context of a democratic society, even where it took the form of violent attacks, exaggeration or even provocation. However, these principles had always to be applied and fine-tuned in the context of concrete factual circumstances. In the present case, the applicants’ interest the public character of the plaintiff’s function, was fully justified. Their diligence in gathering relevant information was not open to any criticism. It was only at the stage where they wrote and published the articles concerned that they had demonstrated negligence. Nothing in the material which they had gathered justified a conclusion that the plaintiff had received the car as a gift. This insinuation, placed on the first page of the newspaper, had clearly overstepped the limits of acceptable journalistic exaggeration. 21. The Supreme Court further held that the newspaper’s editor-in-chief could not be held responsible as at the time when the articles had been published she had not been carrying out this function, and it dismissed the claim in so far as it had been directed against her. 22. Article 14 of the Constitution, adopted in 1997, provides as follows: “The Republic of Poland shall ensure freedom of the press and other means of social communication.” 23. Article 54 of the Constitution reads: “1. The freedom to express opinions and to acquire and disseminate information shall be secured to everyone. 2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.” 24. Article 61 of the Constitution, in so far as relevant, provides: “1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs, and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury. 2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings. 3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security, or important economic interests of the State.” 25. Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads: “The personal rights of an individual, such as, in particular, the rights concerning health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions.” 26. Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. Where an infringement has taken place the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court.
| 0
|
train
|
001-83995
|
ENG
|
UKR
|
CHAMBER
| 2,007
|
CASE OF KACHANOV v. UKRAINE
| 4
|
Violation of Art. 6-1
|
Peer Lorenzen
|
4. The applicant was born in 1960 and lives in Shakhtаrsk, the Donetsk region. 5. On 20 October 2000 the Shakhtаrsk City Court (Шахтарський міський суд Донецької області) awarded the applicant 4,815.28 hryvnyas (UAH) in salary arrears and compensations from his former employer, the Municipal Communal Service Department (“the Company,” Шахтарське міське госпрозрахункове управління комунального господарства). 6. This judgment was not appealed against, became final and the enforcement proceedings were instituted to collect the judgment debt. 7. On 7 April 2003 the Company was declared bankrupt and subsequently liquidated. 8. The applicant unsuccessfully attempted to seek compensation from the Bailiffs for their failure to enforce the judgment. 9. The judgment remains unenforced to the present date. 10. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19).
| 1
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train
|
001-69835
|
ENG
|
RUS
|
CHAMBER
| 2,005
|
CASE OF GRINBERG v. RUSSIA
| 4
|
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award
|
Christos Rozakis
|
8. The applicant was born in 1937 and lives in Ulyanovsk. 9. On 6 September 2002 the Guberniya newspaper published a piece written and signed by the applicant. The entire text of the piece, entitled “[My] statement” («Заявление»), read as follows: “The voting ballots were still being counted, but it was already clear that General V.A. Shamanov had been elected Governor of the Ulyanovsk Region. That very night he made the following verbatim statement: 'Let me tell you bluntly and frankly – the local press has to be dealt with thoroughly'. During his electoral campaign General [Shamanov] made many promises to the residents of Ulyanovsk. But, in my opinion, he has kept only one: [he is] 'waging war' against the independent press, against journalists. The judicial proceedings in Shamanov's action against the highly talented Ulyanovsk journalist Dyomochkin are still pending. But the criminal prosecution of a journalist is exceptional. Yulia Shelamydova, editor-in-chief of the Simbirskiye Izvestia newspaper, has been sentenced to one year of correctional labour. Let us leave aside the legal aspects of that case: the full text of the court judgment has not yet been published and I hope there will be many more judicial proceedings, not only in Ulyanovsk, but also in Moscow. But there is a moral dimension to this case. How can three robust men, of whom two are Generals and one is a Hero of Russia, wage a battle against a woman who is still a young girl! This brings to mind Shamanov's support for Colonel Budanov, who killed a 18-year-old [Chechen] girl. No shame and no scruples!” (“Еще шел подсчет голосов, но было уже ясно: губернатором Ульяновской области избран генерал Шаманов В.А. Этой же ночью он заявил буквально следующее: «С местной прессой, прямо и откровенно скажу, предстоит детально разобраться». Во время избирательной кампании генерал обещал ульяновцам много. Но выполнил, с моей точки зрения, только одно: «воюет» с независимой прессой, с журналистами. Еще продолжаются суды по иску Шаманова В.А. к талантливейшему журналисту – ульяновцу Демочкину Г.А. Но преследование журналиста в уголовном порядке – это уникальный случай. Юлия Шеламыдова – главный редактор газеты «Симбирские известия» - осуждена на год исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого дела: еще не опубликован полный текст решения суда, по этому поводу будет, надеюсь, еще много судов, причем не только в Ульяновске, но и в Москве. Но есть моральный аспект в этом деле. Как могут три здоровых мужика, из которых два – генерала, в том числе один – даже герой России, «воевать» с женщиной, более того – с молоденькой девчонкой! Почему-то вспоминается поддержка Шамановым В.А. полковника Буданова, убившего 18-летнюю девушку. Ни стыда, ни совести!”) 10. On 10 September 2002 Mr Shamanov brought a civil defamation action against the applicant, the editor's office and the newspaper's founder – the Fund for Assistance to Disenfranchised Communities Goryachev-Fond (“the Fund”). He claimed that the assertion alleging that he had no shame and no scruples was untrue and damaging to his honour and reputation. He sought 500,000 roubles ((RUR), approximately 20,000 euros (EUR)) in compensation for non-pecuniary damage. 11. On 14 November 2002 the Leninskiy District Court of Ulyanovsk found for the plaintiff. The court held as follows: “In the article the author asserts that Shamanov, Governor of the Ulyanovsk Region, has no shame and no scruples. The very tenor of the article confirms that the contested statements contain precisely such an assertion. [The applicant's] assertion in this article that the plaintiff has no shame and no scruples is clearly damaging because it impairs his honour, dignity and professional reputation... The [applicant] did not produce before the court any evidence showing the truthfulness of that statement about the plaintiff...” The court ruled: “... the statement to the effect that the plaintiff has no shame and no scruples, published in [the applicant's] piece... [is] untrue and damaging to Shamanov's honour, dignity and professional reputation”. 12. The court held the Fund liable for RUR 5,000 (EUR 200) and the applicant liable for RUR 2,500 (EUR 100) in respect of non-pecuniary damage to the plaintiff. The Fund was also ordered to publish, by way of rectification, the operative part of the judgment. 13. The applicant and the Fund lodged an appeal. The applicant pointed out that the District Court had failed to distinguish “opinions” from “statements”. He submitted that his right to hold and impart opinions was guaranteed by Article 29 of the Russian Constitution and the contested statement was his personal assessment of Mr Shamanov's actions. Furthermore, he argued that the contested expression was an idiom in the Russian language, and was commonly used to give an ethical appraisal of a person's deeds. 14. On 24 December 2002 the Ulyanovsk Regional Court upheld the judgment of 14 November 2002. The court endorsed the conclusions of the first-instance court and added: “The arguments... about the court's confusion of the term 'opinions' and the term 'statements' (сведения) cannot be taken into account because [the applicant's] opinion had been printed in a public medium and from the moment of publication it became a statement.” 15. The applicant's subsequent attempts to initiate supervisory review proceedings proved unsuccessful. On 22 August 2003 the Supreme Court of the Russian Federation dismissed his application for the institution of supervisory-review proceedings. 16. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 17. Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. 18. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (“сведения”) had to be untrue and contain allegations of a breach, by a person or legal entity, of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person (section 2). 19. Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the statements had indeed been disseminated by the defendant. The defendant was to prove that the disseminated statements had been true and accurate.
| 1
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train
|
001-57714
|
ENG
|
AUT
|
CHAMBER
| 1,991
|
CASE OF WIESINGER v. AUSTRIA
| 3
|
Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
|
N. Valticos;R. Pekkanen
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8. Mr Konrad Wiesinger and his wife Klara are Austrian farmers residing at Hartkirchen, Upper Austria. They complain of consolidation measures (Zusammenlegungsverfahren) taken in respect of their land since July 1975. 9. On 22 July 1975 the Linz District Agricultural Authority (Agrarbezirksbehörde, "the District Authority") opened the Hacking land consolidation proceedings, pursuant to section 29 of the Upper Austrian Agricultural Land Planning Act 1972 (Flurverfassungs-Landesgesetz, "the 1972 Act"). The measures concerned at least 67 landownersand covered approximately 172 hectares, including the applicants’ property at Hartkirchen. On 15 July 1976 Mr and Mrs Wiesinger made a "declaration of wishes" (Wunschaufnahme), expressing their wish to receive parcels situated near their farmhouse. On 13 August 1976 the District Authority adopted the land valuation schedule, against which the Wiesingers did not appeal. 10. On 13 October 1978 the District Authority ordered the provisional transfer of compensatory plots (Grundabfindungen) on the basis of a draft consolidation scheme (Neueinteilungsplan), pursuant to section 22 of the 1972 Act (see paragraph 36 below). The applicants had agreed to this plan, which provided them with a parcel of 23,219 square metres near their farm, and did not contest the transfer decision. While they lost the ownership of land formerly belonging to them (including the five plots mentioned in paragraph 12 below), which passed to the association of landowners (see paragraph 33 below), they acquired the provisional ownership of certain plots subject to a condition subsequent, namely that they would be dispossessed of them under the final consolidation scheme, if it did not confirm the allocation thereof to the applicants (section 22 of the 1972 Act). 11. On 1 September 1978 the municipal council of Hartkirchen had adopted an area zoning plan (Flächenwidmungsplan; see paragraphs 42-43 below), which was approved on 10 October by the government of the Land. The Wiesingers’ property, which was covered by the consolidation scheme, retained its designation as agricultural land, although certain adjoining plots had been redesignated as building land in 1976 and 1978. 12. At the request of the new (provisional) owners, the municipal council amended the area zoning plan on 16 November 1979. It classified as building land five plots covering a surface of 25,206 square metres which had previously belonged to the applicants. On 16 April 1980 the Land government approved the decision, which became final on 6 May. Subsequently the five plots were divided into parcels and sold to several persons who were granted building permits in respect of them. 13. On 10 August 1982 Mr and Mrs Wiesinger asked the District Authority to return to them the five plots by withdrawing them from the consolidation scheme. In their view the plots in question were now to be regarded as land of special value which under the relevant legislation was in principle to be left to the previous owners. In the alternative, they asked to be allocated building land or to be accorded financial compensation (Geldwertentschädigung). They also sought compensation (Schadensersatz) on account of loss of interest (Zinsverlust) arising from the fact that they had not themselves been able to sell the five plots after the amendment of the area zoning plan; they estimated this amount at 1,600,000 schillings on the basis of a price of 400 schillings per square metre at an interest rate of 10%. 14. The District Authority replied by a letter of 17 January 1983. It referred to the Upper Austrian Agricultural Land Planning Act 1979 ("the 1979 Act"), which had replaced the 1972 Act, and drew their attention to the fact that claims for compensation had to be submitted within six months of the date on which the consolidation scheme became final (section 20(6); see paragraph 37 below). It therefore requested the applicants to await the publication of the scheme which was scheduled for July. 15. The Wiesingers took the view that the District Authority had failed to resolve within the statutory time-limit of six months the questions which they had raised with it and, on 23 August 1983, filed with the Provincial Land Reform Board (Landesagrarsenat, "the Provincial Board") an application for a ruling on the matter (section 73 of the General Administrative Procedure Act, Allgemeines Verwaltungsverfahrensgesetz; see paragraph 41 below). The Provincial Board gave its decision on 17 November. It dismissed the request for the five plots to be withdrawn from the consolidation scheme. It considered that, in order to attain its objective, the scheme had to include the land in question and the fact that the plots were now building land made no difference in this respect. It found that the District Authority’s refusal to rule on the applicants’ other claims was justified since the merits of such claims could not be determined until the consolidation scheme had become final. The Provincial Board ordered the District Authority not to approve or authorise any further division into parcels of the land in question or to allow any further conversion into building land or any further issue of building permits. 16. The Wiesingers appealed to the Supreme Land Reform Board (Oberster Agrarsenat, "the Supreme Board"), which declared their appeal inadmissible on 1 February 1984. Its decision was upheld on 27 June by the Constitutional Court (Verfassungsgerichtshof) and on 25 September 1984 by the Administrative Court (Verwaltungsgerichtshof). 17. Previously, on 10 January 1984, the applicants had contested the Provincial Board’s decision of 17 November 1983 (see paragraph 15 above) directly in the Administrative Court, which gave its decision on 20 March 1984. It upheld the impugned decision in so far as the Provincial Board had refused to return the five plots to the applicants, but at the same time declared the appeal well-founded on the other points. As the District Authority had not ruled within the statutory period of six months on the alternative claims filed by the applicants, the Provincial Board ought to have decided them itself. 18. In new proceedings before it, the Provincial Board gave its decision on 18 October 1984. In its view it was not possible under the 1979 Act to afford compensation for the alleged damage. The Act provided that the owners of plots of special value covered by a consolidation scheme should in principle be compensated by the allocation of land of the same type. As regards the building land claimed by the Wiesingers, the Board noted that the provisional transfer of the plots precluded altering their allocation for the time being. However, the provisional transfer did not prejudge the consolidation scheme which would determine definitively the question of land of special value. Furthermore, the building plots were referred to only in the area zoning plan for Hartkirchen and there was therefore an inseparable link between that plan and the question of statutory compensation for land of special value. Accordingly, the area zoning, which was the responsibility of the municipal authorities and not the agricultural authorities, was a precondition. The municipal council of Hartkirchen had announced that it proposed to convert into building land certain of the compensatory plots allocated to the applicants, but their area and location had not yet been fixed. The Provincial Board concluded that it could not rule on the merits of the question until an appeal had been filed concerning the consolidation scheme, once the latter had been adopted and published. 19. Mr and Mrs Wiesinger then appealed to the Constitutional Court, which on 24 June 1985 refused to entertain their appeal as the case did not raise any specific questions of constitutional law. It remitted the case to the Administrative Court, in accordance with the applicants’ alternative plea. 20. The Administrative Court dismissed the appeal on 19 November 1985. It noted in the first place that the applicants had themselves obtained the plots which they had wished and whose designation as agricultural land had not been changed. They had thus suffered no temporary disadvantage for which they could claim financial compensation. It was true that the area zoning plan had reclassified a part of their former land after its provisional transfer. However, the consolidation scheme, which was to fix the statutory compensation, would have to take into account any changes in the value of the land occurring in the course of the proceedings, for example following a new area zoning plan as in this instance. Consequently, the contested decision was not unlawful. 21. Relying on section 7a(4) of the Federal Agricultural Proceedings Act 1950 (Agrarverfahrensgesetz, "the 1950 Federal Act"), according to which the consolidation scheme is to be published not later than three years after the final decision on the provisional transfer of plots, the Wiesingers asked the Provincial Board on 17 January 1984 to take jurisdiction over the case in accordance with section 73 of the General Administrative Procedure Act (see paragraphs 37 and 41 below). On 7 June the Board refused. It considered that it was empowered to adopt the consolidation scheme only if the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. This was not the case. Since the provisional transfer the District Authority had made every effort to draw up the consolidation scheme. Its work had been delayed on account, in particular, of the proposed route for a new major road and its link roads across the area in question, which made it necessary to revise the position of 43 owners. Furthermore, a substantial part of the file had had to remain for several months with the Provincial Board in connection with appeal proceedings instituted by a landowner; likewise, the Wiesingers’ application of 23 August 1983 had required the file to be sent to the Provincial Board, then to the Supreme Board and to the Administrative Court, and had therefore prevented a decision from being taken during this period. The District Authority could have adopted and published the consolidation scheme in 1983 if further consideration, inquiries and interviews had not been necessary following the alteration to the Hartkirchen area zoning plan. With a view to expediting the final adoption of the area zoning plan, it had held discussions with the municipal council as early as 8 September 1983, and then with the authorities with competence in the field of land development on 25 January, 22 February, 5 March and 10 April 1984. As the area zoning plan had still not been settled, it had not been possible to adopt the consolidation scheme, because the District Authority could not yet determine whether the allocation of land provided the applicants with sufficient compensation, thereby satisfying the statutory criteria. It was, moreover, contrary to the principles of efficient administration to finalise the consolidation scheme before the adoption of the area zoning plan. The conduct of the District Authority had thus been justified. Under section 38 of the General Administrative Procedure Act, it was possible to stay (aussetzen) proceedings pending a definitive decision on a preliminary question which was the subject of other proceedings. In this case the area zoning constituted a preliminary question for the consolidation proceedings. 22. The applicants appealed to the Supreme Board, which dismissed their appeal on 6 March 1985. It began by upholding the Provincial Board’s decision that the latter had competence to adopt a consolidation scheme solely where the failure to comply with the statutory time-limit of three years was exclusively the fault of the District Authority. According to the established case-law of the Administrative Court, there was no such fault where the delay resulted from the conduct of one of the parties or from an insurmountable obstacle. In the present case it had not been suggested that the applicants’ conduct had been in any way reprehensible, nor could the failure to comply with the statutory three-year time-limit be blamed on the District Authority. Throughout the consolidation proceedings, it had to take account of the area zoning plans and any amendments thereto. It was therefore impossible, and indeed contrary to the principles of efficient administration, to adopt a consolidation scheme where no final land-development plan or area zoning plan existed, and where negotiations for the adoption of such plan were in progress. Even before the Wiesingers’ appeal had been filed, the competent authority had conducted further inspections of the land and had had contacts with the Hartkirchen municipal council, which was considering the possibility of converting some of the plots allocated to them into building land. In those circumstances, there was no justification for adopting a consolidation scheme which would probably have been defective as from its adoption, if the municipal authority subsequently fixed an amended area zoning plan. The finalisation of such a plan in fact constituted a precondition for the adoption of the consolidation scheme. For all these reasons, the District Authority had been right to stay the proceedings pending the final decision of the municipal council and was not responsible for the delay in the consolidation proceedings. 23. Mr and Mrs Wiesinger contested this decision before the Constitutional Court, which, on 23 November 1985, refused to entertain their appeal on the same grounds as those set out in its judgment of 24 June (see paragraph 19 above). It remitted the case to the Administrative Court in accordance with the applicants’ alternative plea. The Administrative Court dismissed the applicants’ appeal on 8 April 1986. It found, inter alia, that the Provincial Board’s refusal to assume jurisdiction had been justified, since the failure to comply with the statutory time-limit was not exclusively attributable to the District Authority. Furthermore, the applicants’ claims concerning the nature and extent of the compensatory plots related to the question of the statutory compensation, which would be dealt with by the consolidation scheme. 24. On 16 July 1986 the District Authority published the consolidation scheme (see paragraph 37 below); it returned to the Wiesingers 9,680 square metres of their former land and allocated to them plots covering an area of 19,909 square metres classified as a zone capable of being redesignated as building land (Bauerwartungsland). It pointed out that the applicants had already received monetary compensation, in 1974, for certain plots that they had had to give up in connection with the construction of the new major road. It dismissed their claim for compensation for the increased value of their former land following its reclassification, because that had been taken into consideration when the compensatory plots were allocated definitively. Finally, the District Authority found that the applicants had not suffered any temporary damage and were not entitled to any financial reparation. 25. The applicants contested the scheme before the Provincial Board. They argued that the land which they had ultimately received was of a lower value than their former land; they had, they claimed, sustained a loss of more than 4,000,000 schillings. 26. The different agricultural authorities attempted first to secure a friendly settlement of the dispute: the District Authority, between 20 October 1986 and 8 July 1987, during which period twelve meetings were held, and the Provincial Board, between 28 September 1987 and 28 August 1989, at eignteen meetings with the parties concerned, the local authorities, the highways department and the land designation supervisory authority. In the course of these meetings the Provincial Board invited the municipal authorities in question to redesignate a particular plot which they were proposing to allocate to the applicants as building land. However, the authorities’ efforts were in vain. 27. After the attempts to reach a friendly settlement had failed, the Provincial Board held a hearing on 28 September 1989. On 24 January 1990 it allowed in part the Wiesingers’ appeal. It awarded to them a part of their former land, now reclassified, and other plots converted or to be converted into industrial sites. On the other hand, it dismissed once again their claim for financial compensation. 28. The applicants appealed against this decision to the Supreme Board, which dismissed their appeal on 5 December 1990. After having examined in detail the Wiesingers’ objections, the Supreme Board concluded that they had received compensatory plots of a value equivalent to that of their former land, as was required under the 1979 Act. Accordingly, the impugned decision did not infringe their statutory rights. Furthermore, according to the Supreme Board, if the new situation of agriculture in the area was compared to the old one, it could be said that the consolidation scheme had been a success and had achieved its goals. In the meantime the applicants had appealed to the Constitutional Court, which has not yet ruled. 29. Prior to the adoption of the consolidation scheme, the Wiesingers applied to the civil courts for an order directing the cessation of the construction work which had begun on their former land. On 16 October 1985 the Wels Regional Court (Kreisgericht) found that it lacked jurisdiction. Its decision was overturned on 21 February 1986 by the Linz Court of Appeal (Oberlandesgericht), but on 19 June 1986 the Supreme Court (Oberster Gerichtshof) confirmed that the civil courts were not competent to decide the matter. The Supreme Court declined, on account of the exclusive powers vested in the District Authority under Austrian law (section 102(2) of the 1979 Act; see paragraph 33 below), to follow its previous case-law, although it concerned similar facts. 30. The applicants also requested authorisation to construct two animal feed silos on their compensatory plots near their farm. However, the authorities refused on the ground that they were only provisionally owners of the land in question. 31. The basic rules applying to the consolidation of agricultural land are embodied in the Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. The Länder have regulated the matters for which they are made responsible under the Federal Legislation in provincial agricultural land planning Acts (Flurverfassungs-Landesgesetze). In Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the 1979 Act"). This replaced an Act of 1972, which had itself replaced an Act of 1911 that had been brought into force again in 1954. The proceedings in the present case were instituted under the 1972 Act, on the basis of which the provisional transfer was ordered. However, the subsequent proceedings were governed by the 1979 Act. 32. The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area (section 1(1) of the 1979 Act). It comprises communal measures and facilities and redistribution of land. The operation takes place in the following stages: - the initial proceedings; - ascertainment of the occupiers of the land in question and assessment of its value; - planning of communal measures and facilities; - provisional transfer of land, where appropriate; - adoption of the consolidation plan. None of these stages may begin until the previous stage has been terminated with a final decision. 33. The initial proceedings, which are instituted of the authorities’ own motion, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities (sections 2 and 3). Land which is not needed for the purposes of consolidation may subsequently be withdrawn from the area (section 4(2)). The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law. The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority. This authority has exclusive jurisdiction, inter alia, over disputes concerning ownership and tenure of land in the consolidation area (section 102). 34. Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value (sections 11 and 12). Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria (section 13). Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others. Once the agricultural authority’s decision has become final, however, it is binding on all of them. 35. Communal measures (e.g. soil improvement, alterations to terrain or landscape) and communal facilities (e.g. private roads, bridges, ditches, drainage and irrigation) are ordered, where they are needed, in a specific decision by the relevant authority (Plan der gemeinsamen Massnahmen und Anlagen), which must also settle the question of costs, these usually being shared by the landowners. 36. Under section 22, in both the 1972 and the 1979 Act, land may be provisionally transferred before the adoption of the consolidation scheme, even if some owners object. Decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as amended in 1974, "the 1950/1974 Federal Act") provides that the final decision shall lie with the Provincial Board, except in cases where an appeal lies to the Supreme Board (see paragraph 39 below). The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation plan (Eigentum unter auflösender Bedingung, section 22(2)). This provisional, conditional ownership is, as a rule, not entered in the land register, since it is subject to a resolutive condition and it is possible that the parties concerned may be allotted other parcels once the proceedings are completed. The District Authority has to authorise any entry in the land register (sections 94 et seq.). 37. At the end of the proceedings, the agricultural authority adopts the consolidation scheme (Zusammenlegungsplan, section 21). Since 1977 this has to be published within three years of the final decision provisionally to transfer parcels of land (section 7a(4) of the 1950 Federal Act), failing which the person concerned may request the higher authority to assume jurisdiction. The adoption of the plan is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings. The 1979 Act includes the following regulations on this matter: - when compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme; - any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or, if that is not possible, to be reallocated his previous parcels, including building land (section 19); - changes in the value of land which come about in the course of the proceedings, including those occurring after the provisional transfer, must be taken into account in the final allocation under the consolidation scheme (section 14(1)); - claims for compensation have to be submitted within six months from the date on which the consolidation scheme becomes final (section 20(6)). 38. The provincial legislation does not provide for any financial compensation for damage suffered, before a final consolidation plan comes into force, by landowners who successfully challenge the lawfulness of compensation received in the form of land. 39. The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Provincial Board, established at the Office of the Provincial Government (Amt der Landesregierung), and the Supreme Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). These boards include judges and constitute a kind of "specialised administrative tribunal". 40. Decisions (Bescheide) of the District Authority can be challenged by way of appeal (Berufung) to the Provincial Board, whose decision is final except where it varies the decision in question and where the dispute concerns one of the issues listed in section 7(2) of the 1950/1974 Federal Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board. The executive can neither set aside nor vary the decisions of these three bodies, but they can be challenged in the Administrative Court (section 8 of of the 1950/1974 Federal Act and Article 12 para. 2 of the Federal Constitution). 41. Procedure before the land reform boards is governed by the 1950 Federal Act, section 1 of which stipulates that the General Administrative Procedure Act - except for one section of no relevance in the instant case - shall apply, subject to the variations and additional provisions made in the 1950 Federal Act. The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9(1) and (2) of the 1950 Federal Act, the boards take their decisions after a private hearing. Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73(1)). If the board’s decision (Erkenntnis) is not notified to the parties concerned within that time, they may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73(2)). If the latter authority fails to give a decision within the statutory time-limit, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act). 42. In the present case, area zoning planning is governed by the Upper Austrian Land Planning Act (Raumordnungsgesetz). In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual’s property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them. However, the competent local authorities (Gemeinden) must take into consideration planning proceedings of neighbouring local authorities and other public law corporations, as well as regionally significant measures of other planning organisations (section 15(10)), including the planning projects of the agricultural authorities. 43. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal Constitution. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. Ultimately this question can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution or by a request made by the Administrative Court under Article 89 para. 2 and Article 139 of the Federal Constitution. 44. The decisions of land reform boards can be challenged in the Constitutional Court. The latter will determine whether there has been any infringement of the applicant’s rights under the Constitution and whether the boards have applied a decree (Verordnung) that is unauthorised by statute law, an unconstitutional statute or an international treaty that is unlawful (rechtswidrig) under Austrian law (Article 144 of the Federal Constitution). 45. As an exception to the general rule laid down in Article 133 para. 4 of the Federal Constitution, section 8 of the 1950/1974 Federal Act provides for an appeal to the Administrative Court against the decisions of land reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court. The latter will, if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests, refer the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution). Under Article 130 of the Federal Constitution, the Administrative Court determines applications alleging the unlawfulness of an administrative act (Bescheid) or a breach by a competent authority of its duty to take a decision. It also hears appeals against decisions of boards whose members include judges - such as the land reform boards (see paragraph 39 above) - where such jurisdiction is conferred on it by statute.
| 1
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train
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001-97121
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ENG
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NLD
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CHAMBER
| 2,009
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CASE OF SANOMA UITGEVERS B.V. v. THE NETHERLANDS
| 3
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No violation of Art. 10
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
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5. The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring. 6. The facts of the case, as submitted by the parties and shown by documents available to the public, may be summarised as follows. 7. On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers. The journalists were given the opportunity to take photographs of the street race and of the participating cars and persons. Before they were given permission to take photographs, the journalists were made to guarantee the participants that the latter’s identity would remain undisclosed. The street race was ended by the police, who were present and eventually intervened. The police did not make any arrests. 8. The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the car race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek). 9. In the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, i.e. the features chief editor (chef reportage), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. He further told this police officer that he thought that the press was reasonably protected against this kind of [police] action and advised her to contact the editorial office in writing. 10. In the afternoon of 1 February 2002, two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek’s editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure (Wetboek van Strafvordering). This summons was issued by the Amsterdam public prosecutor and ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310-312 of the Criminal Code (Wetboek van Strafrecht) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek’s editor-in-chief Mr B. refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity. 11. Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company. The lawyer was told by the public prosecutors that “it concerned a matter of life and death”. No further explanation was given and the lawyer’s request to amend the summons was not entertained. 12. The police detectives and the public prosecutors threatened to detain Mr B. during the weekend of 2 to 3 February for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order (ambtelijk bevel), and to close and search the applicant company’s premises, if need be, for the entire weekend period. The latter action would entail considerable financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002. 13. At 6.01 p.m. on 1 February 2002, Mr B. was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company’s premises. After the Amsterdam public prosecutor had arrived on these premises and after Mr B. had been brought before the prosecutor, Mr B. was released at 10 p.m. 14. The applicant company then consulted its own lawyer and a second lawyer. The latter spoke with the public prosecutors involved, after which the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) was contacted by telephone. After having spoken with one of the lawyers assisting the applicant company, and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. On 2 February 2002 at 1.20 a.m., the applicant company, through its lawyer and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it. 15. On 15 April 2002 the applicant company filed a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CDROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM. 16. On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of the wall with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies. 17. In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company’s complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure (verschoningsrecht) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter. 18. The applicant company’s subsequent appeal in cassation was declared inadmissible by the Supreme Court (Hoge Raad) on 3 June 2003. The Supreme Court held that, as the Regional Court had accepted the applicant company’s complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD-ROM – also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used, as neither Article 55a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining, once a seized item had been returned, in a procedure like the present one, a declaratory ruling that the seizure or the use of the seized item was unlawful. 19. In their observations on the admissibility and merits of the application, the Government stated the following: “6. To supplement the summary of the facts appended to the Court’s letter of 28 March 2006 [giving notice of the application to the respondent Contracting Party under Rule 54 § 2 (b) of the Rules of Court], the Government would make the following observations 7. The order in question, issued under Article 96a of the Dutch Code of Criminal Procedure (..., ‘CCP’), requiring the surrender for seizure of a CD-ROM containing photographs was closely related to a criminal investigation initiated following a series of ram raids in which cash machines were pulled from the wall with a shovel loader. These ram raids took place on 20 September 2001, 6 November 2001 and 30 November 2001. A group of men was suspected of perpetrating the ram raids and two members of the group (‘A’ and ‘M’) were the main suspects. A telephone conversation involving M, tapped in the context of the investigation on 12 January 2002, revealed that M and A had participated in an illegal street race in Hoorn with an Audi RS4 that day. The investigation team knew that journalists from the weekly magazine Autoweek had taken photographs of the illegal street race. 8. On 1 February 2002 another ram raid took place. During the incident, a bystander was threatened with a firearm. After ramming a cash machine, the perpetrators hauled it off in a lorry, which was followed closely by an Audi. The police, who had already been informed of the incident, saw the lorry stop and the driver get into an Audi, which then drove away with three people inside. The police followed, but the Audi accelerated to over 200 kilometres per hour and disappeared from view. 9. The police suspected that the Audi used in the illegal street race in Hoorn on 12 January 2002 was the same Audi observed at the ram raid on 1 February 2002. With that in mind, the public prosecutor decided that day (1 February 2002) to issue an order under Article 96a of the CCP in order to obtain the photographs taken at the street race. 10. The course of events is summarised below: 24 July, 26 July and 30 November 2001: ram raids perpetrated; 12 January 2002: illegal street race in Hoorn, in which A and M participated with an Audi RS4; later that day: the public prosecutor learns from a tapped conversation that A and M took part in the street race with an Audi RS4; 1 February 2002: new ram raid, involving an Audi; later that day, at approximately 14.30: order issued under Article 96a of the CCP.” 20. Under Article 96a of the Code of Criminal Procedure, every civil servant invested with investigative powers (opsporingsambtenaar) may – in case of suspicion of an offence attracting a prison sentence of four years or more – such as for instance the offences defined in Articles 310-312 of the Criminal Code (theft; theft under aggravating circumstances; robbery) – or of a number of other specified criminal acts not relevant to the present case (Article 67 § 1 of the Code of Criminal Procedure) – order any person who is reasonably believed to hold an item eligible for seizure to surrender it for that purpose. Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender items for the purpose of seizure (former Article 105 of the Code of Criminal Procedure). 21. A failure to comply with such an order constitutes an offence as defined in Article 184 (failure to comply with an official order) or Article 193 (failure to make available documents) of the Criminal Code. Pursuant to Article 96a §§ 1 and 2 of the Code of Criminal Procedure, no such order may be given to the suspect or to a person who, by virtue of Articles 217-219 of the Code of Criminal Procedure, enjoys the privilege of nondisclosure. Such persons are an accused’s relatives, (former) spouse and (former) registered partner (Article 217); persons who, by virtue of their position, profession or office, are bound to secrecy albeit that their privilege of non-disclosure only covers matters the knowledge of which has been entrusted to them in that capacity (Article 218; for further details about this category, see Mulders v. the Netherlands, no. 23231/94, Commission decision of 6 April 1995, and Aalmoes and Others v. the Netherlands (dec.), no 16269/02, 25 November 2004), and persons who, by giving evidence, expose themselves, their relatives “to the second or third degree”, their (former) spouse or their (former) registered partner to the risk of a criminal conviction (Article 219). 22. Any interested person can lodge an objection against the seizure of an object, the refusal to return a seized object, or the examination (kennisneming) or use of electronic data. Such an objection is heard in public by the Regional Court, which has the power to give whatever orders the situation may require (Article 552a of the Code of Criminal Procedure). 23. Until 11 November 1977, the Netherlands Supreme Court did not recognise a journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified in the parti that the interest of non-disclosure of a source outweighed the interest served by such disclosure. This principle was reversed by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court’s judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom (Reports of Judgments and Decisions 1996II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention (NJ 1996, no. 578). In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number] LJN AS6926), the Supreme Court held inter alia: “The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right freely to gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003IV]). An interference with the right freely to gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways (minder bezwarende wegen) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right freely to gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.” 24. On 1 April 2002, in the light of the case-law developments in this area and Recommendation No. R(2000) 7 adopted on 8 March 2000 by the Committee of Ministers of the Council of Europe on 8 March 2000 (see below under “Relevant international materials”), the Board of Procurators General (College van procureurs-generaal) adopted an Instruction within the meaning of Article 130 § 4 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) on the application by the Public Prosecution Department of coercive measures in respect of journalists (Aanwijzing toepassing dwangmiddelen bij journalisten; published in the Official Gazette (Staatscourant) 2002, no. 46), which entered into force on 1 April 2002 for a period of four years. This Instruction defines who is to be considered as a “journalist” and sets out the pertinent principles and guidelines as regards the application of coercive measures, such as inter alia an order under Article 96a of the Code of Criminal Procedure, in respect of a journalist. 25. On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief (Nederlands Genootschap van Hoofdredacteuren) and the Netherlands Union of Journalists (Nederlandse Vereniging van Journalisten) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission – which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper – concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved. 26. Already in 1993, Mr E. Jurgens – at the time a member of the Netherlands Lower House of Parliament (Tweede Kamer) – had submitted a private member’s bill (initiatiefwetsvoorstel) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament. 27. The Court’s judgment in the Voskuil case (Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would vouchsafe a right to refuse to give evidence or identify sources of information to “witnesses to whom information has been entrusted within the framework of the professional dissemination of news (beroepsmatige berichtgeving) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be”. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest (zwaarderwegend maatschappelijk belang) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse to surrender items eligible for seizure: the bill does not propose to include them in the enumeration contained in Article 96 § 2 (paragraph 21 above). 28. Several international instruments concern the protection of journalistic sources; among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists’ Sources adopted by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34). 29. Moreover, Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant: “[The Committee of Ministers] Recommends to the governments of member States: 1. to implement in their domestic law and practice the principles appended to this recommendation, 2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations. Appendix to Recommendation No. R (2000) 7 Principles concerning the right of journalists not to disclose their sources of information Definitions For the purposes of this Recommendation: a. the term ‘journalist’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication; b. the term ‘information’ means any statement of fact, opinion or idea in the form of text, sound and/or picture; c. the term ‘source’ means any person who provides information to a journalist; d. the term ‘information identifying a source’ means, as far as this is likely to lead to the identification of a source: i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, and iv. personal data of journalists and their employers related to their professional work. Principle 1 (Right of non-disclosure of journalists) Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right. Principle 2 (Right of non-disclosure of other persons) Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein. Principle 3 (Limits to the right of non-disclosure) a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked. Principle 4 (Alternative evidence to journalists’ sources) In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist. Principle 5 (Conditions concerning disclosures) a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure. b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested. c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention. d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority. e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure. Principle 6 (Interception of communication, surveillance and judicial search and seizure) a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source: i. interception orders or actions concerning communication or correspondence of journalists or their employers, ii. surveillance orders or actions concerning journalists, their contacts or their employers, or iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work. b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3. Principle 7 (Protection against self-incrimination) The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.” For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out: “c. Source 17. Any person who provides information to a journalist shall be considered as his or her ‘source’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘potentially chilling effect’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘provided’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”
| 0
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train
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001-99707
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF NIKIFOROV v. RUSSIA
| 4
|
Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
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6. The applicant was born in 1972 and is now serving a sentence in Kostroma. 7. On 28 December 2003 the applicant was apprehended, allegedly in an inebriated state, on the railway line by Mr S. and Mr L., police officers from Nerekhta station police department (линейный пост милиции станции Нерехта). Subsequently he was transported to Nerekhta district police station (Нерехтский ГРОВД) and placed in a temporary detention cell. 8. After a while a police officer took the applicant from his cell to the second floor of the police station. The officer pointed to a young man and woman in one of the offices and asked the applicant whether he knew them. The applicant said that he knew the woman. The officer then noticed a blood stain on the sleeve of the applicant's jacket and allegedly accused him of having robbed the man and woman. The applicant was taken to the officer on duty and his jacket was seized as material evidence. 9. The applicant spent the night in the temporary detention wing. 10. On the morning of 29 December 2003 another police officer who did not introduce himself took the applicant from his cell to an office on the third floor of the police station. He told the applicant to write a confession statement which the applicant refused to do. The officer left and then returned with his colleagues. Together they beat the applicant up and later took him back to the cell. 11. Later on that day the applicant was brought before the Justice of the Peace of the 19th Court Circuit who found him guilty of disturbing public order and sentenced him to five days' detention. 12. On 30 December 2003 the applicant was interviewed as a witness in a robbery case. He refused to make any statements and asked for his injuries to be recorded and for an inquiry to be opened into the beatings he had received. 13. On 31 December 2003 an investigator from Nerekhta district police station, Mr S., commissioned a forensic examination of the applicant's injuries with a view to determining their extent and origin. 14. On 19 February 2004 the expert returned the following findings: “Mr Nikiforov had a fractured nose, abrasions and a bruise on his face [measuring 7 x 4 cm]. The injuries could have been caused by the impact of a hard blunt object or as a result of falling on such an object... It is impossible to establish when Mr Nikiforov's nose was broken because of his belated request for it to be X-rayed...” 15. On 20 February 2004 an investigator of Nerekhta District Prosecutor's Office, Mr V., refused to institute criminal proceedings into the alleged beatings. He found that since the applicant's jacket had been stained with blood at the moment of his arrival at the police station, the injuries must have been caused at some earlier point in time. 16. On 12 May 2004 the Nerekhta District Prosecutor quashed the investigator's decision and directed him to hear the arresting police officers and to examine the detainees' registration log. 17. On 16 May 2004 the investigator Mr V. again refused to institute criminal proceedings. On the basis of an entry in the registration log, he established that from 8.30 to 9.20 a.m. on 29 December 2003 the applicant had not been in the temporary detention wing but with police officer Mr A. However, since both Mr A. and the arresting police officers had denied using any force on the applicant, there were no indications of a criminal offence. 18. On 25 June 2004 a deputy prosecutor of the Kostroma Region quashed the investigator's decision as incomplete. He ordered, in particular, that the officers on duty be heard on the issue of whether any injuries had been present on the applicant's body at the time of his arrival at the police station. 19. On 4 July 2004 the investigator Mr V. refused to institute criminal proceedings for a third time. His decision was an exact repeat of his previous one, save for the statement of the officer Mr P. in which he had claimed that at the time of the applicant's arrival at the police station he had had no visible injuries. 20. On 5 August 2004 the Nerekhta District Prosecutor quashed the investigator's decision, further to the applicant's complaint, and ordered him to verify the origin of the blood stain on the applicant's jacket. 21. On 28 January 2005 the investigator Mr V. refused to institute criminal proceedings for a fourth time. He added the testimony of the officer Mr K. who could not remember whether the applicant had been held in the police station on 29 or 30 December 2003. 22. On 23 May 2005 the Nerekhta District Prosecutor quashed the investigator's decision, noting that the investigator had not established how the injuries had been caused or obtained statements from the applicant's co-detainees. 23. On 28 May 2005 the investigator Mr V. issued a fifth decision refusing to institute criminal proceedings. On 27 September 2005 the regional prosecutor quashed that decision and ordered an additional inquiry. 24. On 25 November 2005 the investigator Mr Ku. issued a sixth decision refusing to institute criminal proceedings, which was set aside by the Nerekhta District Prosecutor on the same day. 25. On 25 January 2006 the deputy Nerekhta district prosecutor, Ms P., refused to institute criminal proceedings for a seventh time. She noted the testimony of the investigator Mr S., the applicant's partner Ms R. and the applicant's sister Ms E., who had all seen the applicant's swollen nose and bruised face on the morning of 29 December 2003. The Deputy Prosecutor acknowledged that light injuries had been inflicted on the applicant after his arrival at the police station on 28 December 2003, but declared the prosecution time-barred because the limitation period for the offence of light injuries was set at two years. The applicant complained to a court. 26. On 30 March 2006 the Nerekhta Town Court ruled in the applicant's favour, finding that the inquiry had been incomplete. It also noted that, although it was established that the applicant had been beaten at the police station, the investigation had failed to use all possible means to identify the perpetrators. 27. On 18 May 2006 the Kostroma Regional Court upheld the Town Court's decision on appeal. 28. On 18 March 2007 the investigator Mr L. from the Nerekhta District Prosecutor's Office issued the most recent decision refusing to institute criminal proceedings. He noted that, according to the arrest record and testimonies of many witnesses, the applicant had had no visible injuries at the time he was placed in the temporary detention wing at 11.50 p.m. on 28 December 2003. On 31 December 2003 a forensic expert had examined the applicant and recorded multiple injuries, including bruising to the eye, a broken nose, chipped tooth and abrasions on his face. Officer A. had admitted taking the applicant out of his cell on 29 December 2003 but denied having beaten him. The investigator thus confirmed that the applicant had suffered bodily injuries shortly after he was detained at Nerekhta district police station. However, the prosecution was time-barred because of the two-year limitation period and no evidence implicating officer A. or any other police officers had been obtained. 29. From 18 March to 2 April 2004 the Nerekhta District Court examined the case against the applicant on the charge of robbery. 30. On 2 April 2004 the District Court convicted the applicant as charged and sentenced him to seven years' imprisonment in a high-security colony. On 5 August 2004 the judgment was upheld on appeal by the Kostroma Regional Court. 31. A criminal case may be instituted on the basis of a criminal complaint if there is sufficient evidence of elements of a crime (Article 140 of the Code of Criminal Procedure). A criminal case may be opened by a prosecutor or by an investigator with the prosecutor's consent (Article 146 § 1 of the CCrP). 32. The victim is the individual who has suffered physical harm, emotional distress or pecuniary damage as a consequence of the crime. The victim has, in particular, the right to give statements, to take part in procedural acts, to put questions to experts, and to lodge requests (Article 42 of the CCrP).
| 1
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train
|
001-111634
|
ENG
|
SVN
|
GRANDCHAMBER
| 2,012
|
CASE OF KURIĆ AND OTHERS v. SLOVENIA
| 1
|
Preliminary objections dismissed (Article 35-1 - Effective domestic remedy;Continuing situation;Article 35-3 - Ratione materiae;Ratione temporis);Preliminary objection dismissed (Article 34 - Victim);Preliminary objection allowed (Article 35-1 - Effective domestic remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary damage - reserved;Non-pecuniary damage - award
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Alvina Gyulumyan;Anatoly Kovler;Angelika Nußberger;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
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15. The first applicant, Mr Mustafa Kurić, was born in 1935 and lives in Koper (Slovenia). He is a stateless person. The second applicant, Mr Velimir Dabetić, was born in 1969 and lives in Italy. He is a stateless person. The third applicant, Ms Ana Mezga, is a Croatian citizen. She was born in 1965 and lives in Portorož (Slovenia). The fourth applicant, Mrs Ljubenka Ristanović, is a Serbian citizen. She was born in 1968 and lives in Serbia. The fifth applicant, Mr Tripun Ristanović, the son of the fourth applicant, was born in 1988 and is currently living in Slovenia. He is a citizen of Bosnia and Herzegovina. The sixth applicant, Mr Ali Berisha, was born in 1969 in Kosovo. According to the most recently available data, he is a Serbian citizen. He currently lives in Germany. The seventh applicant, Mr Ilfan Sadik Ademi, was born in 1952. He lives in Germany and is now a Macedonian citizen. The eighth applicant, Mr Zoran Minić, was born in 1972. According to the Government, he is a Serbian citizen. 16. The Socialist Federal Republic of Yugoslavia (“the SFRY”) was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro and Macedonia. SFRY nationals had “dual citizenship” for internal purposes, that is, they were citizens both of the SFRY and of one of the six republics. Until 1974, federal citizenship prevailed over republic citizenship: republic citizenship could only be held by a Yugoslav citizen. 17. The regulation of citizenship was similar in all republics of the SFRY, with the basic principle of acquiring citizenship by blood (jus sanguinis). In principle, a child acquired his or her parents’ citizenship; if the parents were citizens of different republics, they jointly agreed on their child’s citizenship. On the date of acquisition of the citizenship of another republic, a person’s prior republic citizenship came to an end. 18. From 1947 a separate Register of Citizenship was kept at the level of the republics and not at the level of the federal State. From 1974 the citizenship data for newly born children were entered in the Register of Births and from 1984 the entry of data in the Register of Citizenship ended, all citizenship data being entered in the Register of Births. 19. SFRY citizens had freedom of movement within the federal State and could register permanent residence wherever they settled on its territory. Full enjoyment of various civil, economic, social and even political rights for SFRY citizens was linked to permanent residence. 20. SFRY citizens living in the then Socialist Republic of Slovenia who were citizens of one of the other SFRY republics, such as the applicants, registered their permanent residence there in the same way as Slovenian citizens. Foreign citizens could also acquire permanent residence in the SFRY under a separate procedure. 21. In the process of the dissolution of the SFRY, Slovenia took steps towards independence. On 6 December 1990, the then Assembly of the Republic of Slovenia adopted the “Statement of Good Intentions” (Izjava o dobrih namenih), guaranteeing that all persons with permanent residence on Slovenian territory would be enabled to acquire Slovenian citizenship if they so wished (see paragraph 200 below). 22. On 25 June 1991 Slovenia declared its independence. A series of laws termed “the independence legislation” were passed. This included the Citizenship of the Republic of Slovenia Act (Zakon o državljanstvu Republike Slovenije – “the Citizenship Act”), the Aliens Act (Zakon o tujcih, see paragraphs 205-207 below), the National Border Control Act (Zakon o nadzoru državne meje) and the Passports of the Citizens of Slovenia Act (Zakon o potnih listinah državljanov Republike Slovenije). 23. At the material time, in contrast with some of the other former SFRY republics, the Slovenian population was relatively homogeneous, as roughly 90% of the 2 million residents had Slovenian citizenship. Approximately 200,000 Slovenian residents (or 10% of the population), including the applicants, were citizens of the other former SFRY republics. This proportion also broadly reflects the ethnic origin of the Slovenian population at that time. 24. In accordance with the Statement of Good Intentions, section 13 of the 1991 Constitutional Law provided that those citizens of other republics of the former SFRY who, on 23 December 1990, the date of the plebiscite on the independence of Slovenia, were registered as permanent residents of the Republic of Slovenia and actually lived there, held equal rights and duties to citizens of the Republic of Slovenia, with the exception of the acquisition of property, until they acquired citizenship of the Republic of Slovenia under section 40 of the Citizenship Act or until the expiry of the time-limit set out in section 81 of the Aliens Act (25 December 1991 – see paragraphs 202, 205 and 207 below). 25. Section 40 of the Citizenship Act, which entered into force on 25 June 1991, provided that citizens of the former SFRY republics who were not citizens of Slovenia (“citizens of the former SFRY republics”) could acquire Slovenian citizenship if they met three requirements: they had acquired permanent resident status in Slovenia by 23 December 1990 (the date of the plebiscite), were actually residing in Slovenia, and had applied for citizenship within six months after the Citizenship Act entered into force. As indicated in paragraph 24 above, this deadline expired on 25 December 1991. After that date, the less favourable conditions for acquisition of citizenship by naturalisation provided for by section 10 of the Citizenship Act became applicable also for citizens of other former SFRY republics (see paragraph 205 below). 26. According to the official data, 171,132 citizens of the former SFRY republics living in Slovenia applied for and were granted citizenship of the new State under section 40 of the Citizenship Act. Estimations are that an additional 11,000 persons left Slovenia. 27. Under the second subsection of section 81 of the Aliens Act, citizens of the former SFRY republics who either failed to apply for Slovenian citizenship within the prescribed time-limit or whose requests were not granted became aliens. The provisions of the Aliens Act became applicable to the former SFRY citizens either two months after the expiry of the time-limit (that is, by 26 February 1992), or two months after a decision issued in administrative proceedings rejecting their application for citizenship became final (see paragraph 207 below). 28. After the declaration of independence, the Ministry of the Interior (“the Ministry”) sent several unpublished internal instructions (okrožnice, navodila, depeše) to municipal administrative authorities relating to the implementation of the independence legislation, and in particular the Aliens Act. In a circular of 26 June 1991 the Ministry instructed the administrative authorities that citizens of other SFRY republics living in Slovenia were henceforth considered aliens in all administrative proceedings and that, in accordance with section 13 of the 1991 Constitutional Law, they held equal rights and duties to citizens of the Republic of Slovenia until the expiry of the relevant time-limits (see paragraph 24 above). It further gave technical instructions in the field of passports and aliens. On 30 July 1991 the Ministry informed the municipal administrative authorities that, further to the Brioni Declaration between the European Community Ministerial Troika and representatives of Slovenia, Croatia, Serbia and Yugoslavia, the enforcement of the independence legislation in the sphere of internal affairs had been suspended for a period of three months. During this period, citizens of other SFRY republics would not be treated as aliens. Two further administrative circulars were issued on 5 and 18 February 1992, drawing attention to the general problems relating to the implementation of the Aliens Act. The former circular stated that, when administering matters concerning the status of aliens, the personal documents of citizens of other SFRY republics issued by the Slovenian administrative authorities should be kept and their passports revoked and destroyed. 29. On 26 February 1992, the date on which the second subsection of section 81 of the Aliens Act became applicable, the municipal administrative authorities removed those who had not applied for or obtained Slovenian citizenship from the Register of Permanent Residents (Register stalnega prebivalstva – “the Register”) and, according to the Government, transferred them into the Register of Aliens without a Residence Permit. 30. On 27 February 1992 the Ministry indicated in its instructions to the municipal administrative authorities that it would be necessary to regulate the legal status of these persons. It drew their attention to the fact that numerous problems were expected to arise; the legal status of the persons concerned should be regulated and, in parallel, “the clearing of records” should be undertaken. In addition, the Ministry pointed out that the papers of such persons, even if issued by the Slovenian authorities and formally valid, would in fact become invalid owing to the persons’ change in status ex lege. The Ministry also gave an interpretation of sections 23 and 28 of the Aliens Act in cases of cancellation of residence and forcible removal. 31. The applicants stated that persons whose names were removed from the Register received no official notification. They pointed out that no special procedure was provided for to that effect and no official documents were issued. They only subsequently became aware that they had become aliens, when, for example, they attempted to renew their personal documents (personal identification card, passport, driving licence). The Government, however, maintained that, in addition to the publication in the Official Gazette, the Slovenian population was informed about the new legislation through public media and notices. In some municipalities, personal means of notification were allegedly also used. 32. According to official data from 2002, the number of former SFRY citizens who had lost their permanent residence status on 26 February 1992 amounted to 18,305, of whom approximately 2,400 had been refused citizenship. They became known as the “erased” (izbrisani), and included the applicants in the present case. New data on the “erased” were collected in 2009 (see paragraph 69 below). 33. As a result, the “erased” became aliens or stateless persons illegally residing in Slovenia. In general, they had difficulties in keeping their jobs and driving licences and obtaining retirement pensions. Nor were they able to leave the country, because they could not re-enter without valid documents. Many families became divided, with some of their members in Slovenia and others in one of the other successor States to the former SFRY. Among the “erased” were 5,360 minors. In most cases their identity papers were taken away. Some of the “erased” voluntarily left Slovenia. Some were served with removal orders and deported from Slovenia. 34. After 26 February 1992 the registration of permanent residence of citizens of other former SFRY republics was terminated if they had not acquired a new residence permit. However, under section 82 of the Aliens Act, permanent residence permits issued to foreigners with citizenship of States other than the former SFRY republics continued to be valid after the entry into force of the Aliens Act (see paragraph 207 below). 35. On 4 June 1992 the then Minister for the Interior sent a letter (no. 0016/1-S-010/3-91) to the Government, informing them of the questions that remained open relating to the implementation of the Aliens Act, in view of the large number of persons from the other republics of the former SFRY living in Slovenia without a regulated status. He also stated that, in his view, during the process of independence, all the rights of citizens of other SFRY republics living in Slovenia, as resulting from international conventions and bilateral treaties, had been taken into account. The Government maintained that, further to this letter, they took action in order to attenuate the consequences of the “erasure” by interpreting the provisions of the Aliens Act in a more flexible manner (see paragraph 36 below). In addition, on 15 June 1992 another administrative circular with instructions on the implementation of the Aliens Act was sent to the municipal administrative authorities. It addressed a number of open questions relating to such matters as the allocation of military apartments, registration of temporary refugees from Bosnia and Herzegovina, the keeping of records, transmission of personal information from the population register, and proceedings involving aliens. Personal identification cards issued to aliens by the Slovenian authorities were to be destroyed. In particular, as far as former SFRY citizens with permanent residence in Slovenia were concerned, it specified the dates to be entered in the register: either when they became Slovenian citizens or when they became aliens under section 81 of the Aliens Act (26 February 1992 or two months after the date of receipt of the decision not to grant Slovenian citizenship). 37. On 28 June 1994 the Convention took effect in respect of Slovenia. 38. The Slovenian Parliament submitted a request for a referendum on the question whether or not citizenship granted to former SFRY citizens on the basis of section 40 of the Citizenship Act should be withdrawn. On 20 November 1995 the Constitutional Court held that the request was unconstitutional. 39. In the years that followed, several non-governmental organisations, including Amnesty International and Helsinki Monitor, and the Slovenian Human Rights Ombudsman issued reports drawing attention to the situation of the “erased”. 40. On 24 June 1998 the Constitutional Court declared partly admissible a challenge to the constitutionality of the first subsection of section 16 and the second subsection of section 81 of the Aliens Act (see paragraphs 27 above and 207 below), brought in 1994 by two individuals whose names had been removed from the Register in 1992. 41. In a decision of 4 February 1999 (U-I-284/94) the Constitutional Court declared that section 81 of the Aliens Act was unconstitutional since it had not set out the conditions for acquisition of permanent residence for those subject to its second subsection. It noted that the authorities had deleted from the Register the names of citizens of the former SFRY republics who had not applied for Slovenian citizenship and entered them ex proprio motu in the Register of Aliens, without any notification. It further found that there was no legal basis for this measure; the Inhabitants’ Evidence of Residence and Population Registry Act did not provide for ex lege deregistration. 42. The provisions of the Aliens Act were, in general, designed to regulate the status of aliens who entered Slovenia after independence, not of those who were already living there. While section 82 of the Aliens Act did regulate the legal status of aliens originating from outside the former SFRY republics, no similar provision existed in respect of persons from the former SFRY. As a consequence, the latter were in a less favourable legal position than aliens who had lived in Slovenia since before independence. 43. A proposal had been made in the legislative process in 1991 for a special provision regulating the temporary situation of former SFRY citizens living in Slovenia who had not applied for Slovenian citizenship. The legislature had maintained that their situation should not be regulated by the Aliens Act but rather by an agreement between the successor States to the former SFRY. Since the relevant agreements had not been concluded, notably because of the state of war in Croatia and in Bosnia and Herzegovina, their situation remained unaddressed. In the Constitutional Court’s view, in the light of modern developments in human-rights protection, the situation of persons who had held the nationality of the predecessor but not of the successor State, with permanent residence on the territory of States that had disintegrated after 1990, had become a matter governed by international agreements. 44. Section 81 was therefore declared unconstitutional as it did not prescribe the conditions under which persons who either failed to apply for or were denied Slovenian citizenship could apply for permanent residence after the expiry of the prescribed time-limit. A legal void had thus formed and the principles of the rule of law, legal certainty and equality had been breached. 45. Furthermore, the provisions of the Aliens Act regulating the acquisition of permanent and temporary residence for aliens entering Slovenia (sections 13 and 16 of the Aliens Act – see paragraph 207 below) should not be used to regulate the status of citizens of the former SFRY republics who had a reasonable expectation that the new conditions for retaining permanent residence in Slovenia would not be stricter than those set forth in section 13 of the Constitutional Law (see paragraph 202 below) and section 40 of the Citizenship Act (see paragraph 205 below), and that their status would be determined in accordance with international law. 46. The Constitutional Court further found that section 16(1) of the Aliens Act was not unconstitutional, because it applied only to aliens entering Slovenia after independence. 47. The legislature was given six months in which to modify the unconstitutional provisions. In the meantime, the Constitutional Court ruled that no citizen of the former SFRY who was registered as a permanent resident in Slovenia on 23 December 1990 and was actually residing there could be forcibly removed from Slovenia pursuant to section 28 of the Aliens Act. 48. The Constitutional Court also pointed out that the unregulated situation of citizens of the former SFRY republics who had found themselves in a precarious legal position could lead to a violation of, inter alia, the right to respect for family life, as protected by Article 8 of the Convention (extracts of this decision are quoted in paragraph 214 below). 49. As a consequence, the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in Slovenia (Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji – “the Legal Status Act”) was passed on 8 July 1999 to regulate the legal status of the “erased” by simplifying the requirements for acquiring a permanent residence permit. 50. Under section 1 of the Legal Status Act, citizens of other successor States to the former SFRY who were registered as permanent residents on Slovenian territory on 23 December 1990, the date of the plebiscite, or on 25 June 1991, the date of independence, and had been actually resident there were entitled to a permanent residence permit, regardless of the provisions of the Aliens Act. They had three months to submit an application. Section 3 of the Legal Status Act provided for some exceptions for those with criminal convictions. Residence permits were granted ex nunc to those fulfilling the above conditions (see paragraph 210 below). 51. Ruling on another constitutional challenge (U-I-295/99), on 18 May 2000 the Constitutional Court set aside one part of section 3 of the Legal Status Act as unconstitutional because it found that the requirements for the acquisition of permanent residence set forth therein were stricter than the grounds for revoking a permanent residence permit under the Aliens Act. 52. Relying on its leading decision of 4 February 1999 (see paragraphs 41-48 above), the Constitutional Court has given several decisions in individual cases brought by some of the “erased”. 53. On 1 July 1999 (Up-333/96) it examined the case of a claimant who had been refused the renewal of his driving licence because of the “erasure” of his name from the Register. The Constitutional Court noted that following its decision of 4 February 1999, the Legal Status Act had been drafted, but had not yet been passed. It decided that, until the Legal Status Act entered into force, the claimant should enjoy the status he would have had before the expiry of the time-limit set forth in the second subsection of section 81 of the Aliens Act (see paragraph 27 above). The administrative authorities were ordered to register the claimant as a permanent resident at the address where he had been living before his name was illegally deleted from the Register and to renew his driving licence. 54. A similar decision (Up-60/97) was adopted on 15 July 1999 with regard to claimants who were all members of one family and citizens of one of the former SFRY republics, and had been denied permanent residence under section 16 of the Aliens Act, because the father had lost his job. 55. On 18 November 1999 (Up-20/97) and 16 December 1999 (Up152/97), in cases concerning the payment of a military pension to two “erased” persons, the Constitutional Court quashed the judgment of the Supreme Court and sent the case back for re-examination. 56. On 20 September 2001, in a case (Up-336/98) concerning an individual’s right to a childcare allowance, the Constitutional Court quashed the decisions of the lower authorities and sent the case back for reexamination. 57. Furthermore, the Constitutional Court has examined a number of cases brought by “erased” persons concerning the conditions for acquiring Slovenian citizenship. In a decision of 6 July 1995 (Up-38/93) it held that the condition of “actually residing in Slovenia” in section 40 of the Citizenship Act (see paragraphs 25 above and 205 below) could be fulfilled in a situation where a person’s residence in Slovenia had been interrupted on justifiable grounds if there were other circumstances proving that the centre of his or her life interests was on Slovenian territory. It quashed the Supreme Court’s decision because there had been differential treatment of analogous cases and sent the case back for re-examination. 58. On 3 April 2003, ruling on a challenge to the constitutionality of the Legal Status Act in its version of 8 July 1999 in a case (U-I-246/02) brought by the Association of the “Erased” and by other “erased” persons, the Constitutional Court found the Legal Status Act unconstitutional because it did not grant retrospective permanent residence from the date of the “erasure”, it did not define the meaning of the words “actually residing” which appeared in section 1 and it failed to regulate the acquisition of permanent residence for citizens of former SFRY republics who had been forcibly removed from Slovenia pursuant to section 28 of the Aliens Act. 59. Although the exact number of those deported was unknown, the Constitutional Court considered that the numbers would probably be low, since the unregulated status of the “erased” had generally been tolerated. It also struck down the three-month time-limit for submitting applications for permanent residence because it was unreasonably short and ordered the legislature to rectify the unconstitutional provisions of the impugned Act within six months. The Constitutional Court further observed that permanent residence was important in securing certain rights and benefits, such as military pension rights, social allowances and renewals of driving licences. 60. In point no. 8 of the operative part of the decision, the Constitutional Court ordered the Ministry to issue, ex proprio motu, decisions establishing permanent residence in Slovenia ex tunc with effect from 26 February 1992, the date of the “erasure”, to those who already had ex nunc (non-retroactive) permits in accordance with the Legal Status Act or the Aliens Act (extracts of this decision are quoted in paragraph 215 below). 61. On 25 November 2003 Parliament enacted the Act on the Application of Point No. 8 of the Constitutional Court’s Decision no. UI246/02-28 (Zakon o izvršitvi 8. točke odločbe Ustavnega sodišča Republike Slovenije št. U-I-246/02-28), also known as the “Technical Act”. This Act laid down the procedure for issuing ex tunc permanent residence permits to citizens of the former SFRY republics who had been registered as permanent residents in Slovenia on both 23 December 1990 and 25 February 1992 and who had already acquired a permanent residence permit under the Legal Status Act or the Aliens Act. 62. However, a referendum on whether the Technical Act should be implemented was held on 4 April 2004. The turnout was 31.54%; 94.59% of valid votes were against its implementation, and therefore the Act never entered into force. 63. In the meantime, in a decision (U-II-3/03) handed down on 22 December 2003, the Constitutional Court specified that the legal basis for the issuance of the supplementary residence permits by the Ministry was its decision of 3 April 2003 (see paragraphs 58-60 above); the Ministry was under an obligation to implement the decision. 64. Furthermore, in an individual case (Up-211/04) brought by one of the “erased”, claiming that his absence from Slovenia was due to the state of war, on 2 March 2006 the Constitutional Court set aside the judgments of the Supreme Court dismissing the claimant’s request for a permanent residence permit under the Legal Status Act, and remitted the case to the Administrative Court. It instructed the latter to make an appropriate assessment of the legal condition of “actually residing on the territory of the Republic of Slovenia” from 23 December 1990 onwards and of the reasons for the claimant’s absence from Slovenia. 65. In particular, the Constitutional Court held that the fact that the legislature had been late in eliminating the inconsistencies did not prevent the courts from determining the case in conformity with its decision of 3 April 2003 (see paragraphs 58-60 above). 66. In 2004 the Ministry issued 4,034 retroactive permits to the “erased”, solely on the basis of the above-mentioned Constitutional Court decision. The issuing of these permits by the authorities ex proprio motu was temporarily stayed and resumed in 2009, further to a change in government (see paragraph 70 below). 67. According to the Government, 13,355 applications had been submitted under the Legal Status Act by 30 June 2007. As a result, 12,236 permanent residence permits were issued. 68. Following the parliamentary elections held on 21 September 2008, a new government was appointed in November 2008. The regulation of the status of the “erased” in compliance with the Constitutional Court’s decisions was established as one of its priorities. 69. Further to an upgrading of the IT system, the Ministry collected new data on the “erased” and issued a report stating that on 24 January 2009 the number of the people removed from the Register amounted to 25,671, of whom 7,899 had subsequently acquired Slovenian citizenship; 7,313 of them were still alive. A further 3,630 had acquired a residence permit. 13,426 “erased” persons did not have a regulated status in Slovenia on that date and their current residence was unknown. 70. In 2009 the Ministry resumed the process of issuing, ex proprio motu, decisions establishing permanent residence in Slovenia ex tunc with effect from 26 February 1992 under point no. 8 of the operative part of the Constitutional Court’s decision of 2003 (see paragraph 60 above) to those who were already in possession of ex nunc permits. 2,347 such decisions were issued. 71. Subsequently, the Ministry prepared amendments and supplements to the Legal Status Act (“the amended Legal Status Act”), regulating the incompatibilities between the Legal Status Act and the Constitution, following the Constitutional Court’s decision of 3 April 2003, in particular in respect of those who had been deported and those who had had to leave Slovenia because of other reasons related to the “erasure”. On 8 March 2010 the amended Legal Status Act was passed. 72. On 12 March 2010 thirty-one parliamentarians requested that a referendum be held on the amended Legal Status Act, inter alia because it did not regulate the question of compensation for the “erased”; as a result, its entry into force was postponed. On 18 March 2010 the National Assembly decided that the postponement of the entry into force of the amended Legal Status Act or its rejection in a referendum would have unconstitutional consequences and referred the matter to the Constitutional Court. 73. In its decision of 10 June 2010 (U-II-1/10) the Constitutional Court relied on its previous leading decisions and found that the provisions of the amended Legal Status Act were consistent with the Constitution. The amended Act was considered to provide for a permanent solution to the status of those “erased” persons who had been unable to regularise their status, including that of their children, and for the issuing of special retroactive decisions to those of them who had been granted Slovenian citizenship, without the requirement of having a prior permanent residence permit. The Constitutional Court refused to allow a referendum to be held, considering that the potential rejection of the amended Legal Status Act would lead to unconstitutional consequences. It further found that the delay in implementing its leading decision of 2003 had entailed a fresh violation of the Constitution. 74. In paragraph 43 of its decision the Constitutional Court held that, by passing the Act in question, which provided for the retroactivity of permanent residence status, the legislature had introduced moral satisfaction as a particular form of reparation for the “erased”. If damage was caused to individuals as a result of their “erasure”, the question of possible State liability could arise on the basis of Article 26 of the Constitution if other conditions provided for by that Article and the relevant statutory conditions were met. In any event, the amended Legal Status Act on its own did not entail a new type of State liability for damage or a new legal basis for enforcing claims for damages. It was legitimate for the legislature to pass specific legislation limiting the State’s liability, as had been done, for instance, in respect of the victims of the Second World War. The Constitutional Court held that the fact that the amended Legal Status Act did not address the question of financial reparation was not unconstitutional. 75. On 15 June 2010 the President of the National Assembly publicly apologised to the “erased”; the Minister for the Interior did the same on 22 June 2010. 76. On 24 June 2010 the amended Legal Status Act was published in the Official Gazette. It entered into force on 24 July 2010, a few days after the delivery of the Chamber judgment. Prior to its enactment, 13,600 requests for residence permits had been submitted, of which 12,345 had been granted. 77. Section 1 of the amended Legal Status Act applied to aliens who had been citizens of other former SFRY republics on 25 June 1991, had been registered as having their permanent residence in Slovenia on 23 December 1990 or on 25 June 1991, and had actually resided there since then, regardless of the provisions of the Aliens Act. It provided for the acquisition of both ex nunc and ex tunc permanent residence permits by the “erased”. It also regulated the status of the children of the “erased” and provided for the issuing of retroactive decisions to those “erased” persons who had been granted Slovenian citizenship without having obtained a permanent residence permit. 78. In particular, section 1 (č) defined the meaning of the words “actually residing” in Slovenia, which was a precondition for obtaining permanent residence status, as a situation where the person had the centre of his or her life interests in Slovenia, this being determined on the basis of personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between the individual and Slovenia. 79. It further indicated that the condition of “actually residing” could be met in cases of justifiable absence for more than a year (forced removal from Slovenia, absence as a consequence of the “erasure” or impossibility of returning because of the state of war in other successor States of the SFRY). In the case of a longer absence, the condition of “actually residing” could be satisfied for the period of five years and for a further five years only if the person had tried to return to Slovenia – see paragraph 211 below). 80. According to the data submitted by the Government, from 24 June 2010 to 31 May 2011 the territorial administrative units received 173 applications for ex nunc permanent residence permits and eighty-four applications for supplementary, ex tunc permits. Including the permits issued by the Ministry of the Interior, these applications resulted in the issuing of sixty-four ex nunc permanent residence permits and 111 ex tunc permanent residence permits, in some cases by the authorities ex proprio motu. Further proceedings were still pending. The deadline for submitting requests under the amended Legal Status Act expires on 24 July 2013. 81. On 26 April 2011 an association, Civil Initiative of the “Erased”, together with fifty-two other private individuals, lodged a petition with the Constitutional Court for constitutional review of the amended Legal Status Act (U-I-85/11). The proceedings are currently pending. 82. Furthermore, one of the “erased” lodged a constitutional appeal challenging the rejection by the Supreme Court of his compensation claim, amounting to 50,492.40 euros (EUR) for loss of work and non-pecuniary damage. As far as pecuniary damage was concerned, the Supreme Court observed that the State authorities had not acted unlawfully and that Article 26 of the Constitution was therefore inapplicable. On 5 July 2011 (Up-1176/09) the Constitutional Court rejected the constitutional appeal, upholding the Supreme Court’s view that, in spite of the decision of the Constitutional Court subsequently abrogating the impugned provision of the Citizenship Act, it could not be said that administrative authorities or courts had acted unlawfully at the material time. Furthermore, since the loss of work had been related to the refusal to grant Slovenian citizenship to the claimant and not to the refusal to grant a permanent residence permit, the leading decisions of the Constitutional Court on the subject of the “erasure” could not be taken into account. 83. On 21 July 2011 the Government submitted some thirty final judgments delivered by the courts of first and second instance and by the Supreme Court in compensation proceedings brought by the “erased”. All the compensation claims were in the end dismissed, mostly for failure to comply with the prescribed time-limits, although the courts had in some cases initially established that the compensation claims were well-founded. At that time, proceedings in eleven cases brought by “erased” persons were pending before the Supreme Court. Finally, on 7 November 2011 the Government submitted a new decision delivered by the Constitutional Court on 26 September 2011 (Up-108/11) in a case brought by one of the “erased” who had claimed compensation for pecuniary and non-pecuniary damage. In that case the first-instance court had initially held in an interim judgment that there were grounds for holding the State liable for damages. However, the Supreme Court upheld the second-instance decision dismissing the claim on account of the expiry of the statutory time-limit. That decision was endorsed by the Constitutional Court. 84. Before 25 June 1991, the date on which Slovenia declared its independence, the applicants were citizens of both the SFRY and one of its constituent republics other than Slovenia. They had acquired permanent resident status in Slovenia as SFRY citizens, a status which they retained until 26 February 1992, when their names were deleted from the Register. 85. Further to the entry into force of the amended Legal Status Act on 24 July 2010, Mr Kurić, Ms Mezga, Mr Ristanović, Mr Berisha, Mr Ademi and Mr Minić received both ex nunc and ex tunc permanent residence permits. Mr Dabetić and Mrs Ristanović did not apply for residence permits. The following is a summary of the specific situation of each applicant. 86. Mr Kurić was born on 8 April 1935 in Šipovo (Bosnia and Herzegovina). According to the Government, he is of unknown citizenship. After completing his elementary education, he trained as a shoemaker. He moved to Slovenia at the age of twenty and settled in Koper in 1965. In 1976 he rented a small workshop from the Koper Municipality and established a private business there. He was registered as a permanent resident in Slovenia from 23 July 1970 until 26 February 1992. 87. In 1991 he fell seriously ill, was hospitalised for three months, and allegedly failed for that reason to lodge an application for Slovenian citizenship. He stated that he had been reassured that there would be further opportunities to apply for it. The Government confirmed that the applicant had been hospitalised. However, he had already been released from hospital on 15 June 1991. 88. The applicant never received any official notification that he no longer had a legal status in Slovenia. 89. In 1993 the applicant’s home caught fire and he lost most of his papers. When he applied to the Koper Municipality for replacement papers, he was informed that his name had been deleted from the Register. 90. The applicant continued with his business and was paying rent until the late 1990s, when he started experiencing financial difficulties. Since he could no longer pay the rent, he lost the right to remain in the premises. Without any identity documents, he was at risk of being expelled if he travelled outside the local community, where the police tolerated his presence. 91. The applicant stated that in the 1990s he tried on various occasions to regularise his status with the Koper Administrative Unit but allegedly received no reply or instruction on how to proceed. In 2005 he wrote a letter to the Ministry in which he requested to be granted Slovenian citizenship. He received no reply. However, the Government maintained that Mr Kurić had never applied for a residence permit in Slovenia. 92. The applicant further maintained that in 2006 he had started proceedings for pension rights with the Institute of Pension and Invalidity Insurance. On 14 May 2006 the latter sent him a letter with evidence of his years of employment, requesting him to provide a certificate of citizenship. However, further to an enquiry by the Agent of the Government, on 29 October 2007 the Institute of Pension and Invalidity Insurance stated that the applicant had not begun any official proceedings before it. 93. On 7 May 2007 the applicant applied for Slovenian citizenship as a stateless person. His request was dismissed on 27 July 2007. 94. On 29 January 2008 the applicant again applied for Slovenian citizenship under section 10 of the Citizenship Act. On 10 June 2009 the Koper Administrative Unit dismissed his request. He did not challenge this refusal before the Administrative Court. 95. On 24 February 2009 the applicant applied for a permanent residence permit. On 2 November 2010 he was granted both ex nunc and ex tunc residence permits. They were delivered to him on 26 November 2010. 96. The applicant stated that even after receiving the permanent residence permit, he was still encountering many difficulties, particularly with regard to his claims for pension rights, and had serious health problems. 97. Mr Dabetić was born on 22 September 1969 in Koper (Slovenia). He is a stateless person. He was registered as a permanent resident in Slovenia from 29 September 1971 until 26 February 1992. His parents and two brothers were born in Montenegro and they, like the applicant, were removed from the Register in 1992. The applicant’s mother was granted Slovenian citizenship in 1997 and his father in 2004. The applicant completed elementary school and two years’ specialised education in a secondary school for metal workers. He currently lives in Italy without any legal status. 98. The applicant stated that in 1991 he had moved to Italy, but remained registered as a permanent resident in Koper (Slovenia) until the events of 1992. He allegedly received false information from the Koper Administrative Unit. The Government stated that the applicant had been living in Italy since 1989, and not since 1991. He had therefore not been resident in Slovenia when it became independent. 99. The applicant alleged that when he had sought to apply to the Koper Administrative Unit for Slovenian citizenship, the employee had told him to submit his Slovenian employment record. The applicant stated that he worked in Italy on the basis of a lawful working permit and that he could not provide such a document. The employee allegedly replied that Italy and not Slovenia should grant citizenship to the applicant. 100. The applicant further stated that he had learned about the “erasure” later than the other applicants. In 2002, when his old SFRY passport expired, the Italian authorities had refused to extend his working residence permit (permesso di soggiorno) and had ordered him to return to Slovenia. Even though he had tried to return to Slovenia lawfully, he had been unable to regularise his status there. The Government maintained that the applicant had never properly applied for a residence permit in Slovenia. 101. On 26 November 2003 the applicant urged the Ministry to issue a supplementary, ex tunc decision regulating his status following the delivery of the Constitutional Court’s decision of 3 April 2003, without having previously submitted a request for an ex nunc permanent residence permit. 102. On 29 November 2003 the applicant applied for Slovenian citizenship under section 19 of the Citizenship Act as amended in 2002. 103. On 9 February 2004 the applicant lodged a complaint with the Nova Gorica Unit of the Administrative Court, alleging inaction on the part of the administrative authorities (tožba zaradi molka upravnega organa), which had failed to issue a supplementary ex tunc decision. 104. On 20 May 2005 the applicant’s complaint was rejected by the Administrative Court. 105. On 14 November 2005 the Ministry dismissed his application for Slovenian citizenship because he had failed to prove that he had actually resided in Slovenia for ten years and had lived there uninterruptedly for the last five years. 106. At the same time, the applicant also applied to the Italian Ministry of the Interior to obtain the status of a stateless person. 107. In recent years the applicant has been repeatedly stopped and detained by the Italian police. Moreover, on 20 April 2006 he was ordered to leave the country within five days. Eventually, he was given leave to remain in Italy since he had applied for recognition of his stateless person status and the proceedings were pending. 108. The applicant was also charged with illegal immigration into Italian territory. On 19 June 2006 the Mantua District Court acquitted him, on the ground that he had no citizenship and could not be expected to leave Italy voluntarily. At the time his application for stateless person status was pending. His application was eventually dismissed on the ground that an alien who was unlawfully residing in Italian territory was not entitled to the status in question. 109. The applicant stated that he had been living in extremely difficult conditions. He has not brought any proceedings under the amended Legal Status Act. 110. Ms Mezga was born on 4 June 1965 in Čakovec (Croatia). She is a Croatian citizen. In 1979 she moved to Ljubljana (Slovenia), where she later found work. She completed eight years of elementary school and was registered as a permanent resident in Slovenia from 28 July 1980 to 26 February 1992. 111. According to the applicant, in 1992, after the birth of her second child, she became aware of the fact that her name had been “erased” from the Register. Her employer had shortened her maternity leave and made her redundant. Moreover, in March 1993 she was stopped by the police during a routine check. Since she had no identity documents, she was detained at the police station and later in a transit centre for foreigners (prehodni dom za tujce), but was released after paying a fine. The applicant considered that this arrest amounted to confirmation of the loss of her legal status. 112. Subsequently, she moved to Piran, where she met H.Š., a Slovenian citizen, with whom she had two children, both of whom are Slovenian citizens. She stated that she had not started any proceedings in order to regularise her status since she clearly did not fulfil the conditions under the existing legislation. 113. After the entry into force of the Legal Status Act, on 13 December 1999 Ms Mezga submitted an application for a permanent residence permit. The Ministry asked her five times to complete her application and informed her that she could also have sought a permanent residence permit under the provisions for family reunion. 114. On 14 April 2004 the applicant requested the Ministry to issue a supplementary decision under point no. 8 of the operative part of the Constitutional Court’s decision of 3 April 2003 (see paragraph 60 above). 115. On 29 April 2004 the applicant applied for Slovenian citizenship under section 19 of the amended Citizenship Act. 116. On 15 October 2004 she attended a meeting at the Piran Administrative Unit in the context of proceedings for a permanent residence permit. On 25 October 2004 she was requested to complete her application. 117. On 5 November 2004 the Institute of Pension and Invalidity Insurance stated that the applicant’s employment in Slovenia was registered in their files. 118. On 6 December 2004 the Ministry terminated the proceedings relating to the applicant’s request for a permanent residence permit on account of her inactivity and her inability to prove that she had been actually resident in Slovenia since 23 December 1990 onwards. 119. In the proceedings concerning citizenship, on 18 November 2005 the Ministry gave the applicant two months to complete her application. Among other things, she had to prove that she had been actually resident in Slovenia since 23 December 1990. 120. On 13 June 2006 the Ministry dismissed her application for Slovenian citizenship. 121. On 10 August 2007 the applicant applied for a temporary permit as a family member of a Slovenian citizen. 122. On 13 September 2007 she received a temporary residence permit valid until 13 September 2012. 123. On 22 July 2010 the applicant applied for a permanent residence permit under the amended Legal Status Act. On 1 March 2011 she was granted both ex nunc and ex tunc residence permits. They were delivered to her on 2 March 2011. 124. The applicant stated that even after receiving the permanent residence permit she had experienced difficulties in arranging her health insurance and social financial support. She had serious health problems. 125. Mrs Ristanović was born on 19 November 1968 in Zavidovići (Bosnia and Herzegovina). She is currently a Serbian citizen. She moved to Ljubljana (Slovenia) in 1986 in search of work. She married there and on 20 August 1988 her son, the fifth applicant Mr Tripun Ristanović, was born. Mrs Ristanović was registered as a permanent resident in Ljubljana from 6 August 1986 to 20 November 1991. 126. Mrs Ristanović maintained that she believed that she would be granted Slovenian citizenship automatically as a permanent resident. However, in 1994 both Mrs Ristanović and her son were deported from Slovenia. She stated that she learned about the “erasure” at that time. However, Mrs Ristanović’s husband, who was in possession of a work permit and a temporary residence permit at the material time, remained in Slovenia. He later received a permanent residence permit. 127. According to the respondent Government, Mrs Ristanović moved from her municipality without deregistering her permanent residence and her personal records were transferred from the Register of Permanent Residents into the register of persons who had “emigrated without having deregistered”. 128. The applicant stated that she had lived in Serbia as a refugee and had been without any identity papers for many years. In 2004 she acquired a Serbian identity card and in 2005 a Serbian passport. She stated that she and her son had not applied for a permanent residence permit or for Slovenian citizenship since for many years they had not fulfilled the condition of actually residing in Slovenia under the existing legislation. 129. Mrs Ristanović has not brought any proceedings under the amended Legal Status Act. She stated that she had serious health problems. 130. Mr Tripun Ristanović was born on 20 August 1988 in Ljubljana (Slovenia). He is the son of the fourth applicant, Mrs Ljubenka Ristanović. He is a citizen of Bosnia and Herzegovina. Mr Ristanović was registered as a permanent resident in Ljubljana from 20 August 1988 until 26 February 1992. 131. In 1994 Mr Ristanović, who was a minor at the time, was deported from Slovenia with his mother. 132. He lived in Serbia with his mother as a refugee for many years. In 2004 the authorities of Bosnia and Herzegovina issued an identity card and a passport to Mr Ristanović. Since he had no Serbian documents, he had allegedly been living in Serbia in constant fear of being deported. 133. On 9 November 2010 he applied for a permanent residence permit under the amended Legal Status Act. On 10 March 2011 he was granted both ex nunc and ex tunc residence permits. They were delivered to him on 11 March 2011 and the applicant returned to Slovenia. 134. According to the Government, the applicant lodged a petition with the Constitutional Court for constitutional review of the amended Legal Status Act. The petition was joined to those lodged by the association Civil Initiative of the “Erased” and by other private individuals. The proceedings are currently pending (see paragraph 81 above). 135. Mr Berisha was born on 23 May 1969 in Peć (Kosovo) in a Roma ethnic community. According to the Government, he is a Serbian citizen. He moved to Slovenia in 1985. He worked in a factory in Maribor until 31 May 1991. He was registered as a permanent resident in Slovenia from 6 October 1987 until 26 February 1992. 136. In 1991 he allegedly spent some time in Kosovo with his sick mother. This appears to have been the reason why he did not apply for Slovenian citizenship at that time. 137. In 1993 the applicant was detained by the Slovenian border police when re-entering the country after visiting relatives in Germany. His SFRY passport was taken away from him and he was kept in a transit centre for foreigners for ten days. The applicant maintainted that it was then that he learned about the “erasure”. Moreover, on 3 July 1993 he was deported to Tirana (Albania), allegedly without any decision. The Albanian police returned the applicant to Slovenia because he had no valid passport. He was again placed in the transit centre, from which he escaped during the night. 138. In 1993 the applicant fled to Germany, where he received a temporary residence permit for humanitarian reasons, owing to the unstable situation in Kosovo at the time. 139. On 9 August 1996 he married M.M., who was born in Kosovo and was also a member of a Roma ethnic group. They had four children between 1997 and 2003 while the family were living in Germany. 140. In 2005 the German authorities dismissed the applicant’s request for another extension of his residence permit because the overall situation in Kosovo was deemed stable enough for him to return there. He was ordered to leave Germany with his family by 30 September 2005. 141. At an unknown time, the applicant and his family submitted requests for asylum in Germany. 142. Subsequently, the applicant and his family returned to Slovenia. 143. On 13 July 2005 the applicant and his family submitted an application for temporary residence permits. On 25 July 2005 they also applied for permanent residence permits under the Legal Status Act. 144. Since they believed that they ran the risk of being deported, on 26 September 2005 the applicant and his family also submitted asylum requests. In addition, the applicant sought refugee status. 145. Further to the withdrawal of their asylum requests, on 19 October 2005 the Ministry terminated the proceedings. The Ministry also ordered that the applicant and his family should return to Germany. On 28 October 2005 the removal order was issued but was not executed. On 10 November 2005 a new removal order was issued, setting the date of removal for 18 November 2005. The applicant started proceedings before the Administrative Court. On 15 November 2005 his request was granted. 146. At that time the case also received considerable attention from the local and international community owing to the efforts of Amnesty International. 147. On 27 February 2006 the family again applied for asylum in Slovenia. They were living in an asylum centre at the time. 148. On 28 April 2006 the applicant brought a complaint before the Administrative Court, alleging inaction on the part of the administrative authorities in the proceedings relating to the permanent residence permits for him, his wife and their four children. 149. On 19 July 2006 the German authorities informed the Slovenian authorities that Germany had jurisdiction under the Dublin Regulation to examine the asylum requests by the Berisha family. 150. On 28 July 2006 the applicant’s fifth child was born in Slovenia. 151. On 30 October 2006 the Ministry decided, further to the above-mentioned decision of the German authorities, that it did not have jurisdiction to examine the asylum requests by the applicant and his family and that they would be handed over to Germany. The Ministry had also received fresh evidence that Mr Berisha and his family were asylum seekers in Germany, where they had received financial aid for that purpose. 152. On 5 November 2006 the applicant and his family instituted proceedings in the Administrative Court, contesting the Ministry’s decision. On the same day they also requested the non-enforcement of the impugned decision and withdrew their application for asylum (see paragraph 147 above). 153. According to the applicant, on 7 November 2006 the Ministry again tried to transfer him and his family to Germany. On 15 November 2006 the Administrative Court annulled the removal order. The Ministry lodged an appeal. 154. On 28 December 2006 the Supreme Court upheld the Ministry’s decision of 30 October 2006 that Germany had jurisdiction under the Dublin Regulation to decide on the applicant’s request for asylum. 155. On 1 February 2007 the applicant and his family were handed over to Germany, where they have lived with “toleration” status (Duldung). 156. Neither the applicant nor his family have applied for Slovenian citizenship. 157. In the context of asylum proceedings, on 18 April 2008 the Constitutional Court rejected a constitutional appeal by the applicant. 158. On 19 October 2010 Mr Berisha was granted both ex nunc and ex tunc residence permits further to his request lodged on 25 July 2005 (see paragraph 143 above). The permits were delivered to him on 24 November 2010 through the Slovenian Consulate in Munich. 159. The applicant, who is currently still living in Germany, stated that he was for the time being prevented from returning to Slovenia as his five children and his wife did not have any legal status there and would not have fullfilled the conditions for family reunion under the Aliens Act. 160. On an unspecified date, the applicant filed a compensation claim with the State Attorney’s Office, which was rejected. According to the respondent Government, he did not initiate court proceedings. 161. Mr Ademi was born on 28 July 1952 in Skopje (“the former Yugoslav Republic of Macedonia”) in a Roma ethnic community. He is now a Macedonian citizen. In 1977 he moved to Slovenia, where he worked until 1992. He had his permanent residence registered there from 27 September 1977 to 26 February 1992. 162. According to the applicant, in 1991 he missed the deadline for applying for Slovenian citizenship. In 1993 he was stopped by the police in the course of a routine check. Since he had no valid identity documents, he and his family were expelled to Hungary. The applicant maintained that he had learned about the “erasure” at that time. Shortly afterwards the applicant and his family moved to Croatia, from where they re-entered Slovenia illegally. 163. On 23 November 1992 the applicant applied for Slovenian citizenship with the assistance of a lawyer. 164. The applicant later moved to Germany, where he declared himself a stateless person and obtained a temporary residence permit and a passport for foreigners. 165. On 9 February 1999 he requested the Embassy of “the former Yugoslav Republic of Macedonia” to issue him with a passport, but received a negative reply since he was not a citizen of that country. 166. On 16 February 2005 the applicant applied for a permanent residence permit under the Legal Status Act. On 20 April 2005 the Ministry requested him to supplement his application with evidence of citizenship. 167. On 26 May 2005 his application was rejected on the ground that he was a stateless person. The Ministry stated that the Legal Status Act applied only to citizens of other successor States to the former SFRY. 168. On 11 July 2005 the Ministry replied to a letter from the applicant seeking a further examination of his application for Slovenian citizenship lodged in 1992. It informed him that, since he did not appear to have lived in Slovenia for the preceding ten years, he did not meet the requirements for Slovenian citizenship under the amended Citizenship Act. 169. On 9 September 2005 his application for Slovenian citizenship was dismissed. 170. On 31 July 2007 the applicant again applied for a permanent residence permit under the Legal Status Act. On 31 March 2008 the Ministry rejected his application, again on the ground that he was not a citizen of any other successor State to the former SFRY. The applicant started proceedings before the Administrative Court. 171. On 18 February 2009 the Administrative Court upheld the decision by the Ministry, dismissing the applicant’s request for a permanent residence permit. The applicant appealed. 172. On 6 October 2010 the Supreme Court granted his appeal and sent the case back for re-examination. It noted that the amended Legal Status Act had been enacted in the meantime and that the applicant’s request should now be examined in the light of the new legislation. In the course of these proceedings, the applicant submitted a Macedonian passport issued on 19 August 2010. 173. On 20 April 2011 Mr Ademi was granted both ex nunc and ex tunc residence permits. They were delivered to him on 23 May 2011. 174. The applicant, who has serious health problems, is currently living between Slovenia and Germany, where his temporary status has been terminated in the meantime. 175. Mr Minić was born on 4 April 1972 in Podujevo (Kosovo). According to the Government, he is a Serbian citizen. He moved to Slovenia with his family in 1977. The applicant completed elementary school, followed by a three-year secondary school course in cookery. He was registered as a resident in Slovenia from 1 August 1984 to 26 February 1992. 176. According to the applicant, in 1991 he was visiting his grandparents in Kosovo. For that reason, he and his family missed the deadline for submitting the application for Slovenian citizenship by one month, as the war in Kosovo had made collecting the necessary documents difficult. According to the Government, there was no evidence that Mr Minić had applied for Slovenian citizenship in 1991. In addition, it followed from the applicant’s employment documents that he had been working in Podujevo from 1992 until 1999. He married a Serbian citizen, with whom he has four children. 177. The applicant stated that he had found out that he had been “erased” together with other members of his family when trying to regularise his status in Slovenia. As a result of the unbearable living conditions in Slovenia without any legal status, he had been compelled to move temporarily to Kosovo. 178. He returned to Slovenia on several occasions. In 2002 the applicant was arrested by the police in Slovenia because he was working without a permit. He was prosecuted, ordered to pay a fine and on 5 June 2002 expelled to Hungary, in spite of the Constitutional Court’s decision of 4 February 1999 (see paragraphs 41-48 above), without any formal order. 179. The applicant stated that he had not applied for any legal status in Slovenia for many years because he did not meet the conditions for Slovenian citizenship or for a permanent residence permit under the legislation existing at the time. As to his family, his mother was eventually granted Slovenian citizenship in 2000 and his siblings in 2003. 180. After the delivery of the Constitutional Court’s decision of 3 April 2003 (see paragraphs 58-60 above), on 15 September 2003 the applicant applied for Slovenian citizenship under section 19 of the amended Citizenship Act. 181. Between 26 April and 9 October 2004 the Ministry asked the applicant five times to complete his application by providing evidence, among other things, that he had been living in Slovenia without interruption since 23 December 1990. When he failed to do so, he was summoned for a hearing at the Ministry. 182. At the hearing on 17 December 2004 he confirmed the information stated in his employment record, namely that he had worked in Podujevo (Kosovo) from 8 January 1992 to 6 April 1999 and had thus not been living in Slovenia uninterruptedly since 23 December 1990. 183. On 21 February 2006 his application for Slovenian citizenship was accordingly dismissed. That decision was served on Mr Minić between 28 June and 2 July 2006 during a trip to Slovenia. 184. On 17 July 2006 the applicant initiated proceedings before the Administrative Court. 185. On 30 June 2006 he applied for a permanent residence permit under the Legal Status Act. 186. On 29 March 2007 a hearing was held at the Ministry. On 14 July 2007 the applicant provided supplementary documents in support of his request. 187. On 18 July 2007 the Ministry dismissed the applicant’s request since he did not meet the requirement of actual residence in Slovenia. 188. On 19 September 2007 the applicant initiated proceedings before the Administrative Court. 189. On 10 September 2008, in the context of administrative proceedings concerning the applicant’s request for Slovenian citizenship, the Constitutional Court dismissed a constitutional complaint lodged by him. 190. On 26 November 2008 the Administrative Court quashed the Ministry’s decision of 18 July 2007 (see paragraph 187 above) and sent the case back for re-examination. 191. On 24 July 2009 the Ministry again dismissed the applicant’s request since he did not meet the requirement of actually residing in Slovenia. 192. The applicant then initiated proceedings before the Administrative Court. He stated that he had been inextricably blocked in Kosovo in 1992 and had since returned to Slovenia as often as possible, but that the war and other circumstances had prevented him from doing so to any significant extent. Moreover, he was a Serb from Kosovo who had been granted the status of displaced person in Serbia after his house in Kosovo had been burnt down. He had tried on several occasions to regularise his status in Slovenia but had been deported in 2002. His parents, brother and two sisters were all Slovenian citizens. 193. On 19 January 2011 the Administrative Court quashed the decision of the Ministry and sent the case back for re-examination with an indication that his request should be dealt with under the amended Legal Status Act. 194. On 4 May 2011 the applicant was granted both ex nunc and ex tunc residence permits. They were delivered to him on 9 June 2011. 195. On 1 June 2011 the applicant lodged a compensation claim with the State Attorney’s Office. His claim was rejected owing to the expiry of the statutory time-limit, on the ground that he had found out about the damage caused to him by the “erasure” when he had applied for Slovenian citizenship or for a permanent residence permit. 196. Section 1 of this Act provided that every citizen of the Socialist Republic of Slovenia was simultaneously a citizen of the SFRY, thus establishing the primacy of republic citizenship. 197. This Act distinguished between a permit for temporary or permanent residence of an alien in the State territory and the temporary or permanent place of residence of an SFRY citizen, denoting the actual location of his or her residence. 198. This Act regulated the registration and deregistration of permanent and temporary residence and the keeping of population registers on Slovenian territory. 199. In 1991, section 5 of the Act was amended to provide: “The registration of permanent residence and registration of any change of address is obligatory for all inhabitants, whenever they settle permanently in a settlement or change their address. Deregistration of permanent residence is obligatory for inhabitants who move from the territory of the Republic of Slovenia.” 200. The purpose of the Statement of Good Intentions, adopted on 6 December 1990 in the course of preparations for the plebiscite on the independence of Slovenia, was to express the State’s commitment to certain values in pursuit of its independence. The relevant provision of this document provides: “... The Slovenian State ... shall ... guarantee to all members of other nations and nationalities the right to an all-embracing development of their culture and language and to all those who have their permanent residence in Slovenia the right to obtain Slovenian citizenship if they so wish ...” 201. The relevant provisions of the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia, published on 25 June 1991, provide: “The Republic of Slovenia guarantees the protection of human rights and fundamental freedoms to all persons on the territory of the Republic of Slovenia, regardless of their national origin and without any discrimination, in accordance with the Constitution of the Republic of Slovenia and binding international agreements...” 202. The relevant provisions of the 1991 Constitutional Law provide: “Citizens of the other republics [of the former SFRY] who on 23 December 1990, the day the plebiscite on the independence of the Republic of Slovenia was held, were registered as permanent residents in the Republic of Slovenia and actually reside there shall, until they acquire citizenship of Slovenia under section 40 of the Citizenship of the Republic of Slovenia Act or until the expiry of the time-limit set forth in section 81 of the Aliens Act, have equal rights and duties to the citizens of the Republic of Slovenia...” 203. The relevant provisions of the Constitution of the Republic of Slovenia provide: “Statutes and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.” “In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance. All are equal before the law.” “Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body performing a function or engaged in an activity on behalf of a State or local authority or as a holder of public office. Any person suffering damage also has the right, in accordance with the law, to claim compensation directly from the person or body that has caused the damage.” 204. The relevant provisions of the Constitutional Court Act provide: “The Constitutional Court shall deliver a decision declaring an appeal unfounded or shall allow the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part, and return the matter to the competent body. ...” “1. If the Constitutional Court quashes an individual act, it may also determine a disputed right or freedom if such a procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record. 2. The decision referred to in the preceding paragraph shall be implemented by the authority which is competent for the implementation of the individual act which the Constitutional Court abrogated or annulled and replaced by its decision. If there is no competent authority according to the regulations in force, the Constitutional Court shall determine such authority.” 205. The relevant provisions of the Citizenship Act provide: “The competent authority may, within its discretion, accept a person’s request for naturalisation if this is in compliance with the national interest. The person must fulfil the following conditions: (1) be eighteen years of age; (2) have been released from current citizenship or prove that he or she will be released [from such citizenship] if he or she acquires citizenship of the Republic of Slovenia; (3) have been actually resident in Slovenia for ten years, of which the five years immediately preceding the submission of the application must have been continuous; (4) have a guaranteed permanent source of income, at least in an amount that enables material and social security; (5) have a command of the Slovene language for the purposes of everyday communication; (6) not have been sentenced to a prison sentence longer than one year in the country of which he or she is a citizen or in Slovenia for a criminal offence which is prosecuted by law, provided that such an offence is punishable pursuant to the regulations of his or her country and also pursuant to the regulations of the Republic of Slovenia; (7) not have had his or her residence in the Republic of Slovenia prohibited; (8) the person’s naturalisation must pose no threat to the public order, security or defence of the State; ...” “Persons who acquired citizenship of the Republic of Slovenia and of the Socialist Federal Republic of Yugoslavia under valid legislation shall be considered citizens of Slovenia under the present Act.” “Citizens of another republic [of the former SFRY] who on 23 December 1990, the day the plebiscite on the independence of the Republic of Slovenia was held, were registered as permanent residents in the Republic of Slovenia and actually reside there shall acquire citizenship of the Republic of Slovenia if, within six months after the present Act enters into force, they submit an application to the internal affairs authority of the municipality where they live...” 206. On 14 November 2002 the Citizenship of the Republic of Slovenia Act was amended. The relevant provision reads: “An adult who on 23 December 1990 was registered as a permanent resident on the territory of the Republic of Slovenia, and has lived there uninterruptedly since that date, may apply for citizenship of the Republic of Slovenia within one year after the present Act enters into force if he or she meets the requirements set forth in ... this Act. When deciding under the preceding subsection whether the applicant meets the requirements set forth in ... this Act, the competent authority may take into consideration the length of the applicant’s stay in the State, his or her personal, family, business, social and other ties with the Republic of Slovenia and the consequences a refusal of citizenship would have for the applicant. ...” 207. The relevant provisions of the Aliens Act read as follows: “A foreigner who enters the territory of the Republic of Slovenia with a valid passport may remain there for three months or as long as the validity of an issued visa allows him or her to, unless otherwise provided by an international agreement ... A foreigner wishing to remain on the territory of the Republic of Slovenia for longer than provided for by the preceding subsection for reasons of education, specialisation, employment, medical treatment, professional experience, or because he or she has married a citizen of the Republic of Slovenia, has immovable property on the territory of the Republic of Slovenia, or enjoys the rights afforded by employment in the State or for any other valid reason requiring his or her residence in the State, must apply ... for a temporary residence permit. ...” “A permanent residence permit may be issued to a foreigner who has been living on the territory of the Republic of Slovenia continuously for at least three years on the basis of a temporary residence permit and meets the requirements set forth in the second subsection of section 13 of this Act for permanent residence on the territory of the Republic of Slovenia ...” “A foreigner residing on the territory of the Republic of Slovenia on the basis of a foreign passport, a visa or an entrance permit, or an international agreement ... or who has been issued with a temporary residence permit ... may be refused leave to remain: (i) if reasons of public order, security or defence of the State so demand; (ii) if he or she refuses to abide by a decision of the State authorities; (iii) if he or she repeatedly breaches public order, national border security or the provisions of this Act; (iv) if he or she is convicted by a foreign or national court of a crime punishable by at least three months’ imprisonment; (v) if he or she no longer has sufficient means of subsistence and his or her subsistence is not otherwise secured; (vi) for the protection of public health.” “An authorised officer of the internal affairs authority may take a foreigner who fails voluntarily to leave the territory of the Republic of Slovenia when required to do so by the competent authority or administrative body in charge of internal affairs, or who resides on the territory of the Republic of Slovenia beyond the period provided for in section 13(1) of this Act or beyond the period allowed in the decision granting temporary residence, to the State border or diplomatic/consular representation of the State of which he or she is a citizen, and direct such person to cross the border or hand him or her over to the representative of a foreign country. The internal affairs authority concerned shall order any foreigner who does not leave the territory of the Republic of Slovenia in accordance with the preceding subsection, and cannot be removed immediately for any reason, to reside in a transit centre for foreigners for a period not exceeding thirty days if there exists a suspicion that he or she will seek to evade this measure. An internal affairs authority may designate a different place of residence for a foreigner who is unable to leave the territory of the Republic of Slovenia immediately but has sufficient means of subsistence.” “Until the decision issued in the administrative proceedings concerning the request for citizenship becomes final, the provisions of this Act shall not apply to citizens of the SFRY who are citizens of other republics and who apply for Slovenian citizenship in accordance with section 40 of the Citizenship of the Republic of Slovenia Act within six months after it enters into force. As regards citizens of the SFRY who are citizens of other republics but either do not apply for citizenship of the Republic of Slovenia within the time-limit set out in the previous subsection or are refused citizenship, the provisions of this Act shall apply two months after the expiry of the time-limit within which they could have applied for citizenship or after the decision made in respect of their application became final.” “... Permanent residence permits issued in accordance with the Movement and Residence of Foreigners Act ... shall remain valid if the foreign holder of such a permit had permanent residence on the territory of the Republic of Slovenia when this Act came into force.” 208. In order to facilitate the acquisition of permanent residence permits for citizens of the other former SFRY republics who had either failed to apply for Slovenian citizenship or had not acquired residence permits under the Aliens Act, on 3 September 1992 the Government adopted the following decision: “... in examining applications for permanent residence permits for aliens referred to in section 16 of the Aliens Act ..., the Ministry of the Interior shall consider that the condition for permanent residence in the territory of the Republic of Slovenia has been met when the alien has had permanent residence registered for at least three years and was actually residing here before the provisions of the Aliens Act started applying to him.” 209. The 1999 Aliens Act replaced the Aliens Act of 1991. Several amendments were made to the 1999 Aliens Act in the subsequent years. In 2011 it was replaced by a new Aliens Act (Official Gazette, no. 50/2011). 210. The relevant provisions of the Legal Status Act, enacted further to the Constitutional Court’s decision of 4 February 1999 (see paragraphs 4148 above), provide: “Citizens of another successor State to the former SFRY (hereinafter ‘foreigners’) who were registered as permanent residents on the territory of the Republic of Slovenia on 23 December 1990 and are actually resident in the Republic of Slovenia, and foreigners who were actually resident in the Republic of Slovenia on 25 June 1991 and have been living there continuously ever since, shall be issued with a permanent residence permit, regardless of the provisions of the Aliens Act ..., if they meet the requirements set forth in this Act.” “An application for permanent residence shall be submitted within three months after this Act enters into force ... A foreigner who has lodged an application for permanent residence pursuant to section 40 of the Citizenship of the Republic of Slovenia Act ..., but has received a decision refusing to grant his application, may submit an application under the preceding subsection within three months after this Act enters into force or the decision became final, if such decision is issued after this Act entered into force...” 211. On 24 July 2011 the amended Legal Status Act (Zakon o spremembah in dopolnitvah Zakona o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji, Official Gazette no. 50/2010) came into force. Section 1 (č) of the Act provides: “Actual residence in the Republic of Slovenia for the purposes of this Act shall mean that an individual has the centre of his or her life interests in the Republic of Slovenia, this being determined on the basis of his or her personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between an individual and the Republic of Slovenia. Justifiable absence from the Republic of Slovenia because of reasons referred to in the third subsection of this section shall not mean an interruption of actual residence in the Republic of Slovenia. The condition of actual residence in the Republic of Slovenia shall be met if the person left the Republic of Slovenia and his or her continuous absence was not longer than one year, irrespective of the reason for the absence. The condition of actual residence in the Republic of Slovenia shall also be met in the event that the absence was longer than one year but was justifiable for the following reasons: - if the person left the Republic of Slovenia as a consequence of removal from the Register of Permanent Residents; - if the person left the Republic of Slovenia because he or she was assigned to work, study or undergo medical treatment by a legal entity from the Republic of Slovenia or, in the case of a minor, by his or her parents or guardians, or if the person was an employee on a ship with a home port in the Republic of Slovenia, during the period of posting, study or treatment or the period of employment on the ship; - if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated; - if the person could not return to the Republic of Slovenia because of the state of war in other successor States to the former Socialist Federal Republic of Yugoslavia, or for medical reasons; - if the person was expelled from the Republic of Slovenia pursuant to section 28 ... or section 50 of the Aliens Act ..., unless the person was an alien expelled from the country as a sanction for having committed a criminal offence; - if the person was refused entry to the Republic of Slovenia, except where entry was refused because of the imposition of a secondary sanction of expulsion for having committed a criminal offence ... If the absence for reasons referred to in the preceding subsection, except for those referred to in the second indent, lasted more than five years, it shall be deemed that the condition of actual residence is satisfied for the period of five years and for a further period of five years only if the conduct of the person demonstrates that, during the period of absence, the person tried to return to the Republic of Slovenia and to continue his or her actual residence there. For the purposes of this Act, a permanent residence permit or a specific decision on a retroactive permanent residence permit and registered permanent residence or a supplementary decision issued pursuant to point 8 of the Constitutional Court decision ..., no U-1-246/02-28 of 3 April 2003 ... shall not mean that the condition of actual residence in the Republic of Slovenia in proceedings initiated under the Citizenship of the Republic of Slovenia Act is met.” 212. The relevant provision of the Rules provides: “The Register of Permanent Residents contains data on citizens of the Republic of Slovenia who have registered permanent residence in the territory of the municipality. In the Register of Permanent Residents, the competent authority shall identify citizens of the Republic of Slovenia who travel abroad temporarily for more than three months, and persons to whom the authority has declined registration of permanent residence ...” 213. The relevant provision of the State Attorney Act provides: “If a person intends to initiate civil or other proceedings against an entity defended by the State Attorney, this person should first submit a proposal to the State Attorney’s Office for resolution of the disputed relationship before the beginning of the proceedings. The State Attorney should as soon as possible, and not later than in thirty days, act appropriately and inform the person concerned of its position.” 214. The relevant parts of the Constitutional Court’s decision of 4 February 1999 (see paragraphs 41-48 above) read as follows: “At the session of 4 February 1999 concerning the proceedings for the review of constitutionality commenced on the initiative of B.M. and V.T. ..., the Constitutional Court gave the following decision: 1. The Aliens Act (Official Gazette of RS, Nos. 1/91-1, 44/97 and 50/98) is inconsistent with the Constitution in that it fails to determine the conditions for the acquisition of a permanent residence permit by the persons referred to in subsection 2 of section 81 upon the expiry of the period during which they had the possibility of applying for citizenship of the Republic of Slovenia, if they did not do so, or after the date on which the decision on refusal to grant citizenship became final. ... 3. The inconsistency as established in paragraph 1 of the operative provisions shall be eliminated by the legislature within six months from the date of publication of this decision in the Official Gazette of the Republic of Slovenia. 4. Pending the elimination of the inconsistency established in paragraph 1 above, no deportation order as referred to in section 28 of the Aliens Act shall be made against citizens of any other republic of the former Socialist Federal Republic of Yugoslavia if on the date of the plebiscite of 23 December 1990 they were registered as having permanent residence in, and are actually resident in, the Republic of Slovenia. Reasons: ... 14. The Constitutional Court finds that the provisions of subsection 2 of section 13 and subsection 1 of section 16 of the Aliens Act should not apply to citizens of other republics who have not acquired the citizenship of the Republic of Slovenia. Neither should the competent authorities have transferred these persons from the existing Register of Permanent Residents to the Register of Aliens ex proprio motu, without any decision or notification being addressed to the persons concerned. There was no statutory basis whatsoever for them to take such action. The Inhabitants’ Evidence of Residence and Population Registry Act, which is invoked by the Government in its explanations, does not contain any provisions on the removal of permanent residents from the Register on the basis of the Act itself. Neither is the Government empowered by statute to adopt individual decisions determining the manner in which statutory provisions are to be implemented. On the basis of Article 120 of the Constitution, duties and functions associated with public administration are to be conducted independently and at all times pursuant to, and in a manner consistent with, the Constitution and the law. When the Government found that the Aliens Act could not also be applied in practice to citizens of other republics, it should have proposed that the legislature regulate their legal position, and should not have interfered with the legislative power by adopting a decision. 15. For the foregoing reasons, the Aliens Act, whose transitional provisions do not regulate the legal status of citizens of other republics who had permanent residence in the Republic of Slovenia and were actually resident in its territory, has violated the principles of a law-governed State under Article 2 of the Constitution. For this reason, the citizens of other republics, upon the expiry of the time-limits set in subsection 2 of section 81, found themselves in an insecure legal position. From the text of the transitional provisions, which specify that the provisions of the Aliens Act are to be applied, the said persons could not have grasped what their position would be as foreigners and which statutory provisions should apply to them. Accordingly, the Constitutional Court concludes that, because the legal position of citizens of other republics as foreigners has not been regulated in the Republic of Slovenia, the principle of legal certainty as one of the principles of a law-governed State has been violated. 16. The principle of legal certainty guarantees to the individual that the State will not make his or her legal position worse without justified reasons. It was quite justified that citizens of other republics who did not opt for Slovenian citizenship should not expect that they would be made equal to foreigners who had only just come into the Republic of Slovenia and that they would be deprived of permanent residence, without, moreover, being given any notice whatsoever. ...” 215. The relevant parts of the Constitutional Court’s decision of 3 April 2003 (see paragraphs 58-60 above) read as follows: “At a session held on 3 April 2003 in the proceedings to examine petitions and in the proceedings to review constitutionality commenced upon petitions by the Association of the Erased of Slovenia, Ptuj, and others, represented by M.K. ... and N.M.P. ... , the Constitutional Court decided as follows: 1. The Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) is inconsistent with the Constitution, as it does not recognise citizens of other republics of the former SFRY who were removed from the Register of Permanent Residents on 26 February 1992 as having permanent residence from the aforementioned date. 2. The Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution, as it does not regulate the acquisition of a permit for permanent residence by citizens of other republics of the former SFRY as referred to in the previous paragraph whose forcible removal as a foreigner was ordered under section 28 of the Aliens Act (Official Gazette RS, No. 1/91-1 and 44/97). 3. Section 1 of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution for the reasons mentioned in the reasoning of this decision. 4. Subsections 1 and 2 of section 2 of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia are abrogated in the parts in which they determine a time-limit of three months for submitting an application for the issuance of a permit for permanent residence. ... 7. The legislature is obliged to remedy the unconstitutionalities established in paragraphs 1, 2 and 3 of the operative provisions within six months from the date of the publication of this decision in the Official Gazette of the Republic of Slovenia. 8. The permanent residence status of citizens of other republics of the former SFRY is hereby established from 26 February 1992 onwards if they were removed on that day from the Register of Permanent Residents, by means of a permit for permanent residence issued on the basis of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia, the Aliens Act (Official Gazette RS, Nos 1/91-1 and 44/97), or the Aliens Act (Official Gazette RS, No. 61/99). The Ministry of the Interior must as an official duty issue supplementary decisions on the establishment of their permanent residence in the Republic of Slovenia from 26 February 1992 onwards. R e a s o n s : ... 15. As the challenged Act does not enable citizens of other republics to acquire permanent resident status from the day when it was not formally recognised in their case [that is, when such status was taken away], and thus only partially remedies the established unconstitutionality, it is inconsistent with the Constitution. The principle of legal certainty as one of the principles of a State governed by the rule of law under Article 2 of the Constitution requires that the position of the persons concerned should not remain unregulated for any period of time. Permanent resident status is an important linking aspect for claiming certain rights and legal benefits which the persons concerned could not claim owing to the legally unregulated state of affairs. Their position in the Republic of Slovenia was legally uncertain owing to the unregulated state of affairs, as by acquiring the status of foreigner they lost their permanent resident status in the territory of the Republic of Slovenia and found themselves in an unregulated position or in an essentially worsened legal position (for example, that of having temporary resident status), which has lasted, in the case of some of the adversely affected persons, for as much as ten years. From the recommendation that the National Assembly made in the light of the 7th annual report of the Human Rights Ombudsman for the year 2001 (Official Gazette RS, No 2/03), it follows that the issue of the legal position of such citizens of other republics still calls for legal regulation. ... 22. On account of the fact that their permanent resident status was not recognised from the day when their legal status was, following the gaining of independence by the Republic of Slovenia, changed to the [different] status of a foreigner, citizens of other republics were not able to assert certain rights that they would have otherwise been entitled to as foreigners permanently residing in the Republic of Slovenia. The petitioners did not explicitly define these rights; however, from the decisions of the Constitutional Court it follows that these concerned, in particular, the right to the advance payment of a military pension, the right to social-security benefits and the ability to change one’s driving licence. ...” 216. The Arbitration Commission of the Conference on Yugoslavia (commonly known as the Badinter Arbitration Commission, chaired by Mr Robert Badinter) was a commission set up by the Council of Ministers of the European Economic Community on 27 August 1991 to provide the Conference on Yugoslavia with legal advice. The Badinter Arbitration Commission handed down fifteen opinions on “major legal questions” arising from the dissolution of the SFRY. 217. In its Opinion No. 9, the Commission considered how the problems of State succession resulting from the dissolution of the SFRY should be resolved. It ruled that they should be resolved by mutual agreement between the various successor States. 218. The principal Council of Europe instrument concerning citizenship is the European Convention on Nationality, which was adopted on 6 November 1997 and entered into force on 1 March 2000. Slovenia has not signed this convention, the relevant part of which reads: “1. In matters of nationality in cases of State succession, each State Party concerned shall respect the principles of the rule of law, the rules concerning human rights and the principles contained in ... this Convention ..., in particular in order to avoid statelessness. 2. In deciding on the granting or the retention of nationality in cases of State succession, each State Party concerned shall take account in particular of: (a) the genuine and effective link of the person concerned with the State; (b) the habitual residence of the person concerned at the time of State succession; (c) the will of the person concerned; (d) the territorial origin of the person concerned. ...” 219. On 19 May 2006 the Council of Europe adopted the Convention on the Avoidance of Statelessness in relation to State Succession. This convention entered into force on 1 May 2009. Slovenia has not signed it. The relevant parts read as follows: “1. A successor State shall grant its nationality to persons who, at the time of the State succession, had the nationality of the predecessor State, and who have or would become stateless as a result of the State succession if at that time: (a) they were habitually resident in the territory which has become territory of the successor State, or (b) they were not habitually resident in any State concerned but had an appropriate connection with the successor State. 2. For the purpose of paragraph 1, sub-paragraph b, an appropriate connection includes inter alia: (a) a legal bond to a territorial unit of a predecessor State which has become territory of the successor State; (b) birth on the territory which has become territory of the successor State; (c) last habitual residence on the territory of the predecessor State which has become territory of the successor State.” “States concerned shall take all necessary steps to ensure that persons concerned have sufficient information about rules and procedures with regard to the acquisition of their nationality.” 220. On 26 May 2005 the Advisory Committee on the Framework Convention for the Protection of National Minorities adopted its second opinion concerning Slovenia and expressed concern about the problematic situation of the “erased”. On 1 December 2005 the Government filed their written comments (see the relevant part of the report in Kurić and Others v. Slovenia, no. 26828/06, § 262, 13 July 2010 – hereinafter referred to as “the Chamber judgment”). 221. On 14 June 2006 the Committee of Ministers of the Council of Europe adopted Resolution ResCMN(2006)6 on the implementation of the Framework Convention for the Protection of National Minorities by Slovenia. It noted as an issue of concern the situation of the “erased”. 222. The Council of Europe Commissioner for Human Rights has addressed the issue of the “erased” on a number of occasions and addressed recommendations to the Government in order to remedy the situation (see the relevant extracts of the Commissioner’s reports in paragraphs 264-265 of the Chamber judgment). 223. Further to his visits, during which he discussed the issue of the “erased” with the Slovenian authorities, he sent letters to the Prime Minister in office. In his letter of 10 May 2011 he expressed appreciation of the Government’s determination to find a solution for “the erased”. He welcomed the enactment of the amended Legal Status Act. He nevertheless expressed concern that the law did not fully remedy the negative impact of the “erasure”. Only 127 of the “erased” had submitted requests under the new law at that time and thirty-two of them had been rejected. The fulfilment of the condition of actual residence for those who had left Slovenia for longer than ten years continued to be a problem in his view. He was also concerned by the non-existence of any reparation mechanism at the domestic level that would provide redress to the “erased”. He added that a number of the “erased” persons had become stateless and drew attention to the Council of Europe’s international-law instruments on the avoidance and the reduction of statelessness and the need for Slovenia to ratify them. 224. On 13 February 2007 the European Commission against Racism and Intolerance (“ECRI”) published its third report on Slovenia, which was adopted on 30 June 2006. This report described the situation of the “erased” and made recommendations to the Government (for the relevant extracts see paragraph 266 of the Chamber judgment). 225. In 1961 the United Nations adopted the Convention on the Reduction of Statelesness. Slovenia has not ratified it. 226. In 1999 the International Law Commission of the United Nations adopted the Draft Articles on Nationality of Natural Persons in relation to the Succession of States. Article 6 of the Draft Articles states as follows: “Each State concerned should, without undue delay, enact legislation on nationality and other connected issues arising in relation to the succession of States consistent with the provisions of the present draft articles. It should take all appropriate measures to ensure that persons concerned will be apprised, within a reasonable period, of the effect of its legislation on their nationality, of any choices they may have there under, as well as of the consequences that the exercise of such choices will have on their status.” 227. On 24 August 2010 the United Nations Committee on the Elimination of Racial Discrimination issued concluding observations stating, inter alia: “While taking note of the adoption in March 2010 of the law regulating the legal status of the ‘erased’ people, the Committee remains concerned at the situation of the non-Slovenes from the former Yugoslavia, including Bosnians, ethnic Albanians from Kosovo, Macedonians and Serbs, whose legal status remains unresolved and who are therefore facing difficulties in terms of access to social and economic rights, such as access to healthcare services, social security, education and employment. The Committee is also concerned that the new law does not envisage any outreach campaign directed towards the ‘erased’ people living abroad in order to inform them of its existence ... The Committee recommends that the State party: (a) Resolve definitely the legal status of all concerned citizens from the former Socialist Federal Republic of Yugoslavia States presently living in Slovenia; (b) Ensure the full enjoyment of their economic and social rights including the access to health services, social security, education and employment; (c) Conduct an outreach campaign to inform the ‘erased’ currently living outside Slovenia of the existence of the new legislative measures and the possibility of benefiting from them; and (d) Grant full reparation, including restitution, satisfaction, compensation, rehabilitation and guarantees of non-repetition, to all individuals affected by the ‘erasure’.” 228. On 20 June 2011 the United Nations Committee against Torture issued its concluding remarks, stating, inter alia: “While noting the legislative measures taken to amend the Act Regulating the Legal Status of citizens of Former Socialist Federal Republic of Yugoslavia Living in the Republic of Slovenia in order to remedy the provisions that were found to be unconstitutional, the Committee remains concerned that the State party failed to enforce the Act and to restore the residency rights of persons, known as the ‘erased’, originating from other Yugoslav republics whose permanent residence in Slovenia was unlawfully revoked in 1992 and already returned to other republics of Former Socialist Republic of Yugoslavia. The Committee is concerned that the discrimination against the so called ‘erased’ persons, including against those who belong to Roma community, is persistent (arts. 3 and 16). In light of its general comment No. 2 (2008) on implementation of article 2 by States parties, the Committee recalls the special protection of certain minorities or marginalized individuals or groups especially at risk is part of the State party’s obligations under the Convention. In this respect, the Committee recommends that the State party takes measures to restore the permanent resident status of the so-called ‘erased’ persons who were returned to other States in Former Socialist Federal Republic of Yugoslavia. The Committee also encourages the State party to facilitate the full integration of the ‘erased’ persons, including of those who belong to Roma communities and guarantee them with fair procedures for application for citizenship.”
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train
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001-98664
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ENG
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TUR
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CHAMBER
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CASE OF BARAN AND HUN v. TURKEY
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Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
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4. The applicants were born in 1973 and 1965 respectively. At the time of lodging the application, they were in Bayrampaşa and Edirne prisons respectively. 5. On 21 July 1995 a hand grenade was thrown at a police service vehicle in the Gaziosmanpaşa district of Istanbul. Around fifteen police officers were injured. An illegal armed organisation, namely the TDP (the Turkish Revolutionary Party), took responsibility for the incident. Following this incident the police carried out an operation against members of the TDP. 6. On 4 and 5 August 1995 respectively, the applicants were arrested and taken into custody on suspicion of their involvement in the TDP. They remained in police custody until 17 August 1995. 7. On 11 and 13 August 1995 respectively, the second and first applicants were questioned by police officers at the Anti-Terrorist Branch of the Istanbul Security Headquarters, where they gave a detailed signed account of the activities in which they had taken part within the TDP. On 14 August 1995 the second applicant was questioned again. On that date the first applicant took part in a reconstruction of events concerning the bombing of the police vehicle. On various dates the applicants also took part in identification procedures via photographs. 8. In the application form the applicants complained that they had been subjected to torture while they were being held in police custody. In this connection, they maintained that they were put in a dirty and unventilated cell, deprived of sleep, food and water, blindfolded, sworn at and threatened, made to listen to loud music, beaten, stripped, hosed with water from a high-pressure hose, made to stand in front of a fan and suspended. The first applicant further claimed to have been subjected to sexual harassment, stripped and suspended, and that her hair and fingers had been pulled and a weight put on her feet. 9. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that she had a bleeding nose, pain in the groin, two 1-cm grazes on her right arm and a circular swelling on the right wrist, weakness and numbness on both arms, pain in two of the fingers of the right hand and a 2 x 1 cm graze on the right knee. The doctor further mentioned bleeding due to a gynaecological trauma which had occurred approximately fifteen days previously. However, he stated that the applicant had refused a gynaecological examination. 10. On 18 August 1995 the applicant was examined by the prison doctor, who noted, inter alia, that she had widespread back and waist pain, together with a loss of power and numbness in both arms. The doctor further found a number of bruised and swollen areas of various sizes on the applicant's body, notably under her armpits, right arm and wrist, left arm, knees, legs and ankles. Finally, he mentioned that the applicant had pain in her left ovary and bladder region. 11. On 30 October 1995 the applicant was examined by doctors at the Third Section of Expertise of the Forensic Medicine Institute. The doctors also checked the applicant's previous medical reports and the results of an EGM test. They concluded that the applicant was suffering from bilateral brachial plexitis (damage to nerves). 12. According to a number of reports, consultation notes, a medical scan and the analysis contained in the case file, the applicant, who has been diagnosed with irreversible brachial plexitis in her right arm and reversible brachial plexitis in her left arm, was treated mainly with physical therapy for over one and a half years. As a result, her left arm improved. However, her right arm is irreversibly damaged. 13. On 19 October 1998 the applicant was examined by the doctors at the Third Section of Expertise of the Forensic Medicine Institute. On 18 December 1998, upon the request of the Istanbul Assize Court, the Third Section of Expertise (Ihtisas Kurulu) submitted their opinion, in which they considered that the applicant's left arm was near to normal but that her right arm was paralysed and that this constituted a permanent invalidity (uzuv zaafı). 14. On 17 August 1995 the applicant was examined by a doctor at the Forensic Medicine Institute at the State Security Court, who noted that he had pain and difficulty in moving his neck, pins and needles in the right hand and pain under his left arm. 15. On 2 July 1998 the applicant was examined by a doctor at the Medical Faculty of Istanbul University, who diagnosed him as suffering from cervical herniated disc syndrome. The applicant was treated with a neck brace and medication. However, the doctor noted that, since this condition was permanent, the applicant had to be monitored and treated continuously. 16. On 17 August 1995 the applicants were brought before a public prosecutor and a judge at the Istanbul State Security Court, where they refused to give any statements as a protest, on the ground that they had been subjected to torture while in police custody. 17. On 21 September 1995 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicants and other suspects, charging them with undermining the constitutional order of the State under Article 146 of the Criminal Code. In particular, the first applicant was accused of having participated in the bombing of the police vehicle on 21 July 1995. 18. On an unspecified date the criminal proceedings commenced before the Istanbul State Security Court. The applicants were both represented by the same lawyer, Mrs G. Tuncer. At a hearing held on 19 December 1995 the applicants' lawyer maintained that her clients had been subjected to torture and asked the court to request the authorities to initiate a criminal investigation (suç duyurusu). The Istanbul State Security Court dismissed this request, stating that the applicants could lodge their complaints themselves with the public prosecutor's office and that there was no need for the court to do so. 19. In the course of the trial the court heard the accused, some of the police officers who had been injured during the bombing of the police vehicle and the police officers who had taken part in various measures during the applicants' detention. During the hearing of one such police officer, the first applicant and another co-accused asked the court not to hear him, alleging that this man was a torturer and had tortured them. The court further examined the video recordings of the reconstruction of events concerning the bombing of the police vehicle. On 19 December 1995, 22 May 1997 and 9 November 1999, the second applicant submitted his written statements to the court. Only in the first one did he claim that he had retracted his police statements because he had signed them under duress and torture without having had the opportunity to read them. In later submissions the applicant principally maintained that he was a revolutionary, but that he had no relationship with any illegal organisation. In particular, he submitted that the guns and bombs found at his house belonged to one of the accused, who had requested the use of a cupboard for his personal belongings, had brought them in a bag and had asked him to guard them. The applicant had had no prior knowledge of their existence. 20. On 19 December 1995, 1 September 1998 and 4 February 2000, the first applicant submitted her written statements to the court. Except for the second one in which she criticised the State Security Court system, the applicant submitted a detailed account of the ill-treatment she had been subjected to in police custody and denied involvement in any illegal organisation. She submitted that the materials found at the house where she was staying with the second applicant belonged to one of the coaccused and that she did not know what they were. Likewise she gave explanations regarding her fake identity card and marriage certificate. 21. On 22 May 1997 the Istanbul State Security Court found the applicants guilty of the accusations against them and convicted the first applicant under Article 146 of the Criminal Code and the second applicant under Article 168 of the Criminal Code. 22. On 27 March 1998 the Court of Cassation quashed the judgment of the first-instance court on the ground that the final hearing had been held in the absence of the first applicant despite the fact that she had had a valid medical report excusing her. The hearing had thus violated her defence rights. In view of the factual and legal relationship between the accused the court held that the first-instance court's judgment had to be quashed in respect of all the defendants. 23. On an unspecified date the case was remitted to the firstinstance court whereupon the latter held regular hearings. It appears that after the capture of Abdullah Öcalan the applicants and some of the accused informed the court that they were on an unlimited hunger strike in protest. Moreover, in a number of hearings held after 1 September 1998, the applicants refused to appear before the court on the ground that the European Court of Human Rights had found that State Security Courts lacked independence and impartiality. On 27 October 1998 the applicants' representative informed the court that she would no longer be attending the hearings and asked the court to discontinue the proceedings on the ground that they were not an independent and impartial tribunal, as the European Court of Human Rights had ruled. 24. In the meantime, on 21 December 2000, Law no. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated. However, the benefits of this Law were not available to persons who had committed offences under Articles 146 and 168 of the Criminal Code. Thus, it was not applicable to the applicants' case. On 24 January 2001 the applicants unsuccessfully requested the Court of Cassation to send the case file to the Constitutional Court for an examination of the compatibility of this Law with the relevant provisions of the Constitution. 25. On 2 March 2000 the Istanbul State Security Court found the first applicant guilty of undermining the constitutional order of the State and sentenced her to life imprisonment under Article 146 of the Criminal Code. In its decision the court took into account the evidence in the case file, which included documents regarding the illegal organisation found at the applicant's house, expert reports, verbatim records regarding identification procedures, the photograph of her taken at the incident scene, the verbatim records of the reconstruction of events and the verbatim records of the video recording regarding the reconstruction of events. The court noted that there were proceedings pending before the domestic courts regarding the applicant's allegations of ill-treatment during police custody. However, it considered that it need not await their outcome since its decision to convict the applicant did not rely solely on her police statements but on material evidence. 26. The same day the court found the second applicant guilty of membership of an illegal armed organisation under Article 168 of the Criminal Code and sentenced him to twelve years and six months' imprisonment. In so doing, it took into account the evidence in the case file, including the applicant's statements given whilst in police custody, the verbatim records of the reconstruction of the events, the statements of other suspects, documents regarding the illegal organisation and other evidence, such as guns and chemical explosive materials found at his house. In its decision the court also noted that the accused had unnecessarily prolonged the criminal proceedings after the case was remitted by the Court of Cassation, by not appearing before the court, maintaining a hunger strike, requesting extensions and obtaining medical reports excusing their participation on hearing days. 27. The applicants appealed. They maintained, in particular, that the first-instance court had failed to conduct an additional investigation, that it had refused their request for the hearing of key witnesses or the conduct of a reconstruction of events so as to dispel factual contradictions. They criticised the manner in which the domestic court had interpreted evidence. Moreover, the applicants complained that the first-instance court had based itself on evidence obtained unlawfully. In this connection, they maintained that the domestic court had relied on their police statements despite medical reports attesting to their torture. They further submitted that the other documents secured by the police during the preliminary investigation had also been obtained unlawfully. Finally, the applicants maintained that the court had erred in the qualification of the offence. 28. On 29 January 2001 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court. 29. Upon the first applicant's complaint, via her legal representative Ms G. Tuncer, an investigation was instigated by the Fatih public prosecutor. 30. Between 29 January 1996 and 6 March 1996, the Fatih public prosecutor heard evidence from five police officers who had taken part in the applicant's arrest and interview. They all denied the applicant's allegations of ill-treatment. 31. On 28 March 1996 the Fatih public prosecutor heard evidence from the applicant. She gave a detailed account of the alleged ill-treatment which included beating, being left wet in the cold, sexually molested and periodically suspended. The applicant also gave brief descriptions of the alleged perpetrators. 32. On 18 June 1996 the Fatih public prosecutor sent his opinion to the Istanbul public prosecutor with a view to criminal proceedings for ill-treatment being brought against five police officers working at the Anti-Terrorist Branch of the Istanbul Security Headquarters. 33. On 26 June 1996 the Istanbul public prosecutor filed a bill of indictment against the five officers for the ill-treatment of Ms Baran. The charges were brought under Article 243 of the Criminal Code. 34. On 15 October 1996 the criminal proceedings against the accused police officers commenced before the Istanbul Assize Court. 35. In the hearings held on 8 May and 11 October 1997, the court heard evidence from the applicant, who gave details regarding the ill-treatment and identified the accused police officers as those responsible, except for one about whom she was not sure. On the latter date, the court also heard the testimony of Mr K.Y., another detainee and witness on behalf of the applicant. 36. On 6 May 1998 the court heard testimony of Ms A.E., another detainee and witness on behalf of the applicant. 37. On 12 March 2002 the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offence, five years at the time of the events, had become time-barred. This decision was upheld by the Court of Cassation on 19 February 2004. 38. On 17 June 2003 the President of the Republic, referring to a Forensic Medicine Institute's report dated 21 April 2003, remitted the remainder of Ms Baran's sentence on grounds of chronic illness, pursuant to Article 104 § b of the Constitution. The applicant was released from prison on 24 July 2003. 39. The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in the following judgments: Kolu v. Turkey (no. 35811/97, § 44, 2 August 2005), Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008), Batı and Others v. Turkey (nos. 33097/96 and 57834/00, ECHR 2004-IV), and Zeynep Özcan v. Turkey (no. 45906/99, 20 February 2007).
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001-96484
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RUS
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CHAMBER
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CASE OF MAKARENKO v. RUSSIA
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No violation of Article 5 - Right to liberty and security;Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 10 - Freedom of expression -{General}
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Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
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5. The applicant was born in 1949 and lived until his arrest in the town of Smolensk. He is a former deputy governor of the Smolensk Region. 6. On 24 October 2002 criminal proceedings were instituted against several officials of the Smolensk Regional Council on suspicion of money laundering and fraud. 7. On 2 December 2002 the applicant was arrested in the Smolensk Regional Prosecutor's office where he had been invited for questioning. He was transferred to the Smolensk Regional Department of the Federal Security Service (hereinafter – the FSB). A record of his arrest, drawn up at 2 p.m. on the same day and produced by the Government, indicated that certain documents were found and seized from the applicant's office. Those documents and other evidence, including witness statements, linked the applicant to or placed him in charge of private and State-owned enterprises implicated in money laundering and fraudulent activities and served as the basis for suspecting the applicant of having participated in an aggravated fraud. The relevant part of the record read as follows: “[The applicant], who is suspected of having committed a serious criminal offence, was arrested according to subparagraphs 1, 2 and 3 of paragraph 1 of Article 91 of the Russian Code of Criminal Procedure, and because the pre-trial investigating authorities have sufficient grounds to believe that, if released, he may abscond..., threaten witnesses, destroy evidence or in any other way obstruct the investigation in the present case.” The applicant signed the record, making a handwritten objection to his arrest and the accusations against him. 8. On the following day a senior investigator of the Smolensk Regional FSB Investigative Division, with the consent of the acting Smolensk Regional Prosecutor, lodged an application with the Leninskiy District Court of Smolensk, seeking authorisation for the applicant's detention on remand. The application contained a lengthy description of the fraudulent activities of a number of private and State-owned enterprises in which the applicant had allegedly taken part. The senior investigator also drew the District Court's attention to other circumstances warranting the applicant's detention, namely the likelihood that he would abscond and pervert the course of justice. 9. On 3 December 2002 the Leninskiy District Court authorised the applicant's detention, finding that he was accused of having committed a serious crime and that, if released, he might threaten witnesses, destroy evidence and obstruct justice. 10. The applicant's lawyer appealed against the decisions authorising the arrest and detention. In particular, she complained that there was no evidence which could serve as grounds for the applicant's arrest and that if such evidence did exist, it had not been listed in the record of the applicant's arrest. According to the lawyer, the authorities did not put forward any evidence justifying the conclusion that the applicant was liable to abscond or obstruct justice. 11. On 11 December 2002 the Smolensk Regional Court upheld the decision of 3 December 2002, holding as follows: 's application is substantiated because [the applicant] may threaten witnesses, destroy evidence in the case and obstruct adjudication of the case.” 12. Two weeks later, on 26 December 2002, the Leninskiy District Court rejected the lawyer's complaint concerning the applicant's arrest, finding that the arrest had been effected in compliance with Article 91 § 1 of the Russian Code of Criminal Procedure. 13. On 6 February 2003 the Smolensk Regional Court, endorsing the reasons given by the District Court, upheld the decision of 26 December 2002. 14. On 31 January 2003 the Leninskiy District Court extended the applicant's detention until 24 April 2003, holding that there were no grounds warranting his release. 15. The applicant's lawyer appealed. In particular, she complained that the District Court had not put forward any reason necessitating the extension of the applicant's detention. 16. On an unspecified date the Smolensk Regional Court upheld the decision of 31 January 2003. 17. On 22 April 2003 the Leninskiy District Court extended the applicant's detention until 1 June 2003, reasoning that additional time was required to perform certain investigative actions. The District Court further held as follows: “[The applicant] is accused of having committed a serious criminal offence; the court remanded him in custody because he was charged with a serious criminal offence, thus, there are no grounds for a change or annulment of [the preventive measure]. The court takes into account that the detention is extended only for one month and eight days. The court takes into account that [the applicant] has minor children, however, in determining the issue of the extension of detention, the court has regard to the fact that [the applicant] is charged with an offence under Article 159 § 3 (b) of the Russian Criminal Code, that is with having committed a serious crime for which the most lenient penalty is five years' imprisonment.” 18. The decision of 22 April 2003 was upheld on appeal. 19. On 30 May 2003 the Leninskiy District Court extended the applicant's detention until 1 September 2003, citing the same reasons as in the decision of 22 April 2003. 20. On 9 June 2003 the Smolensk Regional Court upheld the decision of 30 May 2003, accepting the District Court's reasoning that the applicant was charged with serious criminal offences and that the investigating authorities needed additional time. 21. On 2 July 2003 the applicant's lawyer applied for the applicant's release under his own recognisance not to leave the town. The lawyer argued that the need to hold the applicant in custody had long ceased to exist as the pre-trial investigation had been closed. The lawyer further pointed to circumstances making the applicant's absconding improbable: the applicant had three minor children and permanent places of residence and work, and before his arrest the investigating authorities had summoned him on several occasions and he had never defaulted. 22. On 11 July 2003 the Leninskiy District Court dismissed the request for release. It held that the applicant had been charged with aggravated fraud, money laundering, unlawful possession of ammunition and forgery of documents. A month later the Smolensk Regional Court upheld the decision, endorsing the District Court's findings. 23. On 25 September 2003 the Leninskiy District Court held a preliminary trial hearing, at which the applicant's lawyers petitioned for the applicant's release and discontinuation of the criminal proceedings against him. The District Court dismissed the request for release because the applicant was charged with serious criminal offences, and if released, could abscond or obstruct establishment of the truth. The District Court listed the first trial hearing for 8 October 2003. 24. The applicant's lawyers, Ms Liptser, Ms Karlova and Mr Kravchuk, appealed. 25. On 13 October 2003 the Leninskiy District Court returned the statement of appeal to Ms Liptser, stating that the applicant had refused her services. 26. Ten days later the president of Lawyer's office no. 10 of the Moscow City Bar Association informed the District Court that Ms Liptser and the applicant had signed an agreement according to which Ms Liptser had been entrusted with the authority to appeal against the decision of 25 September 2003. Ms Liptser's statement of appeal against the decision of 25 September 2003 was enclosed. 27. On 30 October 2003 the Leninskiy District Court accepted Ms Liptser's statement of appeal and sent it to the Smolensk Regional Court. Five days later the Regional Court, having heard the arguments by Ms Karlova and Mr Kravchuk, upheld the decision of 25 September 2003. The appeal statement lodged by Ms Liptser was examined by the Regional Court on 30 December 2003 and dismissed as unsubstantiated. 28. At the trial hearing on 8 October 2003 the Leninskiy District Court dismissed the applicant's lawyer's application for the applicant's release. 29. A week later the lawyer lodged an appeal against the District Court's decision. 30. On 18 November 2003 the Smolensk Regional Court, relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, discontinued the appeal proceedings, finding that the release application had been examined and dismissed at the trial hearing and that such a decision was not amenable to appeal. 31. On 13 November 2003 the Leninskiy District Court held a trial hearing. At that hearing the applicant's lawyer asked for the applicant's release under his own recognisance. The District Court dismissed the request, noting that there were no grounds for the release. 32. The applicant's lawyer, invoking Article 5 § 3 of the Convention, appealed against the decision of 13 November 2003. 33. On 30 December 2003 the Smolensk Regional Court upheld the decision of 13 November 2003. The Regional Court held that the grounds warranting the applicant's detention had not changed and, thus, the request for release had been dismissed lawfully. 34. On 19 November 2003 the Leninskiy District Court dismissed another application for the applicant's release. It held that no new grounds authorising the applicant's release had been established. That decision was upheld on appeal on 30 December 2003 by the Smolensk Regional Court, which endorsed the District Court's reasoning. 35. On 24 November 2003 the applicant's lawyer requested the applicant's release on a written undertaking not to leave the town. The Leninskiy District Court refused to examine the request, finding that it was a mere restatement of the lawyer's previous release applications. 36. At the trial hearing on 29 December 2003 the applicant unsuccessfully asked the District Court to release him. On 6 April 2004 the Smolensk Regional Court examined the lawyers' appeal against the decision of 29 December 2003, upholding that decision as lawful. The Regional Court confirmed the District Court's opinion that there were no grounds authorising the applicant's release. 37. On 30 January 2004 the District Court adjourned the proceedings because the applicant's co-defendant was ill. The lawyers unsuccessfully petitioned for the applicant's release. On 16 March 2004 the Regional Court upheld the decision of 30 January 2004 because there were no new grounds justifying the release. 38. On 26 February 2004 the Leninskiy District Court extended the applicant's detention until 26 May 2004. The relevant part of the decision read as follows: “[The applicant] is accused of having committed intentional mercenary and serious crimes. The circumstances which served as the basis for remanding [the applicant] in custody have not changed. New circumstances justifying [the applicant's] release ... have not appeared. The trial investigation has not been finished, [the court] continues to examine the evidence. If released, the accused may obstruct establishment of the truth in the case, abscond or commit new crimes.” 39. On 30 March 2004 the Smolensk Regional Court endorsed the reasons given by the District Court on 26 February 2004 and upheld that decision. 40. On 26 May 2004 the Leninskiy District Court extended the applicant's detention until 26 August 2004 for the same reasons as in the decision of 26 February 2004. That decision became final on 6 July 2004, when the Regional Court upheld it on appeal, finding that the District Court had taken into account all relevant factors, including the applicant's personality, and that it had lawfully extended the detention. 41. On 28 June 2004 the Leninskiy District Court found the applicant guilty of aggravated fraud, unlawful possession of ammunition and forgery of documents and sentenced him to five years' imprisonment. 42. On 12 October 2004 the Smolensk Regional Court amended the judgment of 28 June 2004, discontinued the criminal proceedings on the forgery charge due to the expiration of the statutory limitation period and reduced the sentence by two months. 43. On the morning of 16 May 2002 the applicant's car was shot at several times. The applicant, his five-year old daughter, his bodyguard and his driver were in the car. The applicant was wounded, his bodyguard received serious injuries and the driver was killed. 44. On the same day the applicant gave a press conference, at which he accused Mr M., an FSB general and candidate in the upcoming election of the Smolensk Regional Governor, of having tried to kill him. 45. A complaint lodged by Mr M. with the Smolensk Regional Prosecutor led to the institution of criminal proceedings against the applicant on a charge of criminal libel on 18 May 2002. 46. On 19 August 2002 the applicant, in the presence of his lawyer, Ms Karlova, was served with the final text of the bill of indictment and was questioned as the accused. On the same day Ms Karlova began studying the case file, in compliance with the requirements of Article 53 of the Russian Code of Criminal Procedure. Two days later the applicant and Ms Karlova finished reading the file and made handwritten notes to that effect in a case file record. 47. On 29 August 2002 the applicant was committed to stand trial before the Justice of the Peace of the 7th Court Circuit of Smolensk, which, at the applicant's and Ms Karlova's request, fixed a preliminary hearing for 19 November 2002. 48. At the first trial hearing, held on 19 December 2002, the applicant successfully asked the Justice of the Peace to adjourn the proceedings to allow his lawyer to study the case file. On 22 January 2003 the Justice of the Peace granted another request by the applicant and allowed two other lawyers retained by the applicant to enter the proceedings. 49. A number of trial hearings were held between 22 January and 12 February 2003, at which the applicant was mostly represented by Ms Karlova. 50. At the trial hearing on 6 February 2003 the applicant notified the Justice of the Peace that he no longer intended to participate in the trial and that he had terminated his contracts with all his lawyers. On the same day the Justice of the Peace decided to proceed with the examination of the case in the applicant's absence, dismissed two of the applicant's lawyers from the proceedings and ordered that Ms Karlova, the applicant's third counsel, should continue representing him. The Justice adjourned the hearing until the afternoon of the same day. After the lunch break, the hearing resumed. Ms Karlova read out the applicant's repeated refusal of her services and left the courtroom, without waiting for the Justice's response to it. 51. On 7 February 2003 the Justice of the Peace held that Ms Karlova had committed contempt of court because she had left the courtroom without permission. The Justice also sent a notification to the President of the Smolensk Regional Bar Association concerning Ms Karlova's actions and asking him to ensure that she attended the following hearing. 52. Ms Karlova attended the following hearing. She informed the Justice that she refused to assist the applicant, referring to his refusal of her services. 53. At the following hearing, on 12 February 2003, Ms Karlova defaulted. The Justice of the Peace issued an interim order and again notified the Smolensk Regional Bar Association of Ms Karlova's actions. 54. On the same day the Justice of the Peace found the applicant guilty of aggravated libel and sentenced him to one year's probation. The Justice of the Peace based its judgment on testimonies by the victim and four witnesses who had attended the press conference given by the applicant, a written record and audio and video recordings of the press conference, a letter from the Smolensk Regional Police Department indicating that it had no information concerning participation by Mr M. in any illegal activities and a record of the applicant's questioning. The Justice of the Peace held, in particular: “...the court characterises the actions of [the applicant]... as dissemination of false information defaming the honour and dignity of another person and damaging his reputation, connected to accusation of that person of having committed an especially serious criminal offence, because he, by oral statements [addressed] to a number of persons, disseminated false information concerning the organisation by Mr M. of the attempted murder of [the applicant]. He disseminated that information in an affirmative rather than a presumptive manner. Furthermore, [the applicant] knew that Mr M. was a top ranking governmental official who, at the time the statement was made, was running for election as Governor of the Smolensk Region, thus any discreditable information could damage his reputation in some way. The statements made by [the applicant] were false... unfounded and unsubstantiated: at the time the statements [were made] no criminal proceedings were instituted against Mr M. and no other investigative measures were taken by law enforcement agencies; the statement did not contain references to any reliable evidence or documents proving the truthfulness of the statement, or any reference to sources of information on the basis of which [the applicant] had concluded that Mr M. had participated in the criminal offence committed against him. Undisputedly, [the applicant] understood that, but he publicly and intentionally made the above-mentioned statement in the presence of representatives of the mass media, accusing Mr M. of having committed an especially serious crime, thereby defaming the victim, his honour and his dignity, and [the applicant], in his official position as the deputy Governor of the Smolensk Region, must have been aware of that. At the meeting of the administration of the Smolensk Region of 16 May 2002, [the applicant] only put forward one piece of evidence to substantiate his statement about Mr M.'s involvement in the attempted murder: two days before the [attempted murder] General M. had threatened him ([the applicant]) in the presence of a deputy president of the Smolensk Regional Court, Mr A., and a deputy prosecutor of the Smolensk Region, Ms P. This submission ... was examined in the course of the trial but was not proven, because Mr A. and Ms P., questioned as witnesses in open court, did not confirm it. The court does not see any reason not to trust those witnesses. No other evidence proving the truthfulness of [the applicant's statement] was presented. The court also notes that [there is evidence confirming] the defendant's intention to disseminate the false statements publicly (whatever his reasons) and thus to negatively influence people's opinion of the victim, in order to damage his reputation before the election: firstly, the affirmative, rather than presumptive character of the statement; the content of the [the applicant's] speech before and after the libellous statement; the dissemination of the false information at the meeting of the administration of the Smolensk Region, that is, to individuals who had no right to institute criminal proceedings and verify the statement; the fact that the statement was made on several occasions... after the attempted murder... and in the course of the pre-trial investigation... Moreover, the false character of the statement made by [the applicant] was confirmed by his confession made at a press conference on 28 May 2002, during which he had confirmed that as far as he knew Mr M. had not participated in the attempted murder, and [the applicant] had apologised.” 55. The applicant and his three lawyers appealed against the judgment of 12 February 2003. In particular, they complained that the Justice of the Peace had proceeded with the trial after the applicant refused to participate, and that it had forced Ms Karlova to represent the applicant despite the fact that he had refused the assistance of his three lawyers, including Ms Karlova. Ms Karlova also filed a separate appeal against the interim orders of 7 and 12 February 2003. 56. On 21 November 2003 the Leninskiy District Court of Smolensk, in the presence of the applicant and his three lawyers, upheld the judgment of 12 February 2003. As regards the applicant's complaint concerning his defence rights, the District Court held that under Russian law a lawyer could not refuse to represent a defendant if he had already undertaken such a responsibility. However, the defendant could refuse legal assistance. Such a refusal would not be binding on the court, if the defendant, at the same time, asked for the case to be determined in his absence. Thus, the Justice of the Peace had lawfully ordered that Ms Karlova should continue representing the applicant because the latter had not wished to participate in the trial, had refused the assistance of his lawyers and had not asked the trial court to appoint another lawyer. 57. On the same day the Leninskiy District Court upheld the interim orders of 7 and 12 February 2003. 58. On 27 January 2004 the Smolensk Regional Court, in the final instance, upheld the judgments of 12 February and 21 November 2003 and the interim orders of 7 and 12 February 2003. The applicant and two of his lawyers attended the hearing. 59. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (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”). 60. “Preventive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP). 61. The Russian Constitution of 12 December 1993 provides 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). 62. 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, 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). 63. Before 14 March 2001, remand in custody 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, if they had previously defaulted, had no permanent residence in Russia or 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 allegedly 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. 64. The Codes make a distinction between two types of remand in custody, the first being “during investigation”, that is, while a competent agency – the police or a prosecutor's office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different. 65. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels, but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 66. The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 67. Access to the materials in the file 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, at the request of a prosecutor, may grant an extension of the 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. 68. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant's detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97). 69. From the date the prosecutor refers the case to the trial court, the defendant's detention is classified as “before the court” (or “during judicial proceedings”). 70. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” 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 at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. 71. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” 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). 72. Under the old CCrP, the detainee or his or her counsel or representative could challenge the 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 (Article 331 in fine). 73. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). 74. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). 75. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 76. An appeal against such a decision lies to a 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). 77. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required to do one of the following: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having 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; or (3) to fix a trial date (Article 227). In this last case, the trial proceedings 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. 78. The duration of the entire trial proceedings is not limited in time. 79. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP requires the appeal court to start examining an appeal no later than one month after it is lodged (Article 374). 80. Article 51 of the new CCrP, in so far as relevant, reads as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; 3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; 4) the suspect or the accused does not speak the language in which the proceedings are conducted; 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; 6) the criminal case falls to be examined by a jury trial; 7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons at the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” 81. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may be accepted only if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of procedural actions which have already been performed by that time. 82. The presence of a defendant at the trial is mandatory unless, in a case which does not concern a grave criminal offence, the defendant petitions the court for the case to be examined in his absence (Article 247 §§ 1 and 4 of the new CCrP). 83. Chapters 43-45 of the new CCrP regulate procedure for lodging and examining appeals against judgments taken by justices of the peace. In particular, Article 365 of the Code establishes that a district court, when examining an appeal against a judgment taken by a justice of the peace, should conduct a judicial investigation which includes examination of the parties' submissions and evidence, including the hearing of witnesses, experts, and so on. The district court may, at the parties' request, hear new witnesses, authorise an expert examination, and collect material evidence and documents, even if the justice of the peace previously refused to perform those procedural actions. The district court may not dismiss a party's request pertaining to examination of new evidence on the ground that such a request was also dismissed by the justice of the peace.
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001-99828
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ENG
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FIN
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CHAMBER
| 2,010
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CASE OF GRONMARK v. FINLAND
| 4
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Violation of Art. 8
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Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
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5. The applicant was born in 1968 and lives in Mäntsälä. 6. The applicant was born out of wedlock. In 1969 her father R.J. was ordered, on the initiative of the social services and by a decision of a District Court (käräjäoikeus, tingsrätten), to pay child support until the applicant's 17th birthday. 7. On 1 October 1976 the Paternity Act came into force. The transitional provisions in the Implementing Act of the Paternity Act state that paternity proceedings with regard to a child born before the entry into force of the Act had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No such restrictions exist for children born after the entry into force of the Paternity Act. 8. In 1985 the applicant's mother and R.J. agreed on one additional year of child support. The agreement was certified by the social services. The applicant attained majority in 1986. 9. R.J. died in November 1999 and the applicant found out that he had never been legally registered as her father. All of the parties had always been under the impression that paternity had been established when the duty to pay child support was ordered by the District Court. 10. In October 2000 the applicant brought a civil claim against R.J.'s legal heir and requested the Orimattila District Court to confirm the paternity. She stated that neither she nor her mother had known that they needed to bring a claim against R.J. to establish paternity, nor did they know that there was a time-limit. They further stated that the social services had been obliged by law to inform them of these issues. No such information had been given to them although the mother of the applicant's half-sister had been informed at the relevant time. 11. The District Court ordered DNA tests to be performed on the applicant, her mother and R.J.'s two brothers. The test was conclusive as to the paternity, with 99.8 % certainty. 12. On 12 April 2001 the District Court dismissed the applicant's claim. The court stated that the transitional provision with regard to the death of the father was no longer relevant in the case as modern technology enabled testing that had not been possible in the 1970s when the Act had been enacted. R.J.'s death was thus no longer an obstacle for bringing a paternity claim against him. However, the claim had been brought after the expiry of the five-year time-limit. The reason why the claim had been brought late was that the applicant and her mother had been mistaken about the legal character of the child support decision but this mistake was not of a kind that would have justified a derogation from the five-year time-limit. The time-limit itself was not unreasonable or discriminatory nor was it incompatible with the Constitution, the Convention or the United Nations' Convention on the Rights of the Child. The court thus concluded that the applicant's claim was time-barred. 13. On 6 February 2002 the Kouvola Appeal Court (hovioikeus, hovrätten) upheld the District Court's decision on the same grounds as the latter. 14. The referendary of the Appeal Court considered in her report (mietintö, betänkande) that, since it had been established with DNA tests that R.J. was actually the biological father and since the applicant had a half-sister born in 1976 who had been acknowledged by R.J. in 1981, it would not be against the spirit of the Act to allow the establishment of paternity with regard to the applicant. Furthermore, she considered that applying the five-year rule in the specific circumstances would put the daughters in unequal positions with regard to inheritance and family relations. She referred to Article 8 of the Convention as well as to Article 7 of the United Nations' Convention on the Rights of the Child. 15. The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen). On 11 July 2002 the Supreme Court granted leave to appeal. 16. On 17 November 2003 the Supreme Court dismissed the applicant's claim in its precedent judgment KKO 2003:107 on the following grounds: “The Paternity Act, on which [the applicant's] claim is based, entered into force on 1 October 1976. According to section 4 of its Implementing Act, the provisions of the Paternity Act are also applied when the child is born before the entry into force of the Act, unless otherwise provided in the Implementing Act. When the child was born before the entry into force of the Paternity Act, proceedings for the establishment of paternity must be initiated, in accordance with section 7, subsection 2, of the Implementing Act, within the time-limit of five years from the entry into force of the Paternity Act. According to the same provision, proceedings can no longer be initiated if the man is deceased. [The applicant] requested in her action directed against the heir [S.T.] of [R.J.], who had died in 1999, that it be confirmed that [R.J.] was her father. [The applicant] was born out of wedlock on 2 September 1968 and thus before the entry into force of the Paternity Act. According to section 7, subsection 2, of the Implementing Act, proceedings for the establishment of the paternity of [R.J.] should have been brought within the five-year time-limit from the entry into force of the Paternity Act, that is, at the latest on 1 October 1981. [The applicant] initiated the proceedings only on 29 September 2000. Therefore the lower courts rejected her action as time-barred. The above-mentioned five-year time-limit applies only to those children who were born before the entry into force of the Paternity Act. Those children who were born after the entry into force of the Paternity Act can initiate proceedings for the establishment of paternity without any time-limits or any restriction related to the death of the man. The question is first of all whether the time-limit in question, which prohibits [the applicant] having paternity established, puts her, contrary to Article 6, paragraph 2, of the Constitution, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Paternity Act. Only in the case that the answer to this question is in the affirmative, can the question of whether [R.J.'s] death prevents the establishment of his paternity arise. It can be stated that the purpose of the time-limit in section 7, subsection 2, of the Implementing Act is that the child or its guardian decides to initiate the paternity proceedings within a reasonable time after the entry into force of the Act. Taking into account the interests of different parties, the legislator has considered five years as a reasonable and sufficient time-limit. This time-limit can be motivated by legal certainty considerations. Before the entry into force of the Paternity Act, paternity of a child born out of wedlock could normally be established only if the man acknowledged his paternity. The paternity could be established by a court decision against the man's will only on very limited occasions and mainly when the child was considered as an engagement child in accordance with section 6, subsection 1, of the Implementing Act of the Marriage Act and Chapter 2, section 4, subsection 1, of the Code of Inheritance, as in force at the relevant time. On other occasions the man, who by having intercourse with the mother could have made her pregnant, could only be held liable to pay to the child alimony in accordance with the Act on Children Born out of Wedlock (173/1922). A child who had not been acknowledged or who was not an engagement child had no right to inherit from its father or the father's relatives. The aim of the Paternity Act and of the concurrent legislative reform of the rights of a child was to guarantee the legal equality of children regardless of their descent. Therefore the provisions of the Paternity Act were made applicable also to children born before the entry into force of the Act. According to section 4 of the Implementing Act, children born out of wedlock had the same legal standing regardless of whether they were born before or after the entry into force of the Paternity Act. The fact that an alimony issue had been decided by a court before the entry into force of the Act did not prevent bringing proceedings for the establishment of paternity. Children also received the same right, irrespective of their descent, to inherit from their fathers and the fathers' relatives. The Paternity Act thus meant that the legal status of children born out of wedlock was fundamentally changed and that they received an equal status with children born within wedlock. The entry into force of the Act did not, however, automatically ex lege change the children's legal status. If a man did not acknowledge a child, paternity proceedings had to be initiated in respect of a child born out of wedlock and the action could only be granted if there was sufficient evidence of the biological paternity. In this respect the provisions are the same as concerning children born after the entry into force of the Act. The fact that the Paternity Act was made applicable also to children born before the entry into force of the Act created uncertainties as to whether new claims, which had not even been possible under the previous legislation and for which there had thus been no need to be prepared, were going to be presented on the basis of events that had maybe taken place long before the entry into force of the Act. It was important for a man to know, inter alia, who his heirs were in order to dispose by will of their shares. This also had consequences for the man's relatives as the establishment of paternity had an effect on their rights because of the child's right to inherit. The number of persons who could be concerned by the change of legal status provided for in the Paternity Act was considerable. Proceedings for the establishment of paternity could be initiated within the above-mentioned five-year time-limit irrespective of the age of the person born out of wedlock. The establishment of paternity could change legal relationships created maybe decades earlier. The change of the man's legal status due to the establishment of paternity can lead to an annulment of previous decisions also in cases when the children are born after the entry into force of the Paternity Act. The retroactive application of the provisions concerning establishment of paternity in respect of children born before the entry into force of the Act and the effects that it has on legal relationships created under the earlier provisions may create even bigger and more significant problems. The probability of such problems is greater the more time has elapsed since the entry into force of the Act. There are thus strong reasons for having the time-limit in section 7, subsection 2, of the Implementing Act. The provision containing the time-limit has not been conducive to creating confusing interpretations but, on the contrary, it is unambiguous and strict. In its precedent judgment KKO 1993:58 the court has examined an action for the establishment of paternity although it had been brought later than within the five-year time-limit from the entry into force of the Paternity Act and the man was deceased. However, the case concerned a child who had had the status of a child born within wedlock when the Act entered into force and who could only initiate proceedings for the establishment of the paternity of another man after the paternity of the mother's husband had been annulled. [In the applicant's] case there were no legal obstacles for initiating the proceedings. The Paternity Act has now been in force for more than 25 years. All children born before its entry into force have been adults for some time. It is probable that the paternity of almost all children born then out of wedlock has already been established in one way or another with a final court decision or otherwise in accordance with the time-limit provided in section 7, subsection 2 of the Implementing Act. The legal status of these children has also been determined accordingly. The legal situation can be regarded as established. For these reasons, and especially having regard to the time elapsed since the entry into force of the Paternity Act, this time-limit has today an even more significant role in providing legal certainty. It has not been claimed that [the applicant] and the putative father [R.J.] had ever lived together nor has there ever been any family relationship between them or any other close relationship. [The applicant] was already 32 years old when she initiated the proceedings. Taking into account [R.J.'s] death and the circumstances as a whole, the establishment of his paternity would have significance only in relation to the applicant's right to inherit. The international conventions by which Finland is bound, such as the Convention on the Rights of the Child (SopS 60/1991) and the European Convention on Human Rights (SopS 19/1990), and their case law, do not support such interpretation that the literal application of section 7, subsection 2, of the Implementing Act would be incompatible with these Conventions in the present case. On the above-mentioned grounds the Supreme Court considers that section 7, subsection 2, of the Implementing Act does not put [the applicant], who was born before the entry into force of the Paternity Act, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Act. The application of the five-year time-limit in that provision is thus not incompatible with the prohibition of discrimination provided in Article 6, paragraph 2, of the Constitution. 17. The referendary of the Supreme Court stated in her report that refusing to establish the applicant's paternity would be unconstitutional and would involve discrimination. The referendary proposed that the Supreme Court disregard the time-limit on the basis of Article 106 of the Constitution. 18. The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. ...” 19. Article 21, paragraph 1, of the Constitution guarantees to everyone the right to have one's case dealt with by a court of law: “Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ...” 20. Article 106 of the Constitution gives a court of law the right to give primacy to the Constitution when the application of an Act would conflict with the Constitution: “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.” 21. According to Chapter 12, section 1, subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 444/1999): “A minor who has attained fifteen years of age shall have an independent right of action and right to be heard in a matter concerning his or her person, parallel to that of the person responsible for his or her care and custody or his or her other legal representative.” 22. According to section 20 of the Act on Children Born out of Wedlock (laki avioliiton ulkopuolella syntyneistä lapsista, lagen om barn utom äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if a man acknowledged paternity, but paternity could not be established against a man's will. According to section 24 of the same Act, such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child's mother at the time when the child was possibly conceived. However, such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse. 23. As the children born out of wedlock were put in a substantially worse position than the children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act of 1922. 24. Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision. According to section 22, subsection 1, the child has a right to institute proceedings with a view to having paternity established. 25. Section 4 of the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap, Act no. 701/1975) provides that the provisions of the Paternity Act shall also apply if the child was born before the entry into force of the Act, unless otherwise provided below. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child, the provisions in sections 6 and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child's right to be heard. 26. Sections 6 and 7 of the Implementing Act of the Paternity Act provide as follows: “The child welfare supervisor shall attend to the investigation of paternity as provided in the Paternity Act, if a child born before the entry into force of this Act has not reached fifteen years of age and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity. After a man has acknowledged his paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.” “A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in the Paternity Act. The child welfare supervisor shall not be entitled to exercise the child's right to be heard without a separate authorisation. Proceedings for the establishment of paternity must be initiated within five years from the entry into force of the Paternity Act. However, no proceedings may be instituted if the man is deceased.” 27. It appears from the drafting history of the Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlay the decision to restrict the right of action. The entry into force of the Act opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived. The legislator considered that putative fathers' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of the Paternity Act. The restriction that a man's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man's paternity. 28. The Supreme Court has held on several occasions that the five-year time-limit in question is to be strictly applied. An exception has been made in a case where the paternity of the mother's husband had to be annulled first and, as a result of that, the child would have become fatherless if the time-limit had been strictly respected (see KKO 1993:58). 29. In its precedent case KKO 1982-II-165 the Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that could be restored by seeking extraordinary remedies (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid).
| 1
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train
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001-99384
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ENG
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POL
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CHAMBER
| 2,010
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CASE OF GRZELAK v. POLAND
| 2
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Remainder inadmissible;Violation of Art. 14+9;Non-pecuniary damage - finding of violation sufficient
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David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
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6. The first two applicants, Urszula and Czesław Grzelak, were born in 1969 and 1965 respectively. They are married and live in Sobótka. They are the parents of Mateusz Grzelak (“the third applicant”), who was born in 1991. The first two applicants are declared agnostics. 7. The third applicant began his schooling in primary school no. 3 in Ostrów Wielkopolski in 1998 (at the age of seven). In conformity with the wishes of his parents he did not attend religious instruction. It appears that he was the only pupil in his class who opted out of that subject. Religious instruction was scheduled in the middle of the school day, between various compulsory courses. The school, despite the wish expressed by the first two applicants, did not offer their son an alternative class in ethics. It appears that when other pupils in his class were following religious instruction the applicants' son was either left without any supervision in the corridor or spent his time in the school library or in the school club. 8. The Government, for their part, maintained that appropriate supervision had been provided for Mateusz Grzelak while religious instruction classes were in progress. The school had a general obligation of care and supervision towards all pupils who were on its premises at any time. 9. According to the first two applicants, their son was subjected to discrimination and physical and psychological harassment by other pupils on account of the fact that he did not follow religious instruction. For that reason, in the course of the third year of primary school the applicants moved their son to primary school no. 9 and subsequently to primary school no. 11 in the same town. 10. On 11 April 2001, when their son was in the third year of primary school, the applicants sent a letter to the headmistress of primary school no. 9 in Ostrów Wielkopolski. They drew her attention to the fact that their son had been ridiculed and harassed by other pupils in the class. They stated that their son was being discriminated against by the majority of his classmates because he did not attend religious education classes. The applicants requested the assistance of the school in resolving the issue. 11. According to the Government, the applicants did not wait for a reply to their letter of 11 April 2001 and moved their son to primary school no. 11. In a letter of 26 June 2001 the headmistress of primary school no. 9 explained that Mateusz Grzelak had attended that school from 23 October 2000 to 19 April 2001. She noted that he had frequently provoked his colleagues by mocking religious symbols and children who attended religious instruction. The class tutor had informed Mr and Mrs Grzelak about their son's behaviour but they had not responded. The headmistress explained further that the school did not ask for a written declaration as to children's attendance at religious instruction. It sufficed for a parent who did not wish for his or her child to attend religious instruction to report that fact to the class tutor. 12. The Government further maintained that Mr and Mrs Grzelak had requested primary school no. 11 to provide their son with a course in ethics. According to the Government, the headmistress of that school had contacted the Poznań Education Authority (kuratorium oświaty) to establish whether it was possible to provide such a course for an inter-school group. Since that was not possible owing to the lack of sufficient numbers of interested pupils and parents, the school proposed to the third applicant that he participate in alternative classes in the school club or school library. It appears that the applicants did not report any problems to the school concerning their son's education. 13. On 1 May 2001 the applicants sent a letter to the Minister of Education, stating that since the beginning of their son's education they had encountered religious intolerance and that the school authorities had failed to react. They put a number of questions to the Minister concerning the Ordinance on the organisation of religious instruction in State schools (see relevant domestic law and practice below). In particular, the applicants raised the following matters in their letter: 1. Why did some schools require declarations from parents as to whether their children would be following religious instruction? 2. Was the school obliged to organise a class in ethics just for one pupil? 3. Why should children like the applicants' son pass their time unproductively in the school club while other children were attending religious instruction or when the schools were closed for Lent retreat? 4. Did the fact that a child had a straight line instead of a mark for “religion/ethics” on a school report indicate that the Ordinance of 14 April 1992 of the Minister of Education on the organisation of religious instruction in State schools (“the Ordinance”) infringed the Education Act and human rights instruments? 5. What could parents do when their child was discriminated against and harassed for not having attended religious instruction? 14. On 29 May 2001 the Ministry of Education replied to the applicants. In respect of the issues raised by the applicants it informed them as follows: Re question 1: Religious instruction and courses in ethics were organised at the parents' request, and where a declaration to that effect was asked for, it was for organisational reasons only. Re question 2: If only one pupil was interested in following a course in ethics, then the school authorities should enquire whether it would be possible to follow that course in an inter-school group. If in a given municipality there was no such group, then the school had to arrange for supervision of the pupil during the religious education class. Re question 3: In the case referred to above the school should organise other activities for pupils not following religious instruction or supervise them adequately by allowing them to do their homework or to use the library, etc. Re question 4: Paragraph 9 of the Ordinance regulated the manner in which marks for “religion/ethics” were entered in school reports. That provision had been interpreted by the Constitutional Court in its judgment of 20 April 1993 (see relevant domestic law and practice below). The Constitutional Court had noted that the inclusion of marks for “religion/ethics” in a school report was a consequence of providing courses in those subjects in State schools. Furthermore, the Constitutional Court observed that this rule did not breach the right to freedom of conscience and religion. Re question 5: Discrimination against pupils on the ground of their not having attended religious instruction amounted to a breach of the Ordinance and should be reported to the relevant education authorities. 15. The applicants also applied to the Ombudsman on 14 June 2001, alleging that in their son's case Articles 53 § 7 and 31 § 2 of the Constitution, Articles 9 and 14 of the Convention and various other provisions had been breached. The Ombudsman replied that he could not challenge the Ordinance again following the judgment of the Constitutional Court of 20 April 1993. The problems raised in their letter had more to do with the inappropriate behaviour of some teachers and pupils than the law itself. 16. On 17 October 2001 the applicants sent a letter to the President of the Republic. They requested him to amend the Ordinance with a view to providing guarantees for non-religious children. On 6 November 2001 the President's Office requested the Ministry of Education to reply to the applicants' letter. 17. On 10 December 2001 the Ministry of Education confirmed its position as set out in the letter of 29 May 2001. In addition to the issues already addressed, the Ministry replied to the applicants' complaint concerning the obligation to make a declaration as to whether the child would follow religious instruction. The Ministry informed the applicants that the school authorities could not require parents to make a “negative declaration”, that is, a declaration that their child would not follow religious instruction. Such a practice would contravene the provisions of the Ordinance and should be reported to the education authorities. The Ministry further informed the applicants that the parents' declaration could not be understood as a declaration concerning their beliefs. 18. The applicants submitted that they had made repeated requests to the school authorities, asking for their son to be allowed to follow a course in ethics instead of religious instruction. However, none of the primary schools attended by their son had provided a course in ethics. The refusals had been based on the lack of suitable teachers, financial reasons and insufficient numbers of pupils interested in following a course in ethics. 19. In September 2004 the third applicant began his secondary education. 20. On 16 July 2009 Mr and Mrs Grzelak complained to the Poznań Education Authority (kuratorium oświaty) that their son had not been offered a course in ethics at Ostrów Wielkopolski secondary school no. 2. Their petition (skarga) was referred to the Ostrów District (powiat) which, as the authority responsible for the school, was competent in the matter. On 27 August 2009 the Council of the Ostrów District dismissed the petition as unfounded. It found that Mateusz Grzelak was the only student in all the schools run by the Ostrów District whose parents wished him to follow a class in ethics. Accordingly, the conditions for the provision of such a class, as set out in the Ordinance, had not been met. 21. The school report of the third applicant for the first three years of primary school contained three subjects: behaviour (zachowanie), religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line. 22. The school report for the fourth year contained a list of courses that the third applicant had followed, including “religion/ethics”. Once again, there was a straight line against the subject “religion/ethics”. 23. In the school report for the fifth year in respect of the subject “religion/ethics” there was a straight line and the word ethics was crossed out. A similar situation applied to the primary school leaving certificate which the third applicant obtained in June 2004. 24. In September 2004 the third applicant began his secondary education in lower secondary school (gimnazjum) no. 4 in Ostrów Wielkopolski. His school reports for the first two years at that school and the leaving certificate of June 2007 had a straight line in the space for “religion/ethics”. 25. In September 2007 the third applicant began studying at Ostrów Wielkopolski secondary school no. 2 (liceum). On 4 September 2007 his parents requested the school to allow him to take a class in ethics, but it appears that no such class was organised. The school reports for the first and second year in that school had a straight line in the space for the subject “religion/ethics”. The third applicant failed German language in the second year of the liceum and from the school year 2009/2010 he moved to the Ostrów Wielkopolski vocational secondary school. 26. Article 82 of the Constitution of 1952 retained in force by the Constitutional Act of 17 October 1992 provided as follows: “1. The Republic of Poland shall ensure to its citizens freedom of conscience and religion. The church and other religious organisations may freely exercise their religious functions. Citizens shall not be compelled not to participate in religious practices or rites. No one shall be compelled to participate in religious practices or rites. 2. The church shall be separated from the State. The principles of relations between the State and church and legal and financial position of religious organisations shall be determined by statutes.” 27. Section 1 of the Freedom of Conscience and Religion Act provides in so far as relevant: “1. Poland ... shall secure to its citizens freedom of conscience and religion. 2. Freedom of conscience and religion shall include freedom to choose one's religion or beliefs and freedom to manifest one's religion or beliefs, either alone or in community with others, in private and in public. ...” Section 2 of the Act states, in so far as relevant: “In the exercise of their freedom of conscience and religion, citizens may in particular: ... (2)(a) belong, or not belong, to churches or other religious communities; (3) express their religious opinions; (4) raise their children in conformity with their religious convictions; (5) remain silent as to their religion or convictions ... .” 28. The majority of schoolchildren attend State schools. On 3 and 24 August 1990 the Minister of Education issued two circulars (instrukcje), introducing instruction in Roman Catholicism and other religions into State schools on a voluntary basis. According to these circulars, parents of primary school pupils and parents and/or pupils in secondary schools were to make a declaration as to whether they wished to attend religious instruction. 29. The Ombudsman challenged the conformity of certain provisions of these circulars with the constitutional provisions in force at the time and the statutory law. She stressed that the problem of religious instruction should be regulated by statute and not by subordinate legislation. The Ombudsman submitted that declarations by parents or students concerning attendance of religious instruction classes constituted a form of public manifestation of their religious convictions. Such a practice ran contrary, in the Ombudsman's view, to the Freedom of Conscience and Religion Act, which stipulated that citizens had the right not to disclose their religion or beliefs. In its judgment of 30 January 1991 (case no. K 11/90), the Constitutional Court held that the provisions challenged by the Ombudsman were in conformity with the Constitution and the statutes. 30. On 7 September 1991 Parliament enacted the Law on education (“the 1991 Education Act”). Section 12 of the Act expressly provided that religious instruction could be provided in State schools at the request of parents or of pupils who had reached the age of majority. 31. On 14 April 1992 the Minister of Education issued the Ordinance on the organisation of religious instruction in State schools (Rozporządzenie w sprawie warunków i sposobu organizowania nauki religii w szkołach publicznych – “the Ordinance”). The Ordinance replaced the two ministerial circulars issued in 1990. 32. The Ordinance provided that religious education and ethics were optional subjects. Parents of pupils who wished their children to follow either of those subjects were to make a declaration to the school authorities to that effect. If the number of pupils in a given class interested in following any of these subjects was less than seven, then the school was to organise the relevant course for pupils of different classes from the same school (an inter-class group). If the inter-class group was smaller than seven pupils, the authorities were to organise the relevant course in cooperation with other schools in the municipality (inter-school group), provided that there was a minimum of three pupils interested in following it. 33. Paragraph 9 of the Ordinance provided, in so far as relevant: “1. The mark for religion or ethics is placed on the school certificate directly after the mark for behaviour. In order to eliminate any possible manifestations of intolerance the school certificate shall not contain any data that would indicate which religion (or ethics) course was followed by a pupil.” 2. The mark for religion (ethics) has no influence on whether a pupil moves up to the next grade.” 34. In August 1992 the Ombudsman challenged the conformity of numerous provisions of the Ordinance with the constitutional provisions in force at the material time and the Freedom of Conscience and Religion Act. 35. The Ombudsman objected to, among other provisions, paragraph 9 of the Ordinance, arguing that the insertion of a mark for “religion/ethics” on school reports was unacceptable since reports were official documents issued by State schools and the teaching of religion was the prerogative of the Church. In addition, this provision created the risk of intolerance. He further alleged that the provision in question was in breach of the constitutional principle of separation of Church and State and the principle of the State's neutrality, as provided for in the Freedom of Conscience and Religion Act. 36. The Ombudsman also contested the obligation imposed on parents (pupils) to make a “negative declaration” to the effect that they did not wish their children to follow religious instruction in a State school (paragraph 3(3) of the Ordinance). He argued that no public authority in the State, which had a duty to remain neutral in the sphere of religious beliefs and philosophical convictions, could require citizens to make such declarations. 37. The Ombudsman further alleged that paragraph 12 of the Ordinance allowed for excessive display of crucifixes in other places in schools than classrooms designated for religious instruction. 38. The Constitutional Court upheld for the most part the constitutionality and legality of the Ordinance. It noted that the inclusion of religious instruction in the State school curriculum did not infringe the constitutional principle of separation of Church and State and the principle of the State's secular character and neutrality. According to the Constitutional Court, the principles in question required that both State and Church remain autonomous in their respective spheres of activity. However, their autonomy should not lead to isolation or even competition between them, but on the contrary should allow them to cooperate in those areas, such as the ethical education of children, which served the common good and the development of the individual. The Constitutional Court further observed that the secular character of the State and its neutrality could not amount to a prohibition on providing religious instruction in State schools. Moreover, according to the Education Act, the provision of religious instruction was always subject to parents' wishes. Referring, among other provisions, to Article 2 of Protocol No. 1 to the Convention, the Constitutional Court noted that the State could not escape its obligation to provide religious education which conformed to parents' wishes. 39. The Constitutional Court held that the Ordinance should be construed as granting each pupil the right to follow classes in both religion and ethics as opposed to the alternative of choosing only one of them. Adopting such an interpretation of the Ordinance would deal with the Ombudsman's concerns about the division of pupils into believers and nonbelievers. 40. As to the insertion of marks for religious instruction in school reports, the Constitutional Court found it to be in conformity with the Education Act. Furthermore, it observed that this was a consequence of the provision of religious instruction, on a voluntary basis, by State schools. In accordance with the Education Act, school reports should contain marks for all subjects (compulsory and optional) taken by a pupil in a given school year. This rule applied equally to marks for religion if that subject was taught in a State school. 41. Replying to the Ombudsman's concerns, the Constitutional Court held as follows: “In order to dispel possible doubts in this respect, the Constitutional Court indicated in the seventh point of the operative part of its judgment that a mark on a school report may refer not just to religious instruction alone or to ethics alone; in cases where a pupil follows both those courses he or she may be given a joint mark [for the two subjects]. The impugned provision therefore contains a dual safeguard. First, a mark shown on the school report does not indicate any specific religion, and secondly it is not known whether such a mark relates to religious instruction, ethics or both subjects jointly.” 42. As to the obligation to make a “negative declaration”, the Constitutional Court struck down paragraph 3(3) of the Ordinance on the grounds of its incompatibility with the Education Act. Paragraph 3(3) of the Ordinance as amended made no reference to a “negative declaration”. It entered into force on 9 September 1993. 43. As regards the display of the crucifix in State schools, the Constitutional Court found that the paragraph 12 of the Ordinance provided for such a possibility but did not mandate the presence of the crucifix in schools. Accordingly, this provision was compatible with Article 82 of the Constitution. 44. Article 25 § 2 of the 1997 Constitution provides: “Public authorities in the Republic of Poland shall be impartial in matters of religious and philosophical convictions, and shall ensure freedom to express them in public life.” Article 48 § 1 of the Constitution provides: “Parents shall have the right to raise their children in accordance with their own convictions. The child's upbringing shall respect his degree of maturity as well as his freedom of conscience and belief and also his convictions.” Article 53 of the Constitution provides as follows: “1. Freedom of conscience and religion shall be secured to everyone. 2. Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the availability of sanctuaries and other places of worship designed to meet the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services. 3. Parents shall have the right to provide their children with a moral and religious upbringing and teaching in accordance with their convictions. The provisions of Article 48 § 1 shall apply as appropriate. 4. The religion of a church or other legally recognised religious organisation may be taught in schools, but other peoples' freedom of religion and conscience shall not be infringed thereby. 5. The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others. 6. No one shall be compelled to participate or not participate in religious practices. 7. No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or beliefs. 45. The Constitutional Court was asked to review the constitutionality of amendments to the Freedom of Conscience and Religion Act. The amendments repealed the provisions of a number of laws regulating relations between certain Churches and the State, which granted the former the right to have marks for their religious instruction entered in school reports. The Constitutional Court upheld the constitutionality of the impugned provisions and held that the Churches concerned were not, in fact, divested of the above-mentioned right. Following the entry into force of the amendments, the Churches simply had to fulfil the conditions set out in the Ordinance of the Minister of Education on the organisation of religious instruction in State schools, which were equally applicable to all Churches and religious organisations. 46. The Constitutional Court was asked to examine the constitutionality of the amended Ordinance of the Minister of Education of 13 July 2007 on the marking of pupils' work (Rozporządzenie Ministra Edukacji Narodowej z dnia 13 lipca 2007 r. zmieniające rozporządzenie w sprawie warunków i sposobu oceniania, klasyfikowania i promowania uczniów i słuchaczy oraz przeprowadzania sprawdzianów i egzaminów w szkołach publicznych). The amended Ordinance introduced for the first time the rule that marks obtained for religious instruction or ethics, as well as other optional courses, would be counted towards the “average mark” obtained by a pupil in a given school year and at the end of a given level of schooling. The amended Ordinance entered into force on 1 September 2007. 47. The Constitutional Court in its judgment of 2 December 2009 held that the impugned amendments to the Ordinance on the marking of pupils' work were compatible with Articles 25, 32, 48 § 1 and 53 § 3 of the Constitution. The Constitutional Court found, inter alia, as follows: “The counting of the mark for religion towards the average annual mark and the final mark is – as the [Constitutional] Court emphasises again – a consequence of the introduction of religious education into the school curriculum and of the recording of marks for religion on school reports in State schools. It is a consequence of the constitutional guarantees of religious freedom rather than of support for theistic beliefs. On the basis of the existing regulations, pupils (or their parents or legal guardians) have the possibility to choose between classes in a specific religion or classes in ethics as an alternative subject for those who do not hold religious beliefs. The Constitution does not provide specific guarantees for instruction in the beliefs enumerated by the claimant (atheistic, pantheistic or deistic). It would be difficult even from an organisational viewpoint to offer such a range of subjects to choose from. The knowledge necessary at this level of teaching can be gained by interested [pupils], for instance, in the framework of the subject 'ethics' or other subjects coming into the category of 'additional educational courses' which are mentioned in the impugned ordinance.” 48. In the reasoning, the Constitutional Court relied on and confirmed the findings made in its judgment of 20 April 1993. It held, inter alia, as follows: “The Constitutional Court points out that the issue of conformity of the inclusion of marks for religion in official school reports with section 10(1) of the Freedom of Conscience and Religion Act, which stipulates that 'the Republic of Poland is a secular State, neutral in the sphere of religion and beliefs', was already reviewed by the Constitutional Court in its judgment of 20 April 1993, case no U. 12/92. The subject of the review (also under Article 82 § 2 of the then Constitution) was paragraph 9 of the Ordinance of 14 April 1992. ... Ruling in the above case, inter alia, that paragraph 9 of the Ordinance of 14 April 1992 was compatible with section 10(1) (and with Article 82 of the then Constitution), the Court held that: 'The recording of marks for religion in school reports is a consequence of the organisation of religious instruction by State schools. ... A school report covers all school courses – compulsory and optional – and thus there are no grounds for excluding religious instruction. Clearly, the Minister of Education could decide otherwise and do away with the obligation to include marks on a school report. ...' Endorsing the above findings, the Constitutional Court wishes to underline in connection with the case in issue that the counting of marks for religion towards the average annual mark and the final average mark is in turn a consequence of the recording of marks for religion on school reports in State schools. ....” The Constitutional Court further noted: “The Constitutional Court is aware of the fact that in specific cases, given the dominant position of the Roman Catholic faith in the religious make-up of Polish society, the choice of an additional subject (religion or ethics) by parents or pupils may not be entirely free, but may be taken under pressure from “local” public opinion. The free choice of the additional subject depends to a large extent on the respect for the principles of pluralism and tolerance for different convictions and beliefs in local communities. In specific cases in which external pressure – impinging on the free choice – was exerted it would have been the result of a low level of democratic culture. This important issue, while it is noted by the Constitutional Court, lies outside its jurisdiction. ...”
| 1
|
train
|
001-101187
|
ENG
|
UKR
|
CHAMBER
| 2,010
|
CASE OF KORNEV AND KARPENKO v. UKRAINE
| 3
|
Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 6-3-d;Violation of Art. 6-1+6-3-b;Non-pecuniary damage - award
|
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
|
5. The applicants were born in 1984 and 1951 respectively and live in Kharkiv. 6. On 16 May 2003 Ms Shch., on the instructions of the police, bought four grams of cannabis from the first applicant. Following this, the first applicant was arrested by the police on suspicion of supplying drugs. The 20-hryvnia (Ukrainian hryvnias, UAH) note given by the police to Shch. to buy the drugs had been found on him. During a search conducted at the applicant's house later the same day another twenty grams of cannabis were revealed. 7. During pre-trial investigation the applicant confessed to selling drugs to Shch., whom he knew by her first name, and to keeping drugs at his house. 8. On 19 May 2003 the applicant was released on an undertaking not to abscond. 9. On 23 July 2003 the criminal case against the applicant was referred to the Chervonozavodsky District Court of Kharkiv (the District Court). 10. At the end of November the first applicant was summoned to appear before the court on 2 December 2003. According to the applicant, he fell ill on 31 November 2003. The next day the doctor gave him a sick note. 11. On 2 December 2003, despite the fact that the second applicant had informed the court of the reasons for the first applicant's absence, the court decided to replace the undertaking not to abscond with detention. 12. On 8 December 2003 the first applicant was arrested, and on 16 December 2003 he was brought before the judge, who rejected his request for release. 13. During the hearing of 16 December 2003 the court rejected the applicant's request for Shch. to be summoned on the ground that in accordance with the law the buyer participating in a police drug test purchase operation should not be summoned to court. 14. On 26 January 2004 the court rejected another request for release lodged by the first applicant. 15. On 19 July 2004 the District Court found the applicant guilty of supplying drugs and sentenced him to five years' imprisonment, with confiscation of his property. The court established that the applicant had bought cannabis from an unknown person on 11 May 2003 and had kept it at home for selling. On 16 May 2003 he sold some cannabis to Shch. and more cannabis was found at his home. The court noted that during the trial the applicant retracted his confession and first claimed that a certain A. had forced him to keep the drugs and that Ms M. had taken them from him. Then the applicant denied completely that any drugs had ever been in his possession and stated that the police had planted money and drugs and forced him to confess. The court considered that despite this retraction the applicant's guilt was confirmed by the body of evidence, including the written statements of Shch., as well as statements made at the hearing by police officers N. and K., who had conducted the operation, and witnesses K. and E. who had been invited by the police to observe the operation. All of them confirmed that Shch. had gone to the applicant with a banknote and come back with a small packet of a substance later established to be cannabis. 16. The applicant appealed against his conviction, complaining, among other things, that despite numerous requests on his behalf, Ms Shch. had not been summoned and questioned by the court and that it had not been proven that he had sold drugs to Ms Shch. 17. On 29 July 2005 the Kharkiv Regional Court of Appeal changed the applicant's sentence to a suspended one of three years. The court did not reply to the applicant's complaint that witness Shch. had not been questioned in court. 18. The applicant appealed in cassation, further complaining that Shch. had not been questioned in the court hearings. 19. On 25 April 2006 the Supreme Court of Ukraine upheld the decision of the appellate court. No reply had been given to the applicant's complaint that Shch. had not been summoned or questioned in the court hearings. 20. On 2 December 2003 the second applicant attended the District Court and informed Judge O. that the first applicant was ill. She was accompanied by five other persons. According to the second applicant they were all invited to the judge's office but he later asked them to leave his office, which they could not do because police officers were barring the exit. The same day the judge's secretary drew up an administrative offence report on the second applicant. The report was passed to Judge Shch., who questioned the applicant, found her guilty of contempt of court and ordered her administrative arrest for fifteen days. In his decision Judge Shch. noted that at around 10 a.m. that day the second applicant entered the office of Judge O. with a “support group” consisting of Ms M., Ms I., Ms G., Mr K. and Mr P. in order to put pressure on the above judge in the criminal case against her son (the first applicant) and refused to leave the office when requested to do so by the judge, his secretary and the judicial police. The court found that the applicant had stayed in the office of Judge O. for forty minutes and prevented him from commencing the court hearings. 21. After the above decision the second applicant became unwell and was taken to hospital. 22. On 17 January 2004 the Deputy President of the Kharkiv Regional Court dismissed an extraordinary appeal by the second applicant against the decision of 2 December 2003 ordering her administrative arrest. 23. On 27 January 2004 the prosecutor of the Chervonozavodsky District requested the court to reduce the second applicant's sentence on account of her state of health. This request was granted and the administrative arrest was replaced by a fine of UAH 136. 24. The relevant provisions of the Code read, in so far as relevant, as follows: Article 52-1. Security measures for persons participating in criminal trials “Where there is a real threat to life, health, home, or property of those participating in criminal trials, such persons shall have the right to be protected by security measures The right to be protected by security measures, where there are relevant grounds, shall be vested in: a person who has reported a crime to a law-enforcement authority or otherwise participated in or contributed to actions to detect, prevent, stop, or solve a crime ...” Article 52-3. Non-disclosure of information on a person being protected by security measures “Non-disclosure of information on a person in respect of whom security measures have been taken may be ensured by restricting the availability of any data on the person in the materials (in petitions, statements and so on) and also in reports on the investigative actions or records of the court hearings. Having decided to take security measures, the body of inquiry, investigator, prosecutor, or court (judge) shall make a reasoned decision to replace by a pseudonym the surname, name and patronymic of the person taken under protection. Afterwards, the procedural documents shall only refer to the pseudonym of the person, while his or her real surname, name and patronymic (the year, month, and place of his or her birth, his or her family situation, place of work, occupation or position, place of residence, and other personal details characterising the person concerned) shall only be stated in the decision on the replacement of his or her personal details. A decision to that effect, which is not to be added to the case file, shall be kept separately by the authority in charge of the criminal case in question. If the surname of the person taken under protection is replaced by a pseudonym, the reports on investigative actions and other documents referring to real personal details of the person shall be replaced in the case file by copies in which his or her real surname is replaced by the pseudonym. Information on security measures as well as on persons taken under protection thereby shall be restricted-access information. The rules laid down in paragraph 2 of Article 48, Articles 217 - 219 and 255 of this Code shall not apply to documents containing such information.” 25. Paragraph 1 of Article 185-3 of the Code provides as follows: “Contempt of court, which is defined as malicious avoidance of summons by a witness, victim, plaintiff or defendant; or as a failure by the above persons or others to comply with the orders of the presiding judge; or a violation of public order during a court hearing, or the committal by any person of acts which indicate blatant disrespect for the court or for the rules of court, shall be punishable by a fine of six to twelve times the monthly minimum income of citizens or by administrative arrest for up to fifteen days.” 26. Paragraph 1 of Article 268 of the Code provides, among others, the following rights of a person who is brought to administrative liability: “A person placed under administrative liability shall be entitled to study case materials, to give explanations, to present evidence, to make requests; to have the assistance of a lawyer ... during the examination of the case...” 27. The right to a lawyer in administrative offence proceedings is further guaranteed by Article 271 of the Code. 28. Under Article 277 of the Code, cases concerning administrative offences set forth in the first paragraph of Article 185-3 shall be decided within one day.
| 1
|
train
|
001-97689
|
ENG
|
HRV
|
GRANDCHAMBER
| 2,010
|
CASE OF ORŠUŠ AND OTHERS v. CROATIA
| 1
|
Preliminary objection dismissed;Violation of Art. 6-1;Violation of Art. 14+P1-2;Non-pecuniary damage - award
|
Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Renate Jaeger;Sverre Erik Jebens
|
9. The applicants were born between 1988 and 1994 and live respectively in Orehovica, Podturen and Trnovec. Their names and details are set out in the appendix. 10. During their education, the applicants at times attended separate classes, comprising only Roma pupils, at a primary school in the village of Podturen for nine applicants (the second to tenth applicants) and at a primary school in the village of Macinec, in Međimurje County, for five applicants (the eleventh to fifteenth applicants). In Croatia, primary education consists of eight grades and children are obliged to attend school from the age of seven to fifteen. The first four grades are considered as lower grades and each class is assigned a class teacher who in principle teaches all subjects. The fifth to eighth grades are upper grades in which, in addition to a class teacher assigned to each class, different teachers teach different subjects. The curriculum taught in any primary school class, including the Roma-only classes which the applicants attended, may be reduced by up to 30% in comparison to the regular, full curriculum. 11. The proportion of Roma children in the lower grades (from the first to the fourth grade) varies from 33% to 36%. The total number of pupils in Podturen Primary School in 2001 was 463, 47 of whom were Roma. There was one Roma-only class, with 17 pupils, while the remaining 30 Roma pupils attended mixed classes. 12. In 2001 a pre-school programme called “Little School” (Mala škola) was introduced in the Lončarevo settlement in Podturen. It included about twenty Roma children and was designed as a preparatory programme for primary school. Three educators were involved, who had previously received special training. The programme ran from 11 June to 15 August 2001. This programme has been provided on a permanent basis since 1 December 2003. It usually includes about twenty Roma children aged from 3 to 7. The programme is carried out by an educator and a Roma assistant in cooperation with Podturen Primary School. An evaluation test is carried out at the end of the programme. 13. In December 2002 the Ministry of Education and Sports adopted a decision introducing Roma assistants in schools with Roma pupils from the first to fourth grades. In Podturen Primary School, there was already a Roma assistant who had worked there since September 2002. A statement made by one such assistant, Mr K.B., on 13 January 2009 reads: “I started work at Podturen Primary School in September 2002. At that time there were two classes in the fourth grade. Class four (b) had Roma pupils only and it was very difficult to work with that class because the pupils were agitated and disrupted the teaching. I contemplated leaving after only two months. At the request of teachers, I would give written invitations to the parents or I would invite them orally to come to talk with the teachers at the school. Some parents would come, but often not, and I had to go and ask them again. A lot of time was needed to explain Croatian words to the pupils because some of them continued to speak Romani and the teachers could not understand them. I told the pupils that they should attend school regularly. Some pupils would just leave classes or miss a whole day. I helped pupils with homework after school. I helped the school authorities to compile the exact list of pupils in the first grade. I no longer work at the school.” 14. Since the school year 2003/04 there have been no Roma-only classes in Podturen Primary School. 15. The proportion of Roma children in the lower grades varies from 57% to 75%. Roma-only classes are formed in the lower grades and only exceptionally in the higher grades. All classes in the two final grades (seventh and eighth) are mixed. The total number of pupils in Macinec Primary School in 2001 was 445, 194 of whom were Roma. There were 6 Roma-only classes, with 142 pupils in all, while the remaining 52 Roma pupils attended mixed classes. 16. Since 2003 the participation of Roma assistants has been implemented. 17. A “Little School” pre-school programme was introduced in 2006. 18. The applicants submitted that they had been told that they had to leave school at the age of 15. Furthermore, the applicants submitted statistics showing that in the school year 2006/07 16% of Roma children aged 15 completed their primary education, compared with 91% of the general primary school population in Međimurje County. The drop-out rate of Roma pupils without completing primary school was 84%, which was 9.3 times higher than for the general population. In the school year 2005/06, 73 Roma children were enrolled in the first grade and 5 in the eighth. 19. The following information concerning each individual applicant is taken from official school records. 20. By a letter of 22 February 2007, the first applicant expressed the wish to withdraw his application. Thus in the Chamber judgment of 17 July 2008 the Court decided to discontinue the examination of the application in so far as it concerned the first applicant. 21. The second applicant, Mirjana Oršuš, was enrolled in the first grade of primary school in the school year 1997/98. She attended a mixed class that year and the following year, but in those two years she failed to go up a grade. In the school years 1999/2000 to 2002/03 she attended a Roma-only class. In 2003/04 to 2005/06 she attended a mixed class. In 2005/06 she took the sixth grade for the second time and failed. She failed the first and the sixth grades twice. Out of seventeen regular parent-teacher meetings organised during her primary schooling, her parents attended three. 22. She was provided with additional classes in Croatian in the fourth grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group (that is to say a number of different activities organised for the same group of children), organised by the school. After reaching the age of 15, she left school in August 2006. Her school report shows that during her schooling she missed 100 classes without justification. 23. The third applicant, Gordan Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and passed the first grade. That year and the following year he attended a Roma-only class. In 1998/99 and 1999/2000 he attended a mixed class and after that a Roma-only class for the remainder of his schooling. In 2002/03 he passed the fourth grade. He failed the second grade three times. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 24. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15 he left school in September 2003. His school report shows that during his schooling he missed 154 classes without justification. 25. Later, he enrolled in evening classes in the People’s Open College in Čakovec, where he completed his primary education. 26. The fourth applicant, Dejan Balog, was enrolled in the first grade of primary school in the school year 1996/97. During the first and second years he attended a Roma-only class and the following two years a mixed class. In 2000/01 to 2002/03 he attended a Roma-only class. In 2003/04 to 2005/06 he attended a mixed class. In 2005/06 he took the fifth grade for the second time and failed. He failed the second grade three times, the fourth grade once and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended two. 27. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 881 classes without justification. 28. Later, he enrolled in fifth-grade evening classes, but did not attend. 29. The fifth applicant, Siniša Balog, was enrolled in the first grade of primary school in 1999/2000 and passed the first grade. In 1999/2000 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. In 2006/07 he took the fifth grade for the third time and failed. He failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 30. He was not provided with additional classes in Croatian. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in 2008. His school report shows that during his schooling he missed 1,304 classes without justification. In October 2006 the school authorities wrote to the competent social welfare centre informing them of the applicant’s poor school attendance. 31. The sixth applicant, Manuela Kalanjoš, was enrolled in the first grade of primary school in the school year 1996/97 and attended a Roma-only class. The following two years she attended a mixed class. In 1999/2000 to 2002/03 she attended a Roma-only class and passed the fourth grade, after which she attended a mixed class. From February 2003 she followed an adapted curriculum for the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Povjerenstvo za utvrđivanje psihofizičkog stanja djeteta) had established that she suffered from developmental difficulties. In 2004/05 she took the fifth grade for the second time and failed. She failed the first grade three times and the fifth grade twice. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 32. She was provided with additional classes in Croatian in her third grade. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 297 classes without justification. 33. Later, she enrolled in fifth-grade evening classes, but did not attend. 34. The seventh applicant, Josip Oršuš, was enrolled in the first grade of primary school in 1999/2000 and attended a Roma-only class up to and including the school year 2002/03, after which he attended a mixed class. From May 2002 he followed an adapted curriculum in his further schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board (Komisija za utvrđivanje psihofizičke sposobnosti djece) had established that he suffered from developmental difficulties. In 2007/08 he took the sixth grade for the second time and failed. He failed the fifth and sixth grades twice. Out of fifteen regular parent-teacher meetings organised during his primary schooling, his parents attended two. 35. He was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade he participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in February 2008. His school report shows that during his schooling he missed 574 classes without justification. 36. The eighth applicant, Biljana Oršuš, was enrolled in the first grade of primary school in the school year 1996/97 and in her first three school years attended a Roma-only class, after which she attended a mixed class for two years. On 28 December 2000 the Međimurje County State Administration Office for Schooling, Culture, Information, Sport and Technical Culture (Ured za prosvjetu, kulturu, informiranje, šport i tehničku kulturu Međimurske Županije) ordered that she follow an adapted curriculum during the rest of her schooling on the ground that a competent expert committee – the Children’s Psycho-physical Aptitude Assessment Board – had established that she suffered from poor intellectual capacity, concentration difficulties and socio-pedagogical neglect. It was also established that she was in need of treatment from the competent social welfare centre. In 2001/02 and 2002/03 she attended a Roma-only class and passed the fourth grade. In the following two school years she attended a mixed class, took the fifth grade for the second time and failed. She failed the third grade three times and the fifth grade twice. Out of seven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 37. She was provided with additional classes in Croatian in the third grade in 2001/02. She participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2005. Her school report shows that during her schooling she missed 1,533 classes without justification. 38. The ninth applicant, Smiljana Oršuš, was enrolled in the first grade of primary school in the school year 1999/2000 and attended a Roma-only class up to and including 2002/03, after which she attended a mixed class. In 2006/07 she took the fifth grade for the third time and failed. She failed the fourth grade once and the fifth grade three times. Out of eleven regular parent-teacher meetings organised during her primary schooling, her parents attended three. 39. She was provided with additional classes in Croatian in the third grade in 2001/02. From the first to the fourth grade she participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, she left school in August 2007. Her school report shows that during her schooling she missed 107 classes without justification. 40. The tenth applicant, Branko Oršuš, was enrolled in the first grade of primary school in the school year 1997/1998 and attended a mixed class for the first two years. From 1999/00 to 2002/03 he attended a Roma-only class, after which he attended a mixed class. On 23 February 2005 the Međimurje County State Welfare Department ordered that he follow an adapted curriculum during the rest of his schooling on the ground that a competent expert committee – the Children’s Psycho-physical Assessment Board – had established that he suffered from developmental difficulties. In 2005/06 he failed the sixth grade. He failed the first grade twice and the fourth and sixth grades once. Out of eleven regular parent-teacher meetings organised during his primary schooling, his parents attended one. 41. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. He participated in extracurricular activities in a mixed group organised by the school. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 664 classes without justification. 42. The eleventh applicant, Jasmin Bogdan, was enrolled in the first grade of primary school in 1997/98. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2004/05 he took the fifth grade for the second time and failed. He failed the first and the fourth grades once and the fifth grade twice. Out of twenty-four parent-teacher meetings organised during his entire primary schooling, his parents attended none. 43. He was provided with additional classes in Croatian in the third grade in the school year 2001/02. After reaching the age of 15, he left school in August 2005. His school report shows that during his schooling he missed 1,057 classes without justification. 44. The twelfth applicant, Josip Bogdan, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 8 out of 97 points (8.25%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2006/07 he took the third grade for the second time and failed. He failed the first grade once, the second grade three times and the third grade twice. Out of thirty-seven regular parent-teacher meetings organised during his primary schooling, his parents attended none. 45. He was provided with additional classes in Croatian in the first, second and third grades. In the second grade he participated in a dancing group and in the third grade in a choir. After reaching the age of 15, he left school in August 2007. His school report shows that during his schooling he missed 1,621 classes without justification. 46. The thirteenth applicant, Dijana Oršuš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that she had inadequate knowledge of the Croatian language. She scored 26 out of 97 points (26.8%). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of thirty-two regular parent-teacher meetings organised during her primary schooling, her parents attended six. 47. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 522 classes without justification. 48. The fourteenth applicant, Dejan Oršuš, was enrolled in the first grade of primary school in 1999/2000. The preliminary tests carried out before his assignment to a particular class showed that he did not understand the Croatian language. He scored 15 out of 97 points (15.5%). He was therefore assigned to a Roma-only class, where he spent his entire schooling. In 2005/06 he passed the third grade. He failed the first grade three times and the third grade once. Out of twenty-eight regular parent-teacher meetings organised during his primary schooling, his parents attended five. 49. He was provided with additional classes in Croatian in the first grade. After reaching the age of 15, he left school in August 2006. His school report shows that during his schooling he missed 1,033 classes without justification. 50. The fifteenth applicant, Danijela Kalanjoš, was enrolled in the first grade of primary school in the school year 2000/01. The preliminary tests carried out before her assignment to a particular class showed that her understanding of the Croatian language was poor. She scored 37 out of 97 points (38.14%). She was therefore assigned to a Roma-only class, where she spent her entire schooling. In 2007/08 she passed the fifth grade. She failed the first grade twice and the second grade once. Out of twenty-one regular parent-teacher meetings organised during her entire primary schooling, her parents attended two. 51. She was provided with additional classes in Croatian in the first grade. In the first grade she participated in extracurricular activities in a mixed group, in the second grade in dancing, in the third grade in handicraft classes, and in the fifth grade in a choir. After reaching the age of 15, she left school in August 2008. Her school report shows that during her schooling she missed 238 classes without justification. 52. On 19 April 2002 the applicants brought an action under section 67 of the Administrative Disputes Act in the Čakovec Municipal Court (Općinski sud u Čakovcu) against the above-mentioned primary schools and Kuršanec Primary School, the State and Međimurje County (“the defendants”). They submitted that the teaching organised in the Roma-only classes in the schools in question was significantly reduced in volume and in scope compared to the officially prescribed curriculum. The applicants claimed that the situation described was racially discriminating and violated their right to education as well as their right to freedom from inhuman and degrading treatment. They requested the court to order the defendants to refrain from such conduct in the future. 53. The applicants also produced the results of a psychological study of Roma children attending Roma-only classes in Međimurje, carried out immediately before their action was lodged, showing the following: – most children had never had a non-Roma child as a friend; – 86.9% expressed a wish to have a non-Roma child as a friend; – 84.5% expressed a wish to attend a mixed class; – 89% said they felt unaccepted in the school environment; – 92% stated that Roma and non-Roma children did not play together. Furthermore, the report asserted that segregated education produced emotional and psychological harm in Roma children, in terms of lower self-esteem and self-respect and problems in the development of their identity. Separate classes were seen as an obstacle to creating a social network of Roma and non-Roma children. 54. The defendants each submitted replies to the arguments put forward by the applicants, claiming that there was no discrimination of Roma children and that pupils enrolled in school were all treated equally. They submitted that all pupils were enrolled in school after a committee (composed of a physician, a psychologist, a school counsellor (pedagog), a defectologist and a teacher) had found that the candidates were physically and mentally ready to attend school. The classes within a school were formed depending on the needs of the class, the number of pupils, etc. In particular, it was important that classes were formed in such a way that they enabled all pupils to study in a stimulating environment. 55. Furthermore, the defendants submitted that pupils of Roma origin were grouped together not because of their ethnic origin, but rather because they were often not proficient in Croatian and it took more exercises and repetitions for them to master the subjects taught. Finally, they claimed that Roma pupils received the same quality of education as other pupils as the scope of their curriculum did not differ from that prescribed by law. 56. On 26 September 2002 the Čakovec Municipal Court dismissed the applicants’ action, accepting the defendants’ argument that the reason why most Roma pupils were placed in separate classes was that they were not fluent in Croatian. Consequently, the court held that this was not unlawful and that the applicants had failed to substantiate their allegations concerning racial discrimination. Lastly, the court concluded that the applicants had failed to prove the alleged difference in the curriculum of the Roma-only classes. 57. On 17 October 2002 the applicants appealed against the first-instance judgment, claiming that it was arbitrary and contradictory. 58. On 14 November 2002 the Čakovec County Court (Županijski sud u Čakovcu) dismissed the applicants’ appeal, upholding the reasoning of the first-instance judgment. 59. Subsequently, on 19 December 2002, the applicants lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) under section 62 of the Constitutional Act on the Constitutional Court. In their constitutional complaint the applicants reiterated their earlier arguments, relying on the relevant provisions of the Constitution and of the Convention. 60. On 3 November 2003 the applicants’ lawyer lodged an application with the Constitutional Court to expedite the proceedings. On 7 February 2007 the Constitutional Court dismissed the applicants’ complaint in its decision no. U-III-3138/2002, published in Official Gazette no. 22 of 26 February 2007. The relevant parts of the decision read as follows. “The first-instance court established in the impugned judgment that the criteria for formation of classes in the defendant primary schools had been knowledge of the Croatian language and not the pupils’ ethnic origin. The [first-instance] court considered that the complainants had failed to prove their assertion that they had been placed in their classes on the basis of their racial and ethnic origin. The [first-instance] court stressed that the complainants relied exclusively on the activity report of the Ombudsman for the year 2000. However, the Ombudsman said in his evidence that the part of the report referring to the education of Roma had been injudicious because all the relevant facts had not been established. The first-instance court relied on section 27 paragraph 1 of the Primary Education Act ... which provides that teaching in primary schools is in the Croatian language and Latin script, and considered a lack of knowledge of the Croatian language as an objective impediment in complying with the requirements of the school curriculum, which also transpires from the conclusion of a study carried out for the needs of the Croatian Helsinki Committee. The [first-instance] court found: ‘pupils enrolling in the first year of primary schools have to know the Croatian language, so that they are able to follow the teaching, if the purpose of primary education is to be fulfilled. It is therefore logical that classes with children who do not know the Croatian language require additional efforts and commitment of teachers, in particular to teach them the Croatian language.’ The first-instance court found that the defendants had not acted against the law in that they had not changed the composition of classes once established, as only in exceptional situations was the transfer of pupils from one class to another allowed. The [first-instance] court considered that this practice respected the integrity of a class and its unity in the upper grades. The [first-instance] court considered that classes should be formed so as to create favourable conditions for an equal approach to all pupils according to the prescribed curriculum and programme, which could be achieved only where a class consisted of a permanent group of pupils of approximately the same age and knowledge. Furthermore, the [first-instance] court found that the complainants had failed to prove their assertion that ... they had a curriculum of significantly smaller volume than the one prescribed for primary schools by the Ministry of Education and Sports on 16 June 1999. The [first-instance] court found that the above assertion of the complainants relied on the Ombudsman’s report. However, the Ombudsman said in his testimony that he did not know how the fact that in Roma-only classes the teaching followed a so-called special programme had been established. The [first-instance] court established that teaching in the complainants’ respective classes and the parallel ones followed the same curriculum. Only in the Kuršanec Primary School were there some deviations from the school curriculum, but the [first-instance] court found those deviations permissible since they had occurred ... at the beginning of the school year owing to low attendance. After having established that the complainants had not been placed in their classes according to their racial and ethnic origin and that the curriculum had been the same in all parallel classes, the first-instance court dismissed the complainants’ action. ... The reasoning of the first-instance judgment ... shows that the defendant primary schools replied to the complainants’ allegations as follows: ‘The [defendant schools] enrolled in the first year those children found psycho-physically fit to attend primary school by a committee composed of a physician, a psychologist, a school counsellor [pedagog], a defectologist and a teacher. They did not enrol Croatian children or Roma children as such, but children found by the said committee to be psychologically and physically fit to be enrolled in primary school. ... The defendant primary schools maintain that the first obstacle for Roma children in psychological tests is their lack of knowledge of the Croatian language in terms of both expression and comprehension. As to the emotional aspect of maturity, most of these children have difficulty channelling their emotions. In terms of social maturity, children of Roma origin do not have the basic hygienic skills of washing, dressing, tying or buttoning, and a lot of time is needed before they achieve these skills. ... It is therefore difficult to plan lessons with sufficient motivation for all children, which is one of the obligations of primary schools. There are classes composed of pupils not requiring additional schooling to follow the teaching programme and classes composed of pupils who require supplementary work and assistance from teachers in order to acquire the necessary [skills] they lack owing to social deprivation. ...’ The reasoning of the same judgment cites the testimony of M.P.-P., a school counsellor and psychologist at Macinec Primary School, given on 12 December 2001 ...; ‘Before enrolment the committee questions the children in order to establish whether they possess the skills necessary for attending school. Classes are usually formed according to the Gauss curve, so that the majority in a given class are average pupils and a minority below or above average. ... However, in a situation where 70% of the population does not speak Croatian, a different approach is adopted so as to form classes with only pupils who do not speak Croatian, because in those classes a teacher’s first task is to teach the children the language.’ The above shows that the allocation of pupils to classes is based on the skills and needs of each individual child. The approach is individualised and carried out in keeping with professional and pedagogical standards. Thus, the Constitutional Court finds the approach applied correct since only qualified experts, in particular in the fields of pedagogy, school psychology and defectology, are responsible for assigning individual children to the appropriate classes. The Constitutional Court has no reason to question the findings and expert opinions of the competent committees, composed of physicians, psychologists, school counsellors [pedagog], defectologists and teachers, which in the instant case found that the complainants should be placed in separate classes. None of the facts submitted to the Constitutional Court leads to the conclusion that the placement of the complainants in separate classes was motivated by or based on their racial or ethnic origin. The Constitutional Court finds that their placement pursued the legitimate aim of necessary adjustment of the primary educational system to the skills and needs of the complainants, where the decisive factor was their lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools. The separate classes were not established for the purpose of racial segregation in enrolment in the first year of primary school but as a means of providing children with supplementary tuition in the Croatian language and eliminating the consequences of prior social deprivation. It is of particular importance to stress that the statistical data on the number of Roma children in separate classes in the school year 2001/02 ... are not in themselves sufficient to indicate that the defendants’ practice was discriminatory (see also the European Court of Human Rights judgments Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001, and D.H. and Others v. the Czech Republic, no. 57325/00, § 46, 7 February 2006). Moreover, the complainants themselves maintain in their constitutional complaint that in the school year 2001/02 40.93% of Roma children in Međimurje County were placed in regular classes, which tends to support the Constitutional Court’s conclusion that there is no reason to challenge the correct practice of the defendant primary schools and expert committees. ... In their constitutional complaint the complainants further point out that, ‘[e]ven if lack of knowledge of the Croatian language on enrolment in the first year was a problem, the same could not be said of the complainants’ enrolment in upper grades’. They therefore consider that their rights were violated by the courts’ findings that it had been justified to maintain separate [Roma-only] classes in the upper grades in order to preserve the stability of the wholeness of a given class. The complainants submit that the stability of a class should not have been placed above their constitutional rights, multiculturalism and national equality. In that regard the Constitutional Court accepts the complainants’ arguments. While the Constitutional Court considers correct and acceptable the courts’ findings that lack of knowledge of the Croatian language represents an objective obstacle justifying the formation of separate classes for children who do not speak Croatian at all or speak it badly when they start school ... bearing in mind the particular circumstance of the present case, it cannot accept the following conclusion of the first-instance court: ‘Furthermore, the integrity and unity of a class is respected in the upper grades. Therefore, transfer of children from one class to another occurs only exceptionally and in justified cases ... because a class is a homogeneous whole and transferring children from one class to another would produce stress. ... The continuity of a group is a precondition for the development of a class collective ...’ Accordingly, the Constitutional Court cannot accept the following view of the appellate court: ‘The classes are formed when the children enter the first year of their schooling, not every year, and their composition changes only exceptionally. They become a settled whole which makes for work of a higher quality and it is not pedagogically justified to change them. Therefore this court, like the first-instance court, concludes that maintaining established classes did not amount to an unlawful act.’ The above views of the courts would have been acceptable had they referred to the usual situations concerning the assignment of pupils to upper grade classes in primary schools where no objective need for special measures existed, such as forming separate classes for children with inadequate command of Croatian. Considering the circumstances of the present case, the Constitutional Court finds that it is in principle objectively and reasonably justified to maintain separate classes in the upper grades of primary school only for pupils who have not attained the level of Croatian necessary for them to follow the school curriculum of regular classes properly. ... However, there is no objective or reasonable justification for not transferring to a regular class a pupil who has attained proficiency in Croatian in the lower grades of primary school and successfully mastered the prescribed school curriculum. ... Keeping such a pupil in a separate class against his or her will ... for reasons unrelated to his or her needs and skills would be unacceptable from the constitutional point of view with regard to the right of equality before the law, guaranteed under Article 14 § 2 of the Constitution. ... ... [A] constitutional complaint is a particular constitutional instrument for the protection of a legal subject whose human right or fundamental freedom guaranteed under the Constitution has been infringed in an individual act of a State or public body which determined his or her rights and obligations. The present constitutional complaint concerns impugned judgments referring to the school year 2001/02. However, not a single complainant alleges that in that school year he or she was a pupil in a separate [Roma-only] upper-grade class or was personally affected or concerned by the contested practice ... Although it does not concern the individual legal position of any of the complainants ..., in respect of the complainants’ general complaint about the maintaining of Roma-only classes in the upper grades of primary school the Constitutional Court has addressed the following question: – was the continued existence of Roma-only classes in the upper grades of primary school ... caused by the defendants’ intent to discriminate those pupils on the basis of their racial or ethnic origin? ... [N]one of the facts submitted to the Constitutional Court lead to the conclusion that the defendants’ ... practice was aimed at discrimination of the Roma pupils on the basis of their racial or ethnic origin. ... The complainants further complain of a violation of their right to education on the ground that the teaching organised in those classes was more reduced in volume and in scope than the curriculum for primary schools adopted by the Ministry of Education and Sports on 16 June 1999. They consider that ‘their placement in Roma-only classes with an inferior curriculum stigmatises them as being different, stupid, intellectually inferior and children who need to be separated from normal children in order not to be a bad influence on them. Owing to their significantly reduced and simplified school curriculum, their prospects of higher education or enrolment in high schools as well as their employment options or chances of advancement are slimmer ...’ After considering the entire case file, the Constitutional Court has found that the above allegations are unfounded. The case file, which includes the first-instance judgment ..., shows that the allegations of an inferior curriculum in Roma-only classes are not accurate. The Constitutional Court has no reason to question the facts as established by the competent court. The possible difference in curricula between parallel classes for objective reasons (for example the low attendance at Kuršanec Primary School, where in the first term of the school year 2001/02 the pupils in classes 1c, 1d, 2b and 2c missed 4,702 lessons in total, 4,170 of which were missed for no justified reason) does not contravene the requirement that the curriculum be the same in all parallel classes. The Constitutional Court is obliged to point out that neither the Constitution nor the Convention guarantees any specific requirements concerning school curricula or their implementation. First and foremost the Constitution and the Convention guarantee a right of access to educational institutions existing in a given State, as well as an effective right to education, in other words that every person has an equal right to obtain official recognition of the studies which he or she has completed (a similar view was expressed by the European Court of Human Rights in a case relating to certain aspects of the laws on the use of languages in education in [Case “relating to certain aspects of the laws on the use of languages in education in] Belgium[”] (merits), 23 July 1968, Series A no. 6). ... ... [T]he Constitutional Court finds the evidence submitted in the present proceedings insufficient to show beyond doubt that the complainants had to follow a school curriculum of lesser scope. ... Thus, the Constitutional Court considers the complainants’ assertion about being stigmatised as a subjective value judgment, without reasonable justification. The Constitutional Court finds no factual support for the complainants’ assertion that the source of their stigmatisation was an allegedly reduced curriculum owing to which their prospects for further education were lower, and dismisses that assertion as arbitrary. The competent bodies of the Republic of Croatia recognise the level of education a person has completed irrespective of his or her racial or ethnic origin. In that respect everyone is equal before the law, with equal chances of advancement according to their abilities.” 61. Article 14 of the Constitution reads: “Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” 62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 63. Section 67 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff’s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress. 64. The relevant provisions of the Primary Education Act (Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read: “The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education. A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences. The aims of primary education are: – to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations; – to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations. The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.” “Primary education lasts at least eight years. Primary education is in principle mandatory for all children from six to fifteen years of age.” 65. The relevant part of the report concerning the situation of Roma reads: “32. Overall, Roma/Gypsy are reported to continue to face societal discrimination and official inaction when complaints are filed. Progress has been made in the fields of education and public awareness, through the publication of studies on the subject of Romani education, initiatives related to the organisation and financing of education of Roma children, training of Roma teachers, and public forums on the difficulties faced by Roma/Gypsy society. The authorities are encouraged to give further support to such initiatives, taking into account ECRI’s General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies. ...” 66. The relevant parts of this report read: “Access to education 41. Education of Roma/Gypsy children is a serious problem in Croatia. Many Roma/Gypsy children do not go to school, having either dropped out or having never attended. According to Roma/Gypsy representatives, there are regions where not a single Roma/Gypsy child attends school. ECRI understands that the reasons for this situation are complex, and there is no easy solution, however emphasises the need to increase the participation of Roma/Gypsy children at all levels of education. The Croatian authorities are encouraged to make special efforts in this regard. 42. ECRI wishes to draw attention to its General Policy Recommendation No. 3 on combating racism and intolerance against Roma/Gypsies, where the existence of discrimination in explaining the process of social exclusion is highlighted. An investigation should be carried out into the role of stereotypes and prejudices of teachers, which may lead to low expectations for Roma/Gypsy children. ECRI recommends, in this respect, that training be offered to teachers, including information about the particular needs and expectations of Roma/Gypsies and the ability to use this knowledge effectively. As insufficient knowledge of the Croatian language upon entry to classes may also present an obstacle, ECRI emphasises the importance of preparatory classes, additional training in the Croatian language and increased opportunities to study the Roma language in the early years of schooling, which might assist Roma/Gypsy children in integrating into the educational system. ECRI notes with interest initiatives such as the “Programme for Including Roma children in the Education System of the Republic of Croatia”, launched in 1998, and encourages the authorities in their efforts to continue to develop and implement appropriate measures in cooperation with Roma associations. Roma/Gypsy organisations have highlighted the connection between poverty, poor living conditions and school attendance. The Croatian authorities might consider creating special assistance programmes for Roma/Gypsy and other children from extremely poor families who may find the costs of textbooks, other school materials and proper school dress prohibitive.” 67. The relevant parts of this report read: “Education and awareness raising 83. ECRI is concerned to learn that schoolbooks sometimes convey negative images of certain minority groups, particularly ... Roma. ... Situation of the Roma community in Croatia ... 137. ECRI is pleased to learn that in October 2003 the government adopted a national programme for the Roma which aims to resolve many of the difficulties encountered by Roma in their day-to-day lives. The programme is based on the observation that Roma are largely marginalised in social and public activities and experience worse living conditions than the average majority population and other minorities. The programme aims to abolish all forms of discrimination, violence, stereotyping and prejudice against Roma, while ensuring that they do not lose their own identity, culture or traditions. In order to achieve this aim, the programme sets out a series of measures in areas such as access to citizenship, education, housing, access to public services and relations with the police. In 2004, a commission made up of government representatives, Roma and NGO [non-governmental organisation] representatives was set up to monitor the programme and develop a joint action plan for the different ministries. A number of measures have already been taken, such as the training of Roma as assistants in schools or as police officers and the training of young Roma at seminars on participation in public life. ... However, implementation of the programme has not really got off the ground yet and NGOs are critical of the lack of budgetary resources provided, though these are essential to the success of such a programme. The programme must be regarded as positive, although in ECRI’s view it does not sufficiently emphasise the part played by stereotyping and prejudice against Roma, both among the population and among representatives of the public authorities, in the difficulties encountered by this community. ECRI also notes with interest that the government is in the process of adopting a national action plan for Roma integration, which proposes a wide range of measures to improve the situation of Roma. ... Access to education for Roma children 141. In its second report on Croatia, ECRI recommended that the Croatian authorities make special efforts to increase the participation of Roma children at all levels of education. 142. The authorities have taken measures to facilitate Roma children’s access to education, such as setting up nursery school classes enabling them to learn Croatian, training teachers in Roma culture and training young Roma as assistants in schools. Some Roma now receive State grants to enrol in university. However, as they are very recent and applied on a small scale these measures are not enough to offset the fact that Roma children are very much behind in terms of equal opportunities in education. Many Roma children leave school at a very early age. They do not always have access to education in their mother tongue and their own culture in schools, in spite of the legislation on the rights of national minorities which provides for this possibility. The authorities have explained to ECRI that this is because the Roma have not asked for it themselves and because the Romani language is not standardised, with several Romani dialects in Croatia. However, some Roma representatives have expressed the wish that the school curriculum for Roma children should include teaching of their mother tongue and Roma culture, though they also emphasise the importance of learning Croatian. 143. ECRI is particularly concerned by allegations that separate classes solely for Roma children exist alongside classes for non-Roma children in some schools in the Međimurje region. According to several NGOs, including the European Roma Rights Centre, education in the classes set aside for Roma children is of poorer quality than in the other classes. According to the authorities, however, the sole reason why there are still classes comprising only Roma children is the de facto segregation which they face where housing is concerned, since Roma are sometimes in the majority in some areas. Nevertheless, this explanation does not provide a response to allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained. ECRI notes that proceedings for racial segregation are pending before the national courts in this connection. Recommendations 144. ECRI urges the Croatian authorities to take measures without delay to improve equal opportunities for Roma children in education. It stresses the paramount importance of elaborating a short-, medium- and long-term policy in the matter and providing sufficient funds and other resources to implement this policy. In particular, it should be made easier for Roma children to learn Croatian while also allowing those who so wish to be taught their Romani dialect and Roma culture. 145. ECRI encourages the Croatian authorities to conduct an in-depth investigation into the allegations that segregation is practised between Roma and non-Roma children in some schools and to rapidly take all the necessary measures, where appropriate, to put an end to such situations. 146. ECRI reiterates its recommendations that a study be carried out on the influence of stereotyping and prejudices among teachers, which may lead to low expectations of Roma children. It encourages all measures designed to educate teachers about Roma culture.” 68. The relevant parts of the opinion read: “... 28. The Advisory Committee finds that Croatia has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment, housing and education. It appears, however, that Roma issues have recently received increasing attention from the central authorities. The Advisory Committee finds it important that this commitment increases the vigour with which sectoral projects for Roma, such as the ones in the field of education (see also comments under Article 12), are pursued and leads to the development, in consultations with Roma, of more comprehensive programmes and strategies to address the concerns of this national minority. ...” “... 49. While recognising that there appears to be no large-scale separation of Roma children within the educational system of Croatia, the Advisory Committee is highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Advisory Committee stresses that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests. The Advisory Committee supports the efforts of the office of the Ombudsman to review this situation with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes. The Advisory Committee is aware of the reservations expressed by some Roma with respect to the integration of Roma pupils into regular classes and supports efforts to involve Roma parents and Roma organisations in the process aimed at remedying the current situation. The Advisory Committee considers that a key to reaching this aim is to secure that the educational system reflects and takes fully into account the language and culture of the minority concerned, as stipulated in the principles contained in the Committee of Ministers;’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe. The Advisory Committee notes that the government of Croatia adopted in July 1998 a “Programme of Integration of Roma Children in the Educational and School System” which contains a number of useful ideas in this respect. The text of the programme appears however rather cursory in nature, and the Advisory Committee considers that Croatia needs to develop, implement and evaluate further its measures aimed at improving the status of Roma in the educational system. ...” V. Proposal for conclusions and recommendations by the Committee of Ministers “... ... The Committee of Ministers concludes that in certain schools in Croatia, Roma children are reportedly placed in separate classes, and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils. The Committee of Ministers recommends that this question be reviewed, and necessary measures taken, with a view to ensuring that Roma children have equal access to, and opportunities to continue to attend, regular classes, bearing in mind the principles contained in the Committee of Ministers’ Recommendation No. R (2000) 4 on the education of Roma/Gypsy children in Europe.” 69. The relevant parts of the comments read: “... The education of Roma is a serious problem caused by their way of life and their attitude towards the system, laws, rights and obligations of citizens and requires particular efforts and solutions. The Croatian Ministry of Education and Sports, in cooperation with the other ministries and state institutions, local administration and self-government, as well as non-governmental organisations, has initiated programmes to resolve this issue at two levels: (a) Programme of integration of the Roma population into the educational system of the Republic of Croatia. (b) Exercise of minority rights aimed at preserving their mother tongue and culture. Regarding pre-school education, the Ministry of Education and Sports, in cooperation with non-governmental organisations, initiated a programme for the inclusion of Roma children and their families, notably mothers, into the system, but only on a voluntary basis, while at the moment there are no effective mechanisms of obligatory inclusion. At the level of primary and secondary education, Roma children attend classes together with other children. Those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language. This practice is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities. Although this practice has yielded some positive results, priority is given to the organisation of pre-school preparation to help Roma children to overcome the language barrier, learn the basic rules of school conduct, hygienic habits and needs, and strengthen the feeling of affiliation and security in the school environment. The Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children, granting of accommodation for Roma pupils (attending secondary schools), follow up to the process of inclusion, assisting in the preparation of young Roma for the profession of teachers and trainers, providing free school meals and bus transport to and from school and so forth.” 70. The relevant parts of the opinion read: “Article 12 of the Framework Convention [for the Protection of National Minorities] ... Education of Roma children and contacts amongst pupils from different communities ... Present situation (a) Positive developments 128. The authorities seem to be increasingly sensitive to the problems of Roma children in education and have launched new initiatives, including at the pre-school level, which are aimed at improving the situation and attendance of Roma children in schools. The National Programme for Roma Integration details a number of laudable measures that could help to further the protection of the Roma in the educational system, such as the employment of Roma assistant teachers in regular classes and the provision of free meals for children. (b) Outstanding issues 129. The placing of Roma children in separate classes appears to be increasingly rare in Croatia, but this practice, which has been challenged in pending legal cases, continues in some schools in Međimurje County. The National Programme for Roma Integration also endorses the idea of separate first-grade Roma-only classes for those who have not attended pre-school and are not proficient in the Croatian language. Such classes do not appear to be set up to foster teaching in or of Roma language or other elements of Roma culture, but rather to assist the children to obtain basic Croatian language and other skills so that they can meet the demands of the educational system. While recognising that these are valuable aims, the Advisory Committee considers that pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only. ... Recommendations 131. Croatia should fully implement the valuable educational initiatives contained in the National Programme for Roma Integration, including those promoting increased attendance of Roma children in pre-schools. The envisaged remedial first-grade classes should, however, not be conceived a priori as Roma classes, but as classes in which individuals are placed on the basis of their skills and needs, regardless of their ethnicity. ...” 71. The relevant parts of the comments read: Education of Roma children and contacts amongst pupils from different communities “The programme of pre-school education is intended to encompass as large a number of Roma children as possible and thus create the precondition for their successful entrance into the primary education system. The Ministry of Science, Education and Sports has also supported the establishment of kindergartens for Roma children in cooperation with Roma NGOs, international organisations and local authorities. The responsible bodies are also helping with the enrolment of Roma pupils in institutions of secondary and higher education and are providing student grants. By increasing the number of Roma children in pre-school education, conditions are created for their enrolment in regular primary schools.” 72. The relevant parts of the report read: “III. Situation of the Roma community ... 27. In spite of non-discrimination on a legal plane, the treatment meted out to the Roma minority still raises anxieties since this population continues to undergo social and economic discrimination. It should nevertheless be observed that efforts have been undertaken in institutional matters especially, the government having set up a National Council of Roma chaired by the Deputy Prime Minister. Locally, and around Međimurje in particular, most districts have had water and electricity connected and are served by school transport. ... A. Segregation in schools 30. The year 2002 saw the worsening of problems around the town of Čakovec which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children. Under strong national and international pressure, the authorities recognised that these practices existed and undertook to review this question. 31. When I visited Čakovec, I had the opportunity to visit a primary school with a mixed enrolment. I hasten to thank the head and the staff of this school for their reception. My discussions with them satisfied me that the situation had substantially improved thanks to the commitment of all concerned. Certain difficulties still lingered, however. The Međimurje region has a high proportion of Roma and schools have a large enrolment of Roma pupils who make up as much as 80% of certain age bands. But these figures cannot justify any segregation whatsoever between children, who must be equally treated. I sincerely hope there will be no recurrence of the events which took place in the past, and it is imperative to guarantee that the social and ethnic mix is maintained for the sake of having Roma and non-Roma children educated together in the same classes. 32. Difficulties over Roma pupils’ Croatian language proficiency were also reported to me. I would stress the importance of putting all pupils through the same syllabus and the same teaching process in one class. Nonetheless, the knowledge gap problem is not to be evaded. As a remedy to it, it could be useful to set up at national level pre-school classes for children whose mother tongue is not Croatian. That way, they will acquire a sufficient grounding in the Croatian language to be able to keep up with the primary school courses later, while at the same time familiarising themselves with the school institution. In the second place, it rests with the parents to ensure the sound learning of the language and their children’s regular attendance for the entire school course.” 73. In the third section of the report, which concerns discrimination in education, the Commissioner for Human Rights noted that the fact that a significant number of Roma children did not have access to education of a similar standard to that enjoyed by other children was in part a result of discriminatory practices and prejudices. In that connection, he noted that segregation in education was a common feature in many Council of Europe member States. In some countries there were segregated schools in segregated settlements, in others special classes for Roma children in ordinary schools. Being subjected to special schools or classes often meant that these children followed a curriculum inferior to those of mainstream classes, which diminished their opportunities of further education and finding employment in the future. At the same time, segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excluded Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalisation. 74. It was also noted that special classes or special curricula for Roma had been introduced with good intentions, for the purposes of overcoming language barriers or remedying the lack of pre-school attendance of Roma children. Evidently, it was necessary to respond to such challenges, but segregation or systematic placement of Roma children in classes which followed a simplified or a special Romani-language curriculum while isolating them from other pupils was clearly a distorted response. Instead of segregation, significant emphasis had to be placed on measures such as pre-school and in-school educational and linguistic support as well as the provision of school assistants to work alongside teachers. In certain communities, it was crucial to raise the awareness of Roma parents – who themselves might not have had the possibility to attend school – of the necessity and benefits of adequate education for their children. 75. In conclusion, the Commissioner made a number of recommendations related to education. Where segregated education still existed in one form or another, it had to be replaced by ordinary integrated education and, where appropriate, banned through legislation. Adequate resources had to be made available for the provision of pre-school education, language training and school assistant training in order to ensure the success of desegregation efforts. Adequate assessment had to be made before children were placed in special classes, in order to ensure that the sole criterion in the placement was the objective needs of the child, not his or her ethnicity. 76. The excerpt of the report concerning Croatia reads: “52. While visiting Croatia in 2004, I learned of a two-year programme, initiated in 2002, to prepare all Roma children for schools, under which children were taught various skills in the Croatian language. Under the Croatian Action Plan for the Decade for Roma Inclusion, special efforts to improve pre-school education for Roma children have been continued with a view to full integration in[to] the regular school system. ...” 77. The Recommendation provides as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to achieve greater unity between its members and that this aim may be pursued, in particular, through common action in the field of education; Recognising that there is an urgent need to build new foundations for future educational strategies toward the Roma/Gypsy people in Europe, particularly in view of the high rates of illiteracy or semi-literacy among them, their high drop-out rate, the low percentage of students completing primary education and the persistence of features such as low school attendance; Noting that the problems faced by Roma/Gypsies in the field of schooling are largely the result of long-standing educational policies of the past, which led either to assimilation or to segregation of Roma/Gypsy children at school on the grounds that they were ‘socially and culturally handicapped’; Considering that the disadvantaged position of Roma/Gypsies in European societies cannot be overcome unless equality of opportunity in the field of education is guaranteed for Roma/Gypsy children; Considering that the education of Roma/Gypsy children should be a priority in national policies in favour of Roma/Gypsies; Bearing in mind that policies aimed at addressing the problems faced by Roma/Gypsies in the field of education should be comprehensive, based on an acknowledgement that the issue of schooling for Roma/Gypsy children is linked with a wide range of other factors and pre-conditions, namely the economic, social and cultural aspects, and the fight against racism and discrimination; Bearing in mind that educational policies in favour of Roma/Gypsy children should be backed up by an active adult education and vocational education policy; ... Recommends that in implementing their education policies the governments of the member States: – be guided by the principles set out in the appendix to this Recommendation; – bring this Recommendation to the attention of the relevant public bodies in their respective countries through the appropriate national channels.” 78. The relevant sections of the Appendix to Recommendation No. R (2000) 4 read as follows: “Guiding principles of an education policy for Roma/Gypsy children in Europe I. Structures 1. Educational policies for Roma/Gypsy children should be accompanied by adequate resources and the flexible structures necessary to meet the diversity of the Roma/Gypsy population in Europe and which take into account the existence of Roma/Gypsy groups which lead an itinerant or semi-itinerant lifestyle. In this respect, it might be envisaged having recourse to distance education, based on new communication technologies. 2. Emphasis should be put on the need to better coordinate the international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies. 3. To this end member States should make the ministries of education sensitive to the question of education of Roma/Gypsy children. 4. In order to secure access to school for Roma/Gypsy children, pre-school education schemes should be widely developed and made accessible to them. 5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system. 6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school. 7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils. II. Curriculum and teaching material 8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States. 9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies. 10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes. 11. The member States should also encourage the development of teaching material based on good practices in order to assist teachers in their daily work with Roma/Gypsy pupils. 12. In the countries where the Romani language is spoken, opportunities to learn in the mother tongue should be offered at school to Roma/Gypsy children. III. Recruitment and training of teachers 13. It is important that future teachers should be provided with specific knowledge and training to help them understand better their Roma/Gypsy pupils. The education of Roma/Gypsy pupils should however remain an integral part of the general educational system. 14. The Roma/Gypsy community should be involved in the designing of such curricula and should be directly involved in the delivery of information to future teachers. 15. Support should also be given to the training and recruitment of teachers from within the Roma/Gypsy community. ...” 79. The relevant parts of the Recommendation read: “The Committee of Ministers ... 1. Recommends that the governments of member States, with due regard for their constitutional structures, national or local situations and educational systems: ... b. elaborate, disseminate and implement education policies focusing on ensuring non-discriminatory access to quality education for Roma and Traveller children, based on the orientations set out in the appendix to this recommendation; ... d. ensure, through local and regional authorities, that Roma and Traveller children are effectively accepted in school; ...” 80. The relevant sections of the Appendix to Recommendation CM/Rec(2009)4 read as follows. “I. Principles of policies ... 5. Member States should ensure that legal measures are in place to prohibit segregation on racial or ethnic grounds in education, with effective, proportionate and dissuasive sanctions, and that the law is effectively implemented. Where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures. Policies and measures taken to fight segregation should be accompanied by appropriate training of educational staff and information for parents. 6. Educational authorities should set up assessment procedures that do not result in risks of enrolling children in special education institutions based on linguistic, ethnic, cultural or social differences but facilitate access to schooling. Roma and Traveller representatives should be involved in defining and monitoring these procedures. ... II. Structures and provision for access to education 9. Roma and Travellers should be provided with unhindered access to mainstream education at all levels subject to the same criteria as the majority population. To accomplish this goal, imaginative and flexible initiatives should be taken as required in terms of educational policy and practice. Appropriate measures should also be taken to ensure equal access to educational, cultural, linguistic and vocational opportunities offered to all learners, with particular attention to Roma and Traveller girls and women. 10. Attendance of pre-school education for Roma and Traveller children should be encouraged, under equal conditions as for other children, and enrolment in pre-school education should be promoted if necessary by providing specific support measures. ... III. Curriculum, teaching material and teacher training ... 19. Educational authorities should ensure that all teachers, and particularly those working in ethnically mixed classes, receive specialised training on intercultural education, with a special regard to Roma and Travellers. Such training should be included in officially recognised programmes and should be made available in various forms, including distance and online learning, summer schools, etc. 20. Teachers working directly with Roma and Traveller children should be adequately supported by Roma or Traveller mediators or assistants and should be made aware that they need to engage Roma and Traveller children more in all educational activities and not de-motivate them by placing lower demands upon them and encourage them to develop their full potential. ...” 81. The Parliamentary Assembly made, inter alia, the following general observations: “1. One of the aims of the Council of Europe is to promote the emergence of a genuine European cultural identity. Europe harbours many different cultures, all of them, including the many minority cultures, enriching and contributing to the cultural diversity of Europe. 2. A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit into the definitions of national or linguistic minorities. 3. As a non-territorial minority, Gypsies greatly contribute to the cultural diversity of Europe. In different parts of Europe they contribute in different ways, be it by language and music or by their trades and crafts. 4. With central and east European countries now member States, the number of Gypsies living in the area of the Council of Europe has increased drastically. 5. Intolerance of Gypsies by others has existed throughout the ages. Outbursts of racial or social hatred, however, occur more and more regularly, and the strained relations between communities have contributed to the deplorable situation in which the majority of Gypsies lives today. 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. 8. The guarantee of the enjoyment of the rights and freedoms set forth in Article 14 of the European Convention on Human Rights is important for Gypsies as it enables them to maintain their individual rights. ...” 82. As far as education is concerned, the Recommendation states: “vi. the existing European programmes for training teachers of Gypsies should be extended; ... viii. talented young Gypsies should be encouraged to study and to act as intermediaries for Gypsies; ...” 83. This Recommendation states, inter alia: “... 3. Today Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of Roma are turning into ethnic discrimination, which usually affects the weakest social groups. 4. Roma form a special minority group, in so far as they have a double minority status. They are an ethnic community and most of them belong to the socially disadvantaged groups of society. ... 15. The Council of Europe can and must play an important role in improving the legal status, the level of equality and the living conditions of Roma. The Assembly calls upon the member States to complete the six general conditions, which are necessary for the improvement of the situation of Roma in Europe: ... c. to guarantee equal treatment for the Romany minority as an ethnic or national minority group in the field of education, employment, housing, health and public services. Member States should give special attention to: i. promoting equal opportunities for Roma on the labour market; ii. providing the possibility for Romany students to participate in all levels of education from kindergarten to university; iii. developing positive measures to recruit Roma in public services of direct relevance to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local administration; ... d. to develop and implement positive action and preferential treatment for the socially deprived strata, including Roma as a socially disadvantaged community, in the field of education, employment and housing ... e. to take specific measures and create special institutions for the protection of the Romany language, culture, traditions and identity: ... ii. to encourage Romany parents to send their children to primary school, secondary school and higher education, including college or university, and give them adequate information about the necessity of education; ... v. to recruit Roma teaching staff, particularly in areas with a large Romany population; f. to combat racism, xenophobia and intolerance and to ensure non-discriminatory treatment of Roma at local, regional, national and international levels: ... vi. to pay particular attention to the phenomenon of discrimination against Roma, especially in the fields of education and employment; ...” 84. The relevant sections of this Recommendation state: “The European Commission against Racism and Intolerance: ... Recalling that combating racism, xenophobia, anti-Semitism and intolerance forms an integral part of the protection and promotion of human rights, that these rights are universal and indivisible, and that all human beings, without any distinction whatsoever, are entitled to these rights; ... Noting that Roma/Gypsies suffer throughout Europe from persisting prejudices, are victims of a racism which is deeply rooted in society, are the target of sometimes violent demonstrations of racism and intolerance and that their fundamental rights are regularly violated or threatened; Noting also that the persisting prejudices against Roma/Gypsies lead to discrimination against them in many fields of social and economic life, and that such discrimination is a major factor in the process of social exclusion affecting many Roma/Gypsies; ... recommends the following to governments of member States: ... – 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 employment, housing and education; ... – to vigorously combat all forms of school segregation towards Roma/Gypsy children and to ensure the effective enjoyment of equal access to education; ...” 85. The following definitions are used for the purposes of this Recommendation: “(a) ’racism’ shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons. (b) ’direct racial discrimination’ shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (c) ’indirect racial discrimination’ shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” 86. In the explanatory memorandum to this Recommendation, it is noted (point 8) that the definitions of “direct” and “indirect” racial discrimination contained in paragraph 1 (b) and (c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and in Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and on the case-law of the European Court of Human Rights. 87. Article 26 of the Covenant provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 88. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non-discrimination, the Committee expressed the following opinion: “7. ... the Committee believes that the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ... 12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ...” 89. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted: “... the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.” 90. The relevant part of Article 1 of this Convention provides: “... the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ...” 91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia: “1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. ... 2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.” 92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed: “3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. 4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...” 93. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere: “17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities. 18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education. 19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.” 94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia: “13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.” 95. The relevant parts of Articles 28 and 30 of this Convention provide as follows. “1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; ... (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. ...” “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” 96. The relevant part of Article 4 provides: “1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. ...” 97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows. “1. For the purposes of this Convention, the term ‘discrimination’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man. ...” “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions; ...”
| 1
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train
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001-79876
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ENG
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TUR
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ADMISSIBILITY
| 2,007
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GÜNGÖR v. TURKEY
| 4
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Inadmissible
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Nicolas Bratza
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The applicant, Mrs Pınar Güngör, is a Turkish national who was born in 1937 and lives in Ankara. She was represented before the Court by Mr K. Berzeg, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of 102.08 square metres of land, in a plot of 700 square metres (plot no. 15/A), in Kızılay Square, in the Çankaya district of Ankara. The plot in question is situated in front of the Soysal Business Centre, of which the applicant is a co-owner. On 22 March 1994 the applicant brought an action for compensation against the Ankara Municipality (Ankara Büyükşehir Belediyesi) before the Ankara Civil Court of First Instance. She submitted, inter alia, that the Ankara Municipality occupied plot no. 15/A illegally for the purposes of constructing a tube station in Kızılay Square. The applicant maintained that the Municipality neither conducted expropriation proceedings nor compensated her for the damage resulting from the de facto taking of her property. She requested to be paid the value of the plot in question. She also submitted an expert report dated 16 March 1994 in support of her claim. According to this report, the Municipality was in actual possession of plot no. 15/A. The Municipality denied the allegations and argued that they had been in actual possession of plot no. 15/A since 1967. They therefore argued that the applicant’s action for compensation had to be rejected as being time-barred. On 15 April 1994 the Ankara Municipality submitted a sketch plan to the Ankara Civil Court of First Instance according to which plot no. 15/A was situated next to two other plots of land belonging to the applicant and her co-owners and was left by the owners as an access area. On 16 September 1994 the Ankara Civil Court of First Instance requested the Çankaya and Ankara Municipalities to submit information on whether plot no. 15/A was used by these municipalities. On 5 October 1994 the Ankara Land Registry Directorate informed the Ankara Civil Court of First Instance that the applicant was one of the co-owners of plot no. 15/A and that, in the registry records, it was stated that the plot was “to be expropriated”. On 7 October 1994 the Çankaya Municipality informed the first-instance court that the applicant’s land had been used by the Ankara Municipality since 16 March 1967. On 18 November 1994 the Ankara Municipality informed the firstinstance court that there had been a de facto interference with the applicant’s co-ownership rights to plot no. 15/A by the Municipality during the construction of the tube station in Kızılay Square. On an unspecified date, the first-instance court ordered an expert report to be prepared in order to determine the value of plot no. 15/A. On 8 April 1996 a committee of experts submitted a report to the Ankara Civil Court of First Instance. According to the experts’ report, the Municipality was in actual possession of plot no. 15/A although the applicant was identified as the co-owner of the plot in the land registry records. The experts stated that the value of the land that the applicant co-owned was 7,145,600,000 Turkish liras (TRL) (258,273 euros (EUR)). On 17 March 1997 the Ankara Municipality informed the Ankara Civil Court of First Instance that plot no. 15/A, which was located in front of the Soysal Business Centre, had been used during the construction of the tube station with a view to ensuring the security of the surrounding area. Following the lodging of the case by the applicant, they separated the plot from the entrance to the tube station by means of a wall and restored the plot to its original state by paving it. On 30 April 1997 another expert report was drafted. According to this report, plot no. 15/A had been used during the construction of the tube station in Kızılay Square in order to ensure the security of the neighbouring buildings. The report further indicated that the plot in question had been paved by the Municipality and that it was used as a pedestrian area. On 7 July 1997 the Ankara Civil Court of First Instance held that the Ankara Municipality had been in actual possession of the land since 1967. It accordingly rejected the case as having been introduced outside the statutory time-limit laid down by the Expropriation Act (Law no. 2942). The applicant appealed. On 23 February 1998 the Court of Cassation rendered its decision. It observed that according to the local master building and settlement plan (imar planı), plot no. 15/A was used as an access area for the surrounding buildings. The Court of Cassation considered that the administration could not therefore be considered to be in actual possession of the plot. It further held that the legal reasoning of the first-instance court was erroneous since plot no. 15/A had only been used to ensure the neighbouring buildings’ security during the construction of the tube station and that there had been no interference with the plot afterwards. The Court of Cassation based its assessment on the expert report of 30 April 1997. It nevertheless agreed with the Ankara Civil Court of First Instance that the case should be dismissed and upheld the judgment of 7 July 1997, but for different reasons. On 13 May 1998 the Court of Cassation dismissed the applicant’s request for rectification of the decision of 23 February 1998. On 9 June 1998 the decision of 13 May 1998 was served on the applicant. It appears from this document that the applicant is one of the co-owners of plot no. 15/A. According to the judgment of the Ankara Civil Court of First Instance of 23 May 1977, on 24 June 1964 the Ankara Municipality brought an action against the applicant’s and her co-owners’ heirs and requested that the title to plot no. 15/A be transferred to it. The court dismissed the case. The Municipality informed one of the applicant’s co-owners, Zeki Güngör, that plot no. 15/A was the front access area of the buildings next to the plot and that construction of a building on the plot was not possible. The Municipality proposed that the Soysal Business Centre Directorate transfer the title to plot no. 15/A to it free of charge. It further proposed that the Municipality would, in return, construct one of the exits of the tube station in the Business Centre - which would normally cost 300,000 US dollars (USD) - free of charge. Article 13 of Law no. 2577 on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administration may request compensation from the administration. In the event of complete or partial rejection of a compensation request, or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.
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train
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001-77249
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ENG
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RUS
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CHAMBER
| 2,006
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CASE OF THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA
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Violation of Art. 11 read in the light of Art. 9;Not necessary to examine under Art. 14;Non-pecuniary damage - financial award
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
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8. The Salvation Army worked officially in Russia from 1913 to 1923 when it was dissolved as an “anti-Soviet organisation”. 9. The Salvation Army resumed its activities in Russia in 1992 when a group of Russian nationals held a meeting and adopted the articles of association of the Moscow branch of The Salvation Army. 10. On 6 May 1992 the Justice Department of the Moscow City Council of People’s Deputies registered the applicant branch as a religious organisation with status as a legal entity. 11. On 12 September 1997 the Moscow Justice Department registered the applicant branch’s amended articles of association. 12. On 1 October 1997 a new Law on freedom of conscience and religious associations (“the Religions Act”) came into force. It required all religious associations which had previously been granted the status of legal entities to bring their articles of association into conformity with the Act and to re-register by 31 December 1999. 13. On 18 February 1999 the applicant submitted to the Moscow Justice Department an application for re-registration as a local religious organisation. 14. On 16 August 1999 the deputy head of the Moscow Justice Department notified the applicant that its request for re-registration was being denied. He advanced three grounds for this refusal. Firstly, it was claimed that, at the meeting of the Financial Council (the governing body of the applicant branch) at which amendments to the founding documents had been adopted, only five members had been in attendance, whereas the Religions Act required that a religious organisation should have at least ten founding members. Secondly, it was alleged that no visas for the applicant branch’s foreign members, or other documents establishing their lawful residence in Russian territory, had been provided. Thirdly, the deputy head referred to the fact that the applicant branch was subordinate to a centralised religious organisation in London and inferred therefrom that the applicant branch was “most probably” a representative office of a foreign religious organisation operating on behalf and by order of the latter. Accordingly, its activities were to be governed by Government Regulation no. 310 (see paragraph 46 below). 15. On 7 September 1999 the applicant challenged the refusal before the Presnenskiy District Court of Moscow. The Moscow Justice Department submitted its written comments, in which it advanced a new ground for the refusal of registration. “... Article 6 of the Charter provides that members of the Branch shall include supporters, soldiers, local officers and officers headed by the Officer Commanding, who is appointed from London. Members of the Branch wear a uniform and perform service, which means that the Branch is a paramilitary organisation. Pursuant to Presidential Decree no. 310 of 23 March 1995 ‘on measures to secure coordinated actions by State authorities in the fight against fascism and other forms of political extremism in the Russian Federation’, no paramilitary formations may be established in the Russian Federation. We do not consider the use of the word ‘army’ in the name of a religious organisation to be legitimate. The Large Encyclopaedic Dictionary defines the meaning of this word as: 1. The totality of a State’s armed forces ...” As to the remainder, the Moscow Justice Department repeated and elaborated on the grounds for refusal set out in the letter of 16 August 1999. 16. On 5 July 2000 the Presnenskiy District Court gave judgment. It determined that the applicant branch was a representative office of the international religious organisation “The Salvation Army” and therefore was not eligible for registration as an independent religious organisation. In the court’s opinion, this fact also prevented the applicant branch from being granted re-registration. Secondly, it referred to Article 13 § 5 of the Constitution, banning the founding and functioning of public associations which advocated a violent change in the constitutional principles of the Russian Federation or destruction of its integrity, undermined the security of the State, created paramilitary formations, or caused social, racial, ethnic or religious division or conflict. The court continued as follows: “In the course of analysis of the Charter, certain provisions stood out, on the one hand, as being imbued with barrack-room discipline, in which members of the religious organisation show unquestionable subordination to its management and, on the other hand, as relieving the management and the organisation as a whole of any responsibility for its members’ activities. Thus, according to Article 6 § 3 of the Charter, ‘the members of the Branch shall act in compliance with The Salvation Army’s Orders and Regulations and with the instructions of the Officer Commanding’, ... ‘the Branch as a whole shall not be liable for infringements of the legislation of the Russian Federation perpetrated by individual members of the Branch’. This wording of the Charter leads one to conclude that the Charter assumes that the members of the organisation will inevitably break Russian law in the process of executing The Salvation Army’s Orders and Regulations and the instructions of the Officer Commanding ... The Branch excludes its liability for illegal service activity by its members.” Thirdly, the court pointed out that the grounds for judicial liquidation of the applicant branch, as set out in its articles of association, were inconsistent with those laid down in Russian law. Lastly, the court held that the applicant branch had not disclosed its objectives, given that the articles of association failed to describe “all the decisions, regulations and traditions of The Salvation Army”. 17. On 28 November 2000 the Moscow City Court upheld that judgment on appeal, focusing mainly on the applicant branch’s foreign ties. It pointed out that the organisation’s executive body included five foreign nationals who had multiple-entry visas, but not residence permits, whereas section 9(1) of the Religions Act required founders to be of Russian nationality. Noting the location of The Salvation Army’s headquarters abroad and the presence of the word “branch” in its name, the City Court concluded that the Moscow Justice Department had correctly insisted on registration of the applicant branch as a representative office of a foreign religious organisation. As a subsidiary argument, the City Court endorsed the District Court’s finding that the articles of association did not indicate the precise religious affiliation of its members because it was described as “Evangelical Protestant Christian”, certain clauses of the articles of association mentioned the “faith of The Salvation Army”, and its objective was the “advancement of the Christian faith”. On the allegedly paramilitary nature of the applicant’s activities, the City Court noted: “The argument that [the applicant] is not a paramilitary organisation does not undermine the [first-instance] court’s findings that the Branch is a representative office of a foreign religious organisation, The Salvation Army, and that the documents submitted for re-registration do not conform to the requirements of Russian law.” 18. On 12 July 2000 the Ministry of Education of the Russian Federation sent an instruction “on activities of non-traditional religious associations in the territory of the Russian Federation” to Russian regional education departments. The instruction stated, inter alia: “... the international religious organisation The Salvation Army is expanding its activities in the central part of Russia. Its followers attempt to influence young people and the military. The Salvation Army formally represents the Evangelical Protestant branch of Christianity; in essence, however, it is a quasi-military religious organisation that has a rigid hierarchy of management. The Salvation Army is managed and funded from abroad.” The applicant branch submitted that this extract was copied verbatim from an information sheet prepared by the Federal Security Service of the Russian Federation and forwarded to the Ministry of Education on 29 May 2000. 19. On 31 December 2000 the time-limit for re-registration of religious organisations expired. Organisations that had failed to obtain re-registration were liable for dissolution through the courts. 20. On 2 August and 10 September 2001 the Moscow City Court and the Supreme Court of the Russian Federation, respectively, refused the applicant branch’s request to lodge an application for supervisory review. 21. On 29 May 2001 the Moscow Justice Department brought an action for dissolution of the applicant branch. 22. On 12 September 2001 the Taganskiy District Court of Moscow granted the action for dissolution. The court found that the applicant branch had failed to notify the Moscow Justice Department on time about the continuation of its activities and had failed to obtain re-registration within the time-limit set by the Religions Act. The court held that the applicant branch had ceased its activities and that it was to be stripped of its status as a legal entity and struck off the Unified State Register of Legal Entities. On 6 December 2001 the Moscow City Court upheld that judgment. 23. On 10 September 2001 the applicant brought a complaint before the Constitutional Court challenging the constitutionality of section 27(4) of the Religions Act, which provided for dissolution of religious organisations that had failed to re-register before the time-limit. The applicant argued that the contested provision imposed dissolution as a form of penalty which could be imposed on a religious organisation on purely formal grounds, in the absence of any violations or offences on the part of the organisation. It maintained that the possibility of no-fault penalty was incompatible with the rule of law and constituted an encroachment on its constitutional rights. 24. On 7 February 2002 the Constitutional Court ruled on the complaint. It held that re-registration of a religious organisation could not be made conditional on the fulfilment of requirements that were introduced by the Religions Act and which had not legally existed when the organisation was founded. A court could only decide on the dissolution of an organisation which had failed to bring its documents into compliance with the Act if it was duly established that the organisation had ceased its activities or had engaged in unlawful activities. The court also emphasised that a judicial decision on dissolution of an organisation that had failed to obtain re-registration was to be reasoned beyond a mere reference to such formal grounds for dissolution as the failure to re-register or the failure to provide information on the continuation of its activities. Finally, the court held that the applicant’s case was to be reheard in the part affected by the Constitutional Court’s different interpretation of the Religions Act. 25. On 1 August 2002 the Presidium of the Moscow City Court quashed the judgment of 12 September 2001 and remitted the case for a fresh examination by a differently composed bench. 26. On 18 February 2003 the Taganskiy District Court of Moscow dismissed the action for dissolution of the applicant branch brought by the Moscow Justice Department. The court founded its decision on the Constitutional Court’s ruling. 27. On 20 March 2003 the Moscow Justice Department lodged an appeal. It submitted, firstly, that the judicial decisions upholding its refusal of re-registration remained effective and, secondly, that the entering of information on the applicant branch in the Unified State Register of Legal Entities did not constitute re-registration for the purposes of the Religions Act. 28. On 16 April 2003 the Moscow City Court dismissed the appeal and upheld the District Court’s judgment of 18 February 2003. 29. The applicant submitted that the refusal to re-register it had had an adverse impact on its activities. 30. Following the expiry of the time-limit for re-registration on 31 December 2000, the applicant branch’s assets had had to be transferred, in order to avoid seizure, to the community of The Salvation Army which had been re-registered at federal level. The transfer process had required considerable time and effort, involving: title to three properties; title to and registration of fourteen vehicles; opening of a new bank account; replacement of every employee’s contract; renegotiation of twenty-six rental contracts, etc. Each of these transfers had necessitated complex bureaucratic steps and a diversion of resources from religious activities. 31. The refusal had also resulted in negative publicity which severely undermined the applicant branch’s efforts at charitable fund-raising and generated distrust among landlords who refused to negotiate leases with the applicant branch. 32. In at least one neighbourhood, the applicant branch’s mission of delivering hot meals to house-bound elderly persons had had to be stopped entirely, because an official of the local administration had refused to work with the applicant branch as it had no official registration. 33. The lack of re-registration had made it impossible for twenty-five foreign employees and seven non-Moscow Russian employees to obtain residence registration in Moscow, which was required by law for everyone who stayed in the city for more than three days. 34. The articles of association of the applicant branch, approved on 6 May 1992 and amended on 2 September 1997, read in the relevant parts as follows: “(1) The Religious Association called Moscow Branch of The Salvation Army, a non-commercial charitable organisation, was established by its first members ... with the aim of professing and advancing the Christian religion ... (2) The first members are parties who uphold the Articles of Faith of The Salvation Army as set out in Schedule I hereto ... (3) The Branch shall be part of The Salvation Army international religious organisation and shall be subordinate thereto. ... (5) The religious activities of the Branch shall be determined according to the Articles of Faith of The Salvation Army as an evangelistic Christian church.” “(1) The objectives of the Branch shall be the advancement of the Christian faith, as promulgated in the religious doctrines which are professed, believed and taught by The Salvation Army, the advancement of education, the relief of poverty and other acts of charity ...” 35. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, freely to choose, have and share religious and other beliefs and to manifest them in practice. 36. Article 30 provides that everyone shall have the right to freedom of association. 37. On 1 October 1997 the Federal Law on freedom of conscience and religious associations (no. 125-FZ of 26 September 1997 – “the Religions Act”) came into force. 38. The founding documents of religious organisations that had been established before the Religions Act were to be amended to conform to the Act. Until so amended, the founding documents remained operative in the part which did not contradict the terms of the Act (section 27(3)). 39. By a letter of 27 December 1999 (no. 10766-СЮ), the Ministry of Justice informed its departments that the Religions Act did not establish a special procedure for re-registration of religious organisations. Since section 27(3) required them to bring their founding documents into conformity with the Religions Act, the applicable procedure was the same as that for registration of amendments to the founding documents described in section 11(11), which provided that the procedure for registration of amendments was the same as that for registration of a religious organisation. 40. The list of documents submitted for registration was set out in section 11(5). If the governing centre or body to which the religious organisation was subordinate was located outside Russia, the religious organisation was additionally required to submit the certified articles of association of that foreign centre or body (section 11(6)). 41. Section 12(1) stated that registration of a religious organisation could be refused if: “– the aims and activities of a religious organisation contradict the Russian Constitution or Russian laws – with reference to specific legal provisions; – the organisation has not been recognised as a religious one; – the articles of association or other submitted materials do not comply with Russian legislation or contain inaccurate information; – another religious organisation has already been registered under the same name; – the founder(s) has (have) no capacity to act.” 42. Section 12(2) provided that a reasoned refusal of registration was to be communicated to the interested party in writing. It was prohibited to refuse to register a religious organisation on the ground that its establishment was inexpedient. 43. Re-registration could be denied to a religious organisation if there existed grounds for its dissolution or for the banning of its activities, as set out in section 14(2), which established the following list of grounds for dissolution of a religious organisation and the banning of its activities. “– breach of public security and public order, the undermining of State security; – actions aimed at a forcible change in the foundations of the constitutional structure or destruction of the integrity of the Russian Federation; – formation of armed units; – propaganda of war, incitement to social, racial, ethnic or religious discord or hatred between people; – coercion to destroy the family; – infringement of the personality, rights and freedoms of citizens; – infliction of harm, established in accordance with the law, to the morality or health of citizens, including the use of narcotic or psychoactive substances, hypnosis, commission of depraved and other disorderly acts in connection with religious activities; – encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life or health-threatening conditions; – interference with the receipt of compulsory education; – coercion of members and followers of a religious association and other persons to alienate their property for the benefit of the religious association; – hindering a citizen from leaving a religious association by threatening harm to life, health, property, if the threat can actually be carried out, or by application of force or commission of other disorderly acts; – inciting citizens to refuse to fulfil their civic duties established by law or to commit other disorderly acts.” 44. Section 27(4) in its original wording specified that the re-registration of religious organisations was to be completed by 31 December 1999. Subsequently the time-limit was extended until 31 December 2000. Following the expiry of the time-limit, religious organisations were liable for dissolution by a judicial decision issued on an application by a registration authority. 45. On 1 July 2002 a new Federal Law on the State registration of legal entities (no. 129-FZ of 8 August 2001) came into force. State registration of legal entities was delegated to the Ministry for Taxes and Duties, which was to receive, within six months, the lists and files of registered legal entities from the bodies that had previously been in charge of their registration, and to enter that information into the Unified State Register of Legal Entities (Government Regulations nos. 319 of 17 May 2002 and 438 and 441 of 19 June 2002). 46. By Regulation no. 130 of 2 February 1998, the government approved the procedure for registration of representative offices of foreign religious organisations. The Regulation defines a foreign religious organisation as an organisation established outside Russia under the laws of a foreign State (point 2). A representative office of a foreign religious organisation does not have the status of a legal entity (point 3) and may not engage in ritual and religious activities (point 5). 47. The relevant part of the Report by the Committee on the Honouring of Obligations and Commitments by member States of the Council of Europe (Monitoring Committee, doc. 9396, 26 March 2002) on the honouring of obligations and commitments by the Russian Federation stated: “95. The Russian Constitution safeguards freedom of conscience and of religion (Article 28); the equality of religious associations before the law and the separation of church and State (Article 14), and offers protection against discrimination based on religion (Article 19). The law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new Federal Law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions. 96. ... In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many section of the 1997 Law on freedom of conscience and religious associations do not meet Russia’s international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended. 97. In its preamble the law recognises ‘the special role of Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life’ and respects ‘Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia’. ... 98. According to the regulations by the Ministry of Justice – responsible for the implementation of the Law on freedom of conscience and religious associations – religious organisations established before the law came into force (26 September 1997) had to re-register before 31 December 2000. 99. The registration process was finally completed on 1 January 2001 as the State Duma decided to extend the deadline twice. About 12,000 religious organisations and groups have been registered, and only 200 were refused their registration, most of them because they failed to produce a complete file. Many others have, for a variety of reasons, failed to register. The Minister of Justice, Mr Chaika, strongly rejected allegations that the Orthodox Church had exerted pressure on the Ministry to prevent some religious organisations from obtaining their registration. Mr Chaika also indicated that experts of the Ministry had ‘closely examined’ the status of The Salvation Army and the Jehovah’s Witnesses, and had come to the conclusion that nothing prevented [their] registration at the federal level. 100. The Salvation Army, which feeds around 6,000 Russians every month in the winter, has had to waste tens of thousands of dollars in legal fights over registration, and the Catholic church (as well as the Jewish community) has had trouble getting visas for its foreign clergy. Some other religious organisations have also been prevented from being registered at the local level: the Adventist Church, the Pentecostal Church, the Baptists, the Evangelist Church and other churches in particular in Tatarstan, in the region of Rostov and in Vladimir oblast. These religious organisations also voiced complaints that they had serious difficulties to settle, to build or buy their places of worship, or to recover confiscated properties. Some among them – e.g., the True Orthodox Church, the Union of Evangelists Pentecotists – have claimed that they suffered from repeated harassment by the authorities. 101. Indeed, there have been cases where, even if a religious organisation had re-registered nationally, local authorities created obstacles. ... ... 103. Although on 22 February 2001, the Russian Justice Ministry finally re-registered The Salvation Army in Russia, at federal level, registration had been constantly denied to the Moscow chapter of this religious organisation by the Chief Directorate of the Ministry of Justice in Moscow, and appeals to the various courts in Moscow failed. Moreover, in April 2001, liquidation procedures were put in place to close down Salvation Army Corps and social programmes within Moscow, and on 11 September 2001 the Tagansk[iy] intermunicipal court ruled that the Moscow chapter was subject to liquidation on the basis of section 27 of the 1997 Federal Law. (It provides for the liquidation of the legal entity that did not re-register by the 31 December 2000 deadline.) 104. The co-rapporteurs are very surprised and puzzled by the decision to ban the operations of The Salvation Army in Moscow, and they would highly appreciate the clarification of this matter by the Russian authorities. In this respect, they refer to the Monitoring Committee’s call on Russia of 6 September 2001 to ensure that The Salvation Army enjoys the same rights as it has in other member States of the Council of Europe, including the right to be registered in Moscow. During their fact-finding visit in November 2001, the co-rapporteurs used every opportunity to stress the need for a solution, and the potential embarrassment this problem may cause for Russia.” 48. Resolution 1277 (2002) on the honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xiv. the Assembly regrets the problems of The Salvation Army and Jehovah’s Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end; ...” 49. Resolution 1278 (2002) on Russia’s Law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, in particular, the following: “1. The new Russian Law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian law – generally considered very liberal – on the same subject. The new law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities’ re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain. ... 5. Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at federal level. The Federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within the Ministry. The case of the Moscow branch of The Salvation Army deserves particular attention in this respect, and should lead to an internal disciplinary inquiry by the Federal Ministry of Justice into the workings of its Moscow department. The Moscow Department of Justice tried to close down this branch of The Salvation Army (despite federal registration), for allegedly failing to re-register by the law’s deadline. The Constitutional Court ruled in favour of The Salvation Army on 7 February 2002. 6. Therefore, the Assembly recommends to the Russian authorities that: i. the Law on religion be more uniformly applied throughout the Russian Federation, ending unjustified regional and local discrimination against certain religious communities and local officials’ preferential treatment of the Russian Orthodox Church, and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from the Russian Orthodox Church; ii. the Federal Ministry of Justice become more proactive in resolving disputes between its local/regional officials and religious organisations before disputes are brought before the courts, by taking remedial action within the Ministry in case of corruption and/or incorrect implementation of the Law on religion, thus rendering it unnecessary to take such cases to the courts; ...”
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train
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001-83278
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ENG
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RUS
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CHAMBER
| 2,007
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CASE OF KUKAYEV v. RUSSIA
| 3
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Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment);Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
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Peer Lorenzen
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7. The applicant was born in 1945 and lives in Grozny. 8. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9-61). A description of the documents submitted by the Government is contained in section B below (paragraphs 62-66). 9. The applicant is the father of Aslanbek Kukayev, born in 1976, who at the material time was an officer of the special police unit of the Chechen Department of the Interior (отряд милиции особого назначения при Управлении внутренних дел РФ по Чеченской Республике – “the Chechen OMON”) and lived in Grozny, together with his parents. 10. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. 11. The facts surrounding Aslanbek Kukayev's abduction are disputed by the parties. 12. The applicant did not witness his son's detention, and the following account is based on eyewitness statements submitted by him, including those of two police officers, Mr G. and Mr Dzh., and a civilian, Mr A. 13. On the morning of 26 November 2000 the applicant's son, along with another police officer, D., left home to report for duty at the headquarters of the Chechen OMON in the town of Gudermes. They were both wearing camouflage uniforms and had their OMON officers' identification cards. 14. At around 12 noon the applicant's son and D. were passing through Grozny central market in D.'s white VAZ 2106 Zhiguli car. At the same time federal servicemen were carrying out a special (“sweeping-up”) operation in the vicinity of the marketplace. According to Mr G.'s statement, the military personnel belonged to a “mobile detachment” (мобильный отряд) stationed in the central part of Grozny. 15. The servicemen blocked D.'s vehicle and then took Aslanbek Kukayev and D. away in the direction of the headquarters of the federal military detachment Don-100. Some time later the soldiers seized the Zhiguli car, which subsequently disappeared. The applicant submitted that the car had later been seen on several occasions at the Khankala federal military base. 16. At around 1 p.m. the applicant's son, D. and several other police officers of Chechen origin detained during the operation, including Mr Dzh., were put into a GAZ 66 truck with an emblem representing a rampant horse on its doors, which then drove off. According to Mr Dzh., the servicemen who apprehended them were hostile and offensive. 17. The truck having reached Ordzhonikidze Avenue in the centre of Grozny, the officer in charge ordered that Aslanbek Kukayev and D. be taken out of the truck. Mr Dzh. saw the applicant's son and D. being escorted by six federal servicemen towards the former Grozny Educational College building. The vehicle then drove on. 18. Several policemen of Chechen origin were detained during the “sweeping-up” operation at Grozny central market on 26 November 2000. Some of them were released later that day, including Mr Dzh. Aslanbek Kukayev and D. disappeared after being apprehended. 19. According to the applicant, on 27 November 2000 the central Russian television broadcaster announced that a number of members of illegal armed groups had been apprehended during a “sweeping-up” operation in the vicinity of Grozny central market. The applicant also enclosed information which he had obtained from the Internet site of Human Rights Watch to the effect that on 26 November 2000 the federal troops had carried out a “sweeping-up” operation at Grozny central market and that they had detained several people, some of them having subsequently disappeared. 20. The Government relied on a reply from the Prosecutor General's Office (Генеральная прокуратура РФ) to the effect that, on 26 November 2000, during daylight hours, “unidentified men wearing camouflage uniforms and armed with firearms” had abducted the applicant's son and several other persons near Grozny central market. The bodies of those abducted were subsequently found at various times in Grozny. 21. They also submitted, with reference to information provided by the Chechen Department of the Federal Security Service (Управление Федеральной службы безопасности по Чеченской Республике), that the federal forces had not conducted any special operations in the vicinity of Grozny central market on 26 or 27 November 2000. 22. According to the applicant, he learnt about his son's detention from his neighbour the next day. Immediately thereafter, he went to Gudermes, to the headquarters of the Chechen OMON, and enquired about his son. He was told that neither his son nor D. had reported for duty. 23. The applicant and his younger son also went to Grozny central market and enquired of those who had been there on 26 November 2000 about Aslanbek Kukayev. In particular, they questioned servicemen from the mobile detachment, showing Aslanbek Kukayev's photograph; however, the servicemen refused to talk to them. 24. The applicant further applied repeatedly to a number of State bodies, including prosecutors at various levels, the Grozny military commander's office (комендатура г. Грозного), the regional and federal departments of the Russian Ministry of the Interior, the Federal Security Service (Федеральная служба безопасности РФ – “the FSB”), the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the Russian President's Office (Администрация Президента РФ). In his letters to the authorities the applicant referred to the circumstances of his son's detention and asked for assistance and details of the investigation. In most cases he received formal responses informing him that his requests had been forwarded to various prosecutors. 25. On 13 December 2000 the Grozny prosecutor's office (прокуратура г. Грозного) commenced a criminal investigation into the disappearance of the applicant's son and D. under Article 126 § 2 of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The file was given the number 12332. 26. On 29 January 2001 the Grozny prosecutor's office joined the aforementioned criminal case with several other cases opened in connection with abductions near Grozny central market on 26 November 2000 and the subsequent disappearance of a number of persons, on the ground that all those offences had been committed by the same persons. The case file was assigned the number 12331. 27. On 30 January 2001 the Chechen Department of the FSB forwarded the applicant's letter to the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102). 28. On 13 February 2001 the Grozny prosecutor's office suspended the investigation in criminal case no. 12331 on account of the failure to identify those responsible. 29. On the same date the head of the special police unit at the Chechen Department of the Interior issued the applicant with a certificate confirming that Aslanbek Kukayev had been an officer of that unit since 24 August 2000 and that he had disappeared on 26 November 2000 in the vicinity of Grozny central market. 30. By a letter of 22 February 2001 the military prosecutor of military unit 20102 returned the applications by the mothers of Aslanbek Kukayev and D. to the Grozny prosecutor's office. The letter stated that the applications in question had been forwarded to the military prosecutor of military unit no. 20102 by mistake, since no involvement of military personnel in the alleged offence had been established. 31. On 18 April 2001 the Grozny prosecutor's office resumed the investigation in criminal case no. 12331. 32. It appears that at some point in 2001 a new mobile detachment replaced the one stationed in the central part of Grozny. 33. On 22 April 2001, during the inspection of the area for which they were responsible, the servicemen of the mobile detachment found two corpses bearing signs of having met a violent death in the basement of Grozny Educational College in Ordzhonikidze Avenue. The servicemen notified a district office of the Department of the Interior and the Grozny prosecutor's office. It appears that a forensic examination of the corpses was conducted later that day. 34. On 23 April 2001 the bodies were identified by relatives as those of Aslanbek Kukayev and D. On the same day the applicant buried his son. 35. According to the applicant, his son's body was found 50 metres away from the place where he had last been seen alive on 26 November 2000. The applicant further submitted that both on 26 November 2000 and during the period thereafter the area in question had been under the firm control of the federal mobile detachment. He also claimed that the area had been tightly secured by the federal forces, fenced with barbed wire and watchtowers, and inaccessible to civilians, and that even the police and officials of the prosecutor's office had been required to obtain special leave to have access to the area on 22 April 2001. The applicant submitted a hand-drawn map of the area. In the Government's submission, “it was not established during the investigation that the area where the dead bodies of the applicant's son and D. had been found had been secured and that there had been no free access there”. 36. On 3 May 2001 the Forensic Examinations Bureau of the Chechen Republic (Республиканское бюро судмедэкспертизы) issued a medical death certificate (врачебное свидетельство о смерти) in respect of Aslanbek Khamzatovich Kukayev, born in 1976. The document stated that the applicant's son had died on 26 November 2000 as a result of gunshot wounds. 37. On 1 June 2001 the civil registry office of the Leninskiy District of Grozny certified the death of the applicant's son. The date and the place of death were recorded as 26 November 2000, Grozny. 38. On 7 August 2001 a military expert medical commission of the Chechen Department of the Interior (военно-врачебная комиссия УВД МВД РФ по Чеченской Республике) issued a certificate stating that Aslanbek Kukayev, an officer of the special police unit of the Chechen Department of the Interior, had died on 26 November 2000 as a result of a “gunshot wound to the head and fracture of the cranial bones”. 39. On 10 August 2001 the commander of the Chechen OMON drew up a report on the result of the internal investigation into the death of their officer, Aslanbek Kukayev. The report stated that on 26 November 2000 Aslanbek Kukayev and D. had left for the Zavodskoy District of Grozny to perform an operational task and had gone missing during a special “sweeping-up” operation in the vicinity of Grozny central market. On 22 April 2001 their bodies, bearing signs of a violent death, had been found in the basement of one of the destroyed buildings in Ordzhonikidze Avenue. 40. According to the Government, at some point the applicant and his wife had received compensation in connection with the death of their son, a police officer on duty. Under domestic law such compensation was payable for the loss of a breadwinner and comprised for each of them insurance payments of 19,786.25 Russian roubles (RUB – approximately 580 euros (EUR)), a lump-sum payment of RUB 44,365.80 (approximately EUR 1,300) and a pension in the amount of RUB 1,078.22 (approximately EUR 30). 41. In a letter of 21 May 2001 the Grozny prosecutor's office informed the applicant, in reply to a query from him, that on 12 May 2001 the file in criminal case no. 12331 concerning Aslanbek Kukayev's disappearance and the subsequent discovery of his body had been sent to the military prosecutor of military unit no. 20102 for further investigation. 42. On 1 July 2001 the Grozny prosecutor's office informed the applicant that the criminal proceedings in case no. 12331 had been suspended on 28 May 2001 on the ground of failure to identify those responsible. 43. On 7 August 2001 the Russian President's Office forwarded the applicant's complaint to the Prosecutor General's Office. 44. In a letter of 21 August 2001 the Southern Federal Circuit Department of the Prosecutor General's Office (Управление Генеральной Прокуратуры РФ в Южном федеральном округе) informed the applicant that his complaints concerning the ineffective investigation into the abduction of his son had been forwarded to the prosecutor's office of the Chechen Republic (прокуратура Чеченской Республики). 45. On 24 August 2001 the Russian Presidential Commission on Rights and Freedoms (Комиссия по правам человека при Президенте РФ) forwarded the applicant's complaint concerning the ineffective investigation into the killing of his son to the Prosecutor General's Office for examination. The latter, in its turn, forwarded the complaint to the prosecutor's office of the Chechen Republic on 3 September 2001. 46. By a letter of 10 September 2001 the prosecutor's office of the Chechen Republic requested the Grozny prosecutor's office to send it the file in criminal case no. 12331 so as to enable it to investigate the applicant's complaints relating to the ineffective investigation into his son's death. 47. On 10 October 2001 the Russian Ministry of the Interior informed the applicant that his complaint had been sent to the prosecutor's office of the Chechen Republic for examination. 48. On the same date the prosecutor's office of the Chechen Republic forwarded case file no. 12331, comprising 222 pages, to the Grozny prosecutor's office for further investigation. The latter reopened the proceedings instituted in the above-mentioned criminal case on 15 October 2001 and then adjourned them a month later on the ground that it was impossible to identify the perpetrators. At some point the case file was referred to the prosecutor's office of the Zavodskoy District of Grozny (прокуратура Заводского района г. Грозного – “the Zavodskoy District prosecutor's office”). 49. On 15 November 2001 the prosecutor's office of the Chechen Republic referred the applicant's complaint to the Grozny prosecutor's office. 50. On 25 March 2002 the Grozny prosecutor's office informed the applicant that the criminal proceedings instituted in connection with the abduction and killing of his son had been suspended, as it was impossible to identify the alleged perpetrators, and that all possible steps to that effect had been taken. 51. It does not appear that any investigative activity took place between November 2001 and December 2005; the applicant's attempts to have the criminal proceedings resumed proved unsuccessful. 52. On 4 November 2005 the present application was communicated to the Russian Government. 53. On 16 December 2005 the Zavodskoy District Prosecutor's Office resumed the proceedings in criminal case no. 12331. 54. By a decision of 22 December 2005 the investigator in charge, referring to the fact that, during the examination of the materials in case no. 12331 concerning the abduction of the applicant's son and other persons, he had discovered that the bodies of the applicant's son and D., bearing signs of having met a violent death, had been found on 22 April 2001, ordered the institution of criminal proceedings in relation to the matter under Article 105 § 2 (a), (c) and (g) of the Russian Criminal Code (murder of two or more persons committed by a group and involving the act of kidnapping). 55. On 16 January 2006 the investigation in case no. 12331 was suspended, on the ground that it was impossible to identify those responsible. 56. On 1 March 2006 that decision was set aside and the criminal proceedings were reopened. The investigation was then stayed on 1 April and 21 August 2006 and resumed on 21 July 2006 and 16 January 2007 respectively. 57. According to the applicant, in March 2006 he was summoned to the Zavodskoy District Prosecutor's Office and informed that the investigation had been resumed. The applicant was not given access to the case file, let alone allowed to make copies of any documents. 58. Referring to the information provided by the Prosecutor General's Office, the Government submitted that, on 13 December 2000, the authorities had commenced an investigation into the abduction of the applicant's son and D. and subsequently, following the discovery of their bodies, into their murder and the theft of D.'s car. The investigation had been suspended and resumed on several occasions, but to date had failed to identify the alleged perpetrators. The investigation had been reopened most recently on 16 January 2007 and was being supervised by the Prosecutor General's Office. According to the Government, the applicant was duly informed about all decisions taken during the investigation. 59. The Government further submitted that the applicant had been questioned on 27 January and 30 April 2001 and on 20 December 2005 and that his wife, Aslanbek Kukayev's mother, had been questioned on 21 December 2005. According to the Government, the applicant had never made any statements concerning the fact that D.'s vehicle, which had disappeared on 26 November 2000, had later been seen at the Khankala federal military base. The applicant and his wife had been granted the status of victims on 20 and 21 December 2005 respectively and on 21 December 2005 had been recognised as civil parties seeking damages in the criminal proceedings. Relatives of other persons kidnapped on 26 November 2000 had also been questioned. 60. The investigating authorities had also questioned four persons, including Mr Dzh., all of whom, in the Government's words, “were apprehended by the federal forces on 26 November 2000 during a special operation and were later released”, as well as four police officers, including Mr G., and the servicemen who had found the bodies of the applicant's son and D. The Government did not specify on what date witness statements had been obtained and submitted that all the witnesses concerned had testified that they had no information regarding the perpetrators of the offences in question. 61. They stated next that on 23 April 2001 the corpses of Aslanbek Kukayev and D., found on 22 April 2001, had been examined by forensic medical experts, who had drawn up a report on 17 May 2001 stating that the death of the aforementioned two persons could have been caused by injuries sustained as a result of firearms shots. The Government stated that the investigating authorities had sent a number of queries to various State bodies on 19 December 2000, 3 January, 18 April, 8 May and 28 May 2001, and 18 December 2005. In their submission, on 3 March 2006 the investigators had sent a request to the Novosibirsk prosecutor's office to question the officers of the Novosibirsk special police unit who had served in Chechnya between 20 and 28 November 2001 (rather than 2000). It is unclear whether any reply was received to this query. On 20 March and 11 August 2006 the investigators had requested the town and district offices of the interior of the Chechen Republic to carry out a search so as to establish those responsible. None of the necessary information on the subject had been received, according to the Government, apart from the reply from the Chechen Department of the Federal Security Service to the effect that it had no information about the alleged perpetrators. According to the Government, the authorities had also undertaken other investigative measures; however, they did not specify what those measures had been. 62. In November 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 12331 opened into the abduction and murder of Aslanbek Kukayev. Relying on the information obtained from the Prosecutor General's Office, the Government replied that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. They, however, agreed to produce several documents, “disclosure of which did not contravene the requirements of Article 161”. In February 2006 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government submitted a few additional documents but refused to produce the entire investigation file for the aforementioned reasons. 63. On 23 October 2006 the application was declared admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation. In February 2007 the Government informed the Court of the latest dates on which the investigation had been suspended and reopened and produced several documents pertaining to the period after April 2006. Overall, the Government produced 67 documents running to 74 pages from the case file, which, as could be ascertained from the page numbering, comprised at least 235 pages. The documents included: (a) copies of the reports by the two servicemen who had found the bodies of the applicant's son and D. on 22 April 2001; (b) numerous procedural decisions suspending and reopening the investigation in case no. 12331; (c) a number of investigators' decisions taking up case no. 12331; (d) decisions granting the status of victims in case no. 12331 to relatives of some of the persons missing since 26 November 2000, but not to the applicant; (e) letters dated 17 December 2005 notifying the applicant and D.'s mother of the transfer of the case to the Zavodskoy District Prosecutor's Office; (f) numerous letters informing the applicant and relatives of other victims of the suspension and reopening of the criminal proceedings in case no. 12331. 64. The Government did not furnish the Court with any other documents from the case file. 65. The Government enclosed a number of letters from various higher courts in Russia, stating that the applicant had never lodged any complaints about the allegedly unlawful detention of his son or challenged in court any actions or omissions of the investigating or other law-enforcement authorities. 66. The Government also produced copies of domestic court decisions taken in unrelated sets of civil or criminal proceedings. These included three firstinstance judgments by which federal servicemen, privates or junior officers had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic; a first-instance judgment and appeal decision awarding compensation for damage to property inflicted by servicemen in Ingushetia; a first-instance judgment and appeal decision awarding damages to the first applicant in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005) in connection with the death of his relatives in Chechnya; and a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into a person's abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released. 67. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 68. Article 125 of the new Code provides that the decision of an investigator or prosecutor to dispense with criminal proceedings or to terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens' access to justice may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions. 69. Article 161 of the new Code enshrines the rule that data from the preliminary investigation may not be disclosed. Paragraph 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.
| 1
|
train
|
001-81822
|
ENG
|
LTU
|
CHAMBER
| 2,007
|
CASE OF BAŠKIENĖ v. LITHUANIA
| 4
|
Violation of Art. 6-1
| null |
6. The applicant was born in 1952 and lives in Šiauliai. 7. In accordance with an agreement on the division of their mutual property with her former husband, approved by a court decision on 27 September 1995, the applicant was entitled to a number of shares in two companies owned by the husband. 8. On 17 May 1996 the applicant brought a civil action, requesting that the value of the shares in one of the companies be awarded to her. 9. On 6 September 1996, during the hearing of the applicant’s case, the Šiauliai City District Court discovered some evidence of crime, allegedly committed by the director and the chief accountant of those companies. In particular, they were suspected of embezzlement and fraud (Articles 274 § 2 and 275 § 1 of the Criminal Code as then in force). The court considered that, in these circumstances: “it was not possible to assess the value of [the applicant’s] claims; therefore, her civil action should be referred for an examination in the framework of the criminal proceedings.” 10. On 10 October 1996 the applicant was afforded the status of a victim in those proceedings. 11. On 18 November 1996 she was granted the status of a civil claimant in the criminal proceedings. She was further granted the status of a civil claimant on 18 November 1996. 12. On 20 January 1997 several other criminal procedures against the director were joined in one set of proceedings. 13. On 25 June 1997 an expert examination was ordered. It was completed on 17 October 1997. 14. On an unspecified date the applicant requested the institution of further criminal proceedings against the director and other employees of the companies, alleging that they had falsified certificates as to the number and value of the shares which had belonged to her former husband. On 5 December 1997 the prosecutors dismissed her request. 15. On 13 January 1998 the bill of indictment against the director of the companies and three other co-accused was approved. The original charges of embezzlement and fraud were supplemented with accusations of forgery and negligent accountancy (respectively, Articles 207 § 1 and 322 of the Criminal Code as then in force). 16. On 17 February 1998 the accused were committed for trial. 17. Hearings scheduled for 7 April and 18 May 1998 were adjourned at the request of the defendants. 18. On 18 June 1998 the court ordered a further expert examination. It was completed on 29 December 1999. 19. On 27 March and 12 June 2000 the trial was adjourned due to the illness of the defendants. 20. Hearings scheduled for 6 and 7 September, 25 October, 27 November and 14 December 2000 and 23 January 2001 were partially adjourned because certain witnesses failed to appear before the court. The court questioned those witnesses present and ordered the police to bring the remaining witnesses to the next hearing. 21. On 21 February 2001 the hearing was adjourned due to the illness of the judge. 22. On 27 May 2001 the hearing was again adjourned due to the failure of certain witnesses to appear. 23. On 30 May 2001 the hearing was further adjourned since one of the defendants had failed to appear due to illness. 24. On 27 June 2001 another expert examination was ordered at the request of the prosecution. 25. In a letter to the prosecution of 4 October 2001, the Šiauliai City District Court noted that the proceedings had lasted an unduly long time due to deficiencies in the pre-trial investigation. 26. On 29 January 2002 the Šiauliai City District Court decided to exclude the applicant from the list of civil claimants. The applicant unsuccessfully challenged the decision, the courts ruling that domestic law did not provide her with a right of appeal. 27. On 18 February 2002 the Šiauliai City District Court convicted the defendants. 28. In a letter of 28 May 2002, the Supreme Court informed the applicant that she could appeal against the judgment of 18 February 2002. 29. On 1 July 2002 the applicant requested renewal of the time-limit to lodge an appeal against her exclusion from the list of civil claimants. 30. On 11 June 2002 the Šiauliai City District Court granted her request. It was noted that the courts had erred in deciding that the domestic law had precluded the applicant from appealing. 31. On 19 June 2002 the applicant lodged an appeal whereby she challenged the decision of 29 January 2002 and the judgment of 18 February 2002. 32. On 5 July 2002 the Šiauliai City District Court refused to admit the applicant’s appeal. The court noted that the applicant was not a participant in the trial, and therefore was not entitled to appeal against the judgment 18 February 2002. Moreover, the court found that the applicant had failed to comply with the time-limit for appeal without good reason. 33. On the same date the applicant challenged that decision. 34. On 25 July 2002 the Šiauliai Regional Court granted her appeal. The court renewed the time-limit for appeal against the judgment of 18 February 2002. It was noted, inter alia, that the courts had unduly restricted the applicant’s rights by refusing to accept her appeal. 35. On 2 August 2002 the Šiauliai Regional Court quashed the decision of 29 January 2002 whereby the applicant had been deprived of the status of civil claimant. It was noted that the impugned decision had breached the applicant’s rights. The judgment of 18 February 2002 was also quashed, and the case was remitted for a fresh examination. 36. A hearing scheduled for 8 October 2002 was adjourned as one of the defendants, certain witnesses and defence counsel had failed to appear. 37. On 11 November 2002 the trial hearing was further adjourned due to the failure to summon one of the defendants. 38. Following the applicant’s hierarchical complaint about the actions of the Šiauliai City District Court, an inquiry was conducted by the Šiauliai Regional Court. In a letter of 27 November 2002, the latter informed the applicant that the Šiauliai City District Court had not undertaken all the necessary measures to ensure a speedy trial. 39. On 3 January 2003 the Šiauliai City District Court convicted the defendants of forgery and negligent bookkeeping, and acquitted them of the original charges of embezzlement and fraud. 40. By the same judgment, the trial court decided to leave the applicant’s civil claims “without examination”. The court noted that the defendants had neither been accused of nor tried for offences which could have caused damage to the applicant’s interests as a shareholder. It further reasoned that, as a shareholder, the applicant had no entitlement to any part of the property of a joint-stock company. Only if the company had been liquidated could she claim a part of its property, together with other shareholders. It noted that the applicant had a possibility to pursue her claims by way of a separate civil action. The court concluded that “the applicant should not be deemed a victim or civil claimant in this case”. 41. The applicant appealed, complaining that she had incurred significant pecuniary and non-pecuniary damage, particularly as the examination of the case had taken almost seven years. She reiterated that the criminal case had been instituted on the basis of her civil action, and that she had been granted the status of victim and civil claimant. 42. On 12 March 2003 the Šiauliai Regional Court dismissed the applicant’s appeal. It noted: “The victim, Baškienė, took part in the examination of the case throughout the proceedings; she was entitled [inter alia] to submit a civil claim and the evidence in order to substantiate it. However ... the submission of a civil claim does not presuppose the obligation on the part of the court to satisfy it. ... The first-instance court has reasonably established that the victim’s right to part of the company’s property would only arise in accordance with company law, and has correctly noted that [the applicant] could defend her property rights in accordance with the civil procedure. ... When adopting the ... judgment, the court must also decide on the civil claim. Civil claims can only be granted if [the defendants are convicted], and it is established that the civil claimant had suffered pecuniary damage due to the criminal acts in question; finally, there must be a causal link between the criminal actions and the damage incurred. ... The defendants were not tried for any offence which could have caused damage to [the applicant]. ... As to [the applicant’s] property rights, they are not the object of this criminal case. It is the object of civil law and has only to be decided in accordance with the civil proceedings.” 43. The court further noted that the examination of the case had been unjustifiably long, in breach of Article 18 of the Criminal Code, the Constitution and the European Convention of Human Rights. The court concluded however that, despite the acknowledgement of the breach, “it was not possible to remedy this flaw at the current stage of the proceedings”. On the same date, the judgment of 3 January 2003 entered into force. 44. The applicant lodged a cassation appeal, complaining, inter alia, that the courts had failed to bring additional charges of forgery against the defendants, which would have allowed their conviction and the satisfaction of her civil claims. She also alleged that the length of the proceedings had been excessive. 45. On 7 October 2003 the Supreme Court dismissed the applicant’s cassation appeal. The Supreme Court established that the prosecution had rightly refused to bring additional charges against the defendants, as they had found no evidence of the crimes alleged by the applicant. 46. With respect to the applicant’s civil claims, the Supreme Court noted that her entitlement to a certain number of shares had not been questioned. It also found that, in the share certificates issued by the defendants, the number and value of shares belonging to the applicant had been wrongly calculated and did not correspond to the data appearing in the company’s statute. The Supreme Court concluded, however, that this error did not restrict the applicant’s rights as a shareholder; nor did it cause her any pecuniary or non-pecuniary damage. The Supreme Court further concluded that, in such circumstances, there had been no basis to grant the applicant the status of a civil claimant. 47. Finally, the Supreme Court endorsed the findings of the appellate court as to the length of the proceedings. It emphasised, however, that it was not reasonable to consider that the excessive length was an “essential violation” of the Code of Criminal Procedure since, in such a case, the decisions of the lower courts would have to be quashed, and this would have only further prolonged the examination of the case. 48. The applicant did not bring a new civil action. “The person whose constitutional rights or freedoms are violated shall have the right to apply to court.” 53. The ruling of the Constitutional Court of 19 August 2006 stipulates: “...by virtue of the Constitution, a person has the right to claim compensation for damage caused by the unlawful actions of State institutions and agents, even if such compensation is not foreseen by law; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the Constitution ... as well as the general principles of law, while being guided inter alia by the principle of reasonableness, etc”.
| 1
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train
|
001-114506
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,012
|
ÖZSÜREN v. TURKEY
| 4
|
Inadmissible
|
András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre
|
1. The applicants, whose particulars are set out in the appendix, are Turkish nationals. They are the parents and siblings of Mr Muhittin Özsüren who disappeared in 1998. The applicants were represented before the Court by Mr Öztekin Erdönmez, a lawyer practising in Alanya. 2. and as they appear from the documents submitted by them, may be summarised as follows. 3. On 29 August 1998 Muhittin Özsüren was performing his military service in the town of Gelibolu when he went missing. No information was given to the family about his disappearance by the military authorities and the family became aware of it when his father Yaşar Özsüren – who is the first applicant – tried to contact him. 4. On 20 November 1998 Yaşar Özsüren petitioned the Gelibolu prosecutor and asked the prosecutor to find his son. On 30 November 1998 the prosecutor concluded that Muhittin Özsüren had not disappeared but gone absent without leave (AWOL), and closed the investigation. The prosecutor’s decision was communicated to Mr Özsüren on 17 December 1998. 5. In the meantime, and on subsequent dates, steps were taken by the military authorities to find Muhittin Özsüren who, in their opinion, had gone AWOL. 6. On 15 December 2004 the first applicant, Yaşar Özsüren, sent a letter to the commander of the Turkish Land Forces, and asked for his son to be found. Pursuant to Mr Özsüren’s request an administrative investigation was conducted at the military barracks where Muhittin Özsüren disappeared, but that investigation did not yield any results. The investigators recommended that military judges instigate a judicial investigation. 7. In 2005 the military authorities instituted a criminal case against Muhittin Özsüren for having gone AWOL, and issued a warrant for his arrest. 8. Nothing has been heard from Muhittin Özsüren since his disappearance and the criminal proceedings against him are still pending in absentia.
| 0
|
train
|
001-104730
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,011
|
VIEHBOCK v. AUSTRIA
| 4
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
|
The applicant, Mr Peter Viehböck, is an Austrian national who was born in 1968 and lives in St Georgen. He was represented before the Court by Mr A. Piermayr, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was in the area of Fügen, Tyrol, from 16 to 17 December 1995. He went to a discotheque in the evening and said he had left between 1.30 a.m. and 2 a.m. When he left the discotheque, an unknown person hit him in the face and he fell to the ground. The applicant took a taxi and went back to his hotel, where he was sharing a room with two friends. On 17 December 1995 Mr P reported to the police that at about 5 a.m. an unknown person had had an argument with him and kicked his car, which was parked in front of the discotheque, and damaged it. The following day the applicant returned to Upper Austria by train. He was apprehended by the police, on account of his visible injuries, on suspicion of having participated in a fight. The police took two photographs of him. The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him, as he thought it would not be possible to find the person. On 22 December 1995 T, a barkeeper in the discotheque and a friend of P, was heard as a witness to the incident in which P’s car had been damaged. He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car. On 16 January 1996 T was shown the photos of the applicant taken by the police. He said it was the person who had had the argument with P. On 27 January 1996 P was also shown the same photos and stated that the applicant was the person who had kicked his car. On 9 February 1996 an official notice of a criminal act, apparently together with a sheet of the applicant’s personal data, was sent to the District Public Prosecutor, who filed an indictment (Antrag auf Bestrafung) on 16 February 1996. On 19 April 1996 a provisional penal order (Strafverfügung) was issued by the Zell am Ziller District Court (“the District Court”). The applicant was considered guilty of having wilfully damaged a car on 17 December 1995. He was sentenced to a fine totalling 2,500 Austrian schillings (approximately 180 euros (EUR)), suspended on probation. According to the law, a provisional penal order had to be served personally on the addressee. The first attempt to serve the provisional penal order on the applicant failed. Although the applicant had a registered address in N between 3 October 1995 and 3 October 1996, the provisional penal order was returned to the District Court with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded. On 9 May 1996 the District Court found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant. The District Court received a letter from the local police station saying that the applicant did not live anywhere in the area. By a letter dated 25 October 1996, the District Authority in Freistadt, Upper Austria, asked the District Public Prosecutor about the outcome of the case. The District Court replied on 4 November 1996 that a provisional penal order had been issued but could not be served on the applicant and had thus not become final. On 6 June 2002, the District Court renewed the request to the police to locate the applicant. By a letter of 12 June 2002, the Strass im Zillertal police station informed the court that the accused’s personal data had been entered in the Electronic Criminal Police Information System and that a search in the data station had been ordered to find out the applicant’s place of abode. By a letter dated 17 May 2004 the Grieskirchen District Authority in Upper Austria notified the District Court of the applicant’s registered address in W and stated that the applicant had been registered at that address since 2 December 1998. On 28 May 2004 the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within two weeks of service, it would become void and a regular trial would be held. The applicant lodged objections on 2 June 2004. On 3 September 2004 the file was transmitted to the District Public Prosecutor at the Zell am Ziller District Court for her observations regarding a preliminary settlement (Diversion). The trial before the District Court started on 4 January 2005. P was heard as a witness and the court asked him whether the applicant had kicked his car in December 1995. P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on 27 January 1996 he had been certain that it had been the applicant who had kicked his car. The applicant asked for evidence to be heard from the two friends with whom he had shared the hotel room. As they lived in Germany, the District Court adjourned the hearing and on 17 January 2005 issued letters rogatory, asking the German authorities to hear the witnesses. The public prosecution office in Munich sent back the witness statements on 17 February 2005. The witnesses had stated that they could not remember the applicant having returned to the hotel room at 2 a.m. On 31 March 2005 the trial continued. The applicant was not represented by counsel. The judge had the witness statements as submitted by the public prosecution office in Munich read out. Relying on the witness statements of P and the applicant’s friends, the barkeeper’s statement and the notification from the Zillertal police station, the District Court found the applicant guilty of having damaged P’s car on 17 December 1995 and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car. On 21 April 2005 the judgment was served on the applicant’s counsel. An appeal on points of law and fact, as well as against sentence, and an appeal against the obligation to pay damages (Berufung wegen Nichtigkeit, Schuld und Strafe und Berufung gegen den Privatbeteiligtenzuspruch) was lodged on 19 May 2005. On 2 November 2005 the Innsbruck Regional Court set aside the judgment on grounds of nullity as the District Court had failed to obtain the applicant’s consent to have the witness statements read out. On 21 December 2005 a new trial was held. One of the applicant’s friends, who had been named as a witness, did not appear before the court. The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred. He also confirmed that when he had been heard by the German authorities after the Austrian court had issued the letters rogatory, he had told the truth. The barkeeper T was also heard as a witness. He stated that he did not remember what he had told the police when he gave his statements on 22 December 1995 and 16 January 1996, but was certain that he had told the truth. After an adjournment, the trial continued on 18 May 2006. As the judge had changed, the trial started afresh. T, P and the applicant’s friend who had not appeared before the court on 21 December 2005 were heard as witnesses and, in essence, upheld their previous statements. The District Court, relying on T’s and P’s statements, again found the applicant guilty and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, and ordered him to pay the costs of the trial. P was ordered to claim damages for the car in the civil courts. The applicant appealed on points of law and fact, as well as against sentence, on 11 July 2006. On 15 December 2006 the Innsbruck Regional Court upheld the judgment. The decision was served on applicant’s counsel on 22 February 2007.
| 0
|
train
|
001-81779
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF HALIS TEKIN v. TURKEY
| 4
|
Violation of Art. 6-1;No violation of Art. 6-1
|
David Thór Björgvinsson
|
5. The applicant was born in 1971 and lives in Batman. 6. On 22 May 1994 the applicant was arrested in the course of an armed clash between members of the security forces and terrorist militants. 7. On 27 May 1994 the applicant's statements were taken by police officers. 8. On 30 May 1994 he was brought before the public prosecutor at the Diyarbakır State Security Court. The public prosecutor questioned him in relation to his involvement in terrorist acts. On the same day, the applicant was brought before a single judge of the Diyarbakır State Security Court who ordered his detention on remand. 9. On 13 June 1994 the Diyarbakır Public Prosecutor filed a bill of indictment charging the applicant with carrying out activities for the purpose of bringing about the secession of part of the national territory. The charges were brought under Article 125 of the now defunct Criminal Code. 10. On 20 January 1995 the Diyarbakır State Security Court held a hearing in the presence of a military judge. The applicant admitted that he was a member of an illegal organisation, namely the ARGK. 11. At the hearing on 30 January 1995 before the Diyarbakır State Security Court, the applicant stated that he was a “guerrilla” of the ARGK and apologised to his people and party for not being worthy of the organisation since he had failed to carry out the acts that he had undertaken. He however denied the veracity of the statements which he had given to the police officers. 12. Between 3 April 1995 and 30 October 1995 the Diyarbakır State Security Court held four hearings and issued decisions to the effect that the case-files concerning other criminal proceedings instituted against the applicant should be obtained from the other courts. 13. On 8 December 1995 the Diyarbakır State Security Court decided to join two cases concerning different accusations against the applicant. It further decided to wait for the arrival of the case-files. The number of accused who were tried together with the applicant attained thirteen in total. 14. Between 24 January 1996 and 14 May 1997 the Diyarbakır State Security Court held eight hearings and postponed each of them with a view to remedying certain procedural shortcomings in respect of the applicant's co-accused. 15. The applicant attended the hearing of 3 July 1997 and claimed that he was under pressure in the prison and that he was hindered from appearing before the court. He did not specify who prevented him from appearing before the court. The court again postponed the hearing with a view to determining the address of one of the applicant's co-accused. 16. The applicant and his co-accused did not attend the hearing of 14 August 1997. 17. The Diyarbakır State Security Court postponed the hearings of 22 October 1997, 10 December 1997, 12 February 1998 and 19 March 1998 pending the arrest of one of the applicant's co-accused. The court also asked the public prosecutor to submit his observations on the merits. 18. On 21 May 1998 the public prosecutor submitted his observations on the merits of the case and sought the conviction of the applicant for the offence under Article 125 of the former Criminal Code. The applicant asked for time to prepare his defence. 19. The applicant did not attend the hearings of 16 July 1998, 10 September 1998 and 5 November 1998. At the hearing held on the latter date, the court decided to inform the accused that their defence submissions would be assumed to have been given if they did not attend the next hearing scheduled for 24 December 1998. 20. The applicant did not attend the hearing of 24 December 1998 and submitted a declaration on behalf of himself and all his co-accused that they would not attend the hearing. The court decided to request the prison authorities to ensure the attendance of the applicant and his co-accused at the hearing of 4 March 1999. 21. The applicant refused to attend the hearings of 4 March 1999, 24 April 1999, 17 June 1999 and 29 July 1999 in protest against the arrest of Abdullah Öcalan. 22. Meanwhile, on 18 June 1999 the Grand National Assembly amended Article 143 of the Constitution and excluded military members from the state security courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the bench of the Diyarbakır State Security Court hearing the applicant's case was replaced by a civilian judge. 23. The applicant attended the hearing held on 23 September 1999 and read out his defence submissions. The court informed the accused that the final judgment would be delivered on 11 November 1999 even if they refused to attend the hearing. 24. On 11 November 1999 the Diyarbakır State Security Court composed of three civilian judges, convicted the applicant as charged and sentenced him to death under Article 125 of the Criminal Code. Taking into account the applicant's behaviour during the trial, the death penalty was commuted to a life sentence. The applicant appealed. 25. On 2 May 2000 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court. 26. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), Öcalan v. Turkey [GC], no. 46221/99, §§ 5254, ECHR 2005-...). 27. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, state security courts were abolished.
| 1
|
train
|
001-109130
|
ENG
|
UKR
|
CHAMBER
| 2,012
|
CASE OF SAVIN v. UKRAINE
| 3
|
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary and non-pecuniary damage - award
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
|
6. The applicant was born in 1972 and lives in Kharkiv, Ukraine. 7. As submitted by the applicant and established by the domestic courts (see paragraphs 22 and 28 below), in the afternoon of 18 October 1999 the applicant attended at the Dzerzhynskyy District Police Station, at the investigator’s summons, as a witness in a fraud-related criminal investigation. At about 7 p.m., officer K. questioned him. Not being satisfied by the applicant’s explanations and seeking to obtain his confession to the fraud, K. tied the applicant’s hands behind his back with a belt, made him sit on a chair and punched him at least eight or ten times in the head. Thereafter K. took the applicant into the corridor, threw him face down against the floor and raised his tied arms behind his back seven or eight times. K. also kicked the applicant several times in the ribs. 8. According to K.’s report to the police unit on duty, later found to be knowingly false (see paragraph 22 below), he had apprehended the applicant in the street for swearing in public. As a result, an administrative offence report was drawn up and the applicant was arrested. According to the police records, he was released at 8.40 p.m. on 18 October 1999. As it was later established, the applicant was in fact held in the room for detainees until 9 a.m. on 19 October 1999. 9. In addition to the aforementioned account established by the court, the applicant alleged that two other police officers, under the leadership of K., had also beaten him. 10. According to the medical documentation, the applicant had been in good health before the aforementioned events of October 1999. 11. On 21 October 1999 he was examined by a doctor who documented the following injuries: multiple bruises on the face, scalp, left ear, neck and chest, as well as a closed head injury with concussion of the left frontal lobe and an intracerebral haematoma. The doctor concluded that these injuries had been caused by blunt objects and could have dated from 18 or 19 October 1999. 12. On the same date, 21 October 1999, the applicant was admitted to a neurological hospital, where he underwent treatment until 23 November 1999. 13. The head injury sustained by the applicant in October 1999 had negative consequences for his health. As a result, he was hospitalised many times during the years to follow. In particular, he underwent in-patient treatment on that account during the following periods: from 17 January to 7 February 2000, from 9 to 30 January 2001, from 18 April to 6 May 2002, from 12 to 22 November 2002, from 11 to 25 April 2003, and during subsequent unspecified periods. 14. In 2002 the applicant was recognised as falling into the third category of disability (the mildest) on account of the residual effects of the head injury and post-traumatic encephalopathy. 15. From 2004 onwards his condition was classified as a disability of the second category (more serious), as the post-traumatic encephalopathy had worsened. 16. From October 1999 eight forensic medical expert examinations were carried out with a view to verifying the applicant’s ill-treatment allegation (see paragraph 17 below). According to the examination reports the applicant had sustained a craniocerebral injury with subarachnoid haemorrhage, brain concussion, and numerous haematomas on various parts of the head, neck, back and chest. All the examinations found the applicant’s account as to the time and origin of his injuries to be plausible. While originally the injuries were classified as grievous, the experts later reclassified them as being of medium severity. Their consequences were described as follows: lasting health deterioration, namely, a cerebral cicatrix, liquor hypertension syndrome, right-side sensory and motor impairment, and a convulsive disorder, which all together had led to the loss by the applicant of thirty per cent of his general working capacity and fifty per cent of his professional working capacity. The last forensic medical examination, which was conducted between 5 May and 14 June 2007, established that the applicant’s disability was a direct result of the injuries sustained by him in October 1999. 17. From 19 October 1999 the applicant lodged numerous complaints with prosecution authorities concerning unlawful detention and torture by the police. 18. During the period from 1999 to 2008 the prosecutors refused on six occasions to institute criminal proceedings against the police officers, having discerned no indication of a crime in their actions. All these decisions were subsequently quashed by higher-level prosecution authorities as premature, unlawful and based on a perfunctory investigation not aimed at establishing the truth. 19. Meanwhile, on 20 December 1999, the Dzerzhynskyy District Prosecutor’s Office opened a criminal investigation in respect of infliction of grievous bodily injuries on the applicant by unknown persons. Subsequently, on 2 December 2002, the charge was re-classified as “infliction of injuries of medium severity”. The investigation was stayed several times for failure to identify the offenders. 20. On 27 March 2006 the Ordzhonikidze District Prosecutor’s Office (hereafter – “the Ordzhonikidze Prosecutor”) applied to the Dzerzhynskyy District Court (“the Dzerzhynskyy Court”) for discontinuation of the proceedings regarding the infliction of bodily injuries of medium severity on the applicant by unknown persons as being time-barred. 21. On 6 July 2006 the Dzerzhynskyy Court rejected that application as unfounded and premature. It noted that the investigation had failed to comply on many occasions with the instructions of the Kharkiv Regional Prosecutor’s Office and the General Prosecutor’s Office. 22. On 30 July 2008 the Ordzhonikidzhe Prosecutor instituted criminal proceedings against K. under Article 365 § 2 of the Criminal Code on suspicion of abuse of power, associated with violence and degrading treatment. That investigation established the facts as they are summarised in paragraphs 7 and 8 above. 23. On 23 January 2009 K. was formally charged, and the applicant was assigned victim status. 24. On 27 January 2009 the applicant brought a civil claim within the criminal proceedings seeking compensation for pecuniary and nonpecuniary damage. 25. On 29 January 2009 the Ordzhonikidzhe Prosecutor refused to open a criminal case against the other two police officers in respect of the applicant’s ill-treatment, having discerned nothing criminal in their actions. 26. On 19 February 2009 the case was referred to the Ordzhonikidzhe District Court (“the Ordzhonikidzhe Court”) for trial. 27. The court adjourned its hearings several times because K. was receiving medical treatment for excessive hypertension, proctologic problems, and an accidental fall. 28. On 2 March 2010 the Ordzhonikidzhe Court upheld the investigation’s findings and found K. guilty as charged. It held that K. had breached the applicant’s rights under Articles 28 and 29 of the Constitution, as well as Article 365 § 2 of the Criminal Code. The court, however, released K. from criminal liability as the statutory limitation period of ten years had expired. 29. On 9 March 2010 the Ordzhonikidzhe Court modified the abovementioned ruling in order to specify that K. was released from both criminal liability and punishment. It also decided to leave the applicant’s civil claim without examination. 30. Both K. and the public prosecutor appealed. K. submitted that the criminal proceedings against him should be terminated for lack of evidence of his guilt. The public prosecutor emphasised that K. had committed a serious premeditated crime in the course of his professional activities, thus undermining the authority of the law-enforcement bodies and the State. He noted that K. had never admitted his guilt, had not drawn any conclusions, had not compensated the applicant for any pecuniary or non-pecuniary damage, and showed no remorse about what he had done. The public prosecutor therefore considered that a guilty verdict would be the right outcome to this case. 31. On 1 July 2010 the Kharkiv Regional Court of Appeal rejected both appeals. 32. At the time of the events of October 1999 K. held the post of detective officer («оперуповноважений») in the Dzerzhynskyy District Police Department. 33. On 15 June 2000 he was promoted to the post of senior detective officer («старший оперуповноважений»). 34. At a later unspecified date K. was promoted to the post of Deputy Chief of the Zolochevskyy District Police Department. 35. On 23 January 2009, after the formal charges were brought against K., the Ordzhonikidze Prosecutor suspended him from his duties. 36. On 2 March 2010 the Ordzhonikidzhe Court issued, in addition to the aforementioned judgment (see paragraph 28 above), a special ruling by which it informed the Kharkiv Regional Police Department of the termination of the proceedings against K. as being time-barred and indicated that he should be restored to his post within the law-enforcement authorities. 37. K. apparently continues to work in the police force. 38. Articles 28 and 29 of the Constitution of Ukraine are cited in Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 121, 21 April 2011. 39. Article 166 of the Criminal Code (1960) provided for three to eight years’ imprisonment with a prohibition on holding certain office or carrying out certain activities for a period of up to five years as punishment for abuse of power, associated with violence or degrading treatment of the victim. 40. Following the entry into force of the new Criminal Code in 2001, its Article 365 § 2 provided for the same punishment for this offence, except that the bar from office was limited to three years. 41. Articles 1 and 2 of the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”)” (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005). 42. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by inclusion of the following point: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”. 43. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 September 2009 [CPT/Inf (2011) 29] read as follows: “14. ... the frequency and consistency of the allegations received by the CPT’s delegation during the 2009 visit suggest that methods of severe ill-treatment/torture continue to be used with impunity by Internal Affairs officers. It is clear that continued determined action, bringing together in a joint effort all relevant State agencies, is needed to combat this phenomenon. ... 16. ... The CPT recommends that a firm message of “zero tolerance” of ill-treatment continue to be delivered at regular intervals to all Internal Affairs staff. It should be made clear that the perpetrators of ill-treatment and those condoning or encouraging such acts will be subject to severe sanctions.” 44. Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, which were adopted on 30 March 2011, provide for the following among the general measures for the prevention of impunity: “... 7. States should ... establish mechanisms to ensure the integrity and accountability of their agents. States should remove from office individuals who have been found, by a competent authority, to be responsible for serious human rights violations or for furthering or tolerating impunity, or adopt other appropriate disciplinary measures. ...”
| 1
|
train
|
001-77675
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,006
|
BLEYOVA v. SLOVAKIA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mrs Oľga Bleyová, is a Slovakian national who was born in 1930 and lives in Bratislava. She is represented before the Court by Mr R. Bockanič, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was married to Mr B. who was a member of the Bratislava III Housing Cooperative (bytové družstvo) which assigned a flat to him. At that time the applicant was not a member of the cooperative. The couple lived in the flat under a lease and, by operation of law, they had the right of joint use (právo spoločného užívania). In 1974 the marriage was dissolved and Mr B. moved out of the flat. In 1975 the Bratislava Regional Court (then Mestský súd, at present Krajský súd) cancelled the applicant’s and her former husband’s right of joint use of the flat and ruled that the sole legal tenant was Mr B. The applicant was ordered to move out within 15 days of the date when a substitute dwelling was provided to her. Until then, the applicant would have an absolute right to stay in the flat (právo bývania). As no substitute dwelling has ever been provided to her, the applicant continues to enjoy her right to stay in the flat. In 1985 the applicant became a so called “non-resident member” of the cooperative. In 1992 she transferred the membership to a third person. In 1993 she again became a non-resident member. In February 1993 the cooperative’s board passed a decision excluding Mr B. from its membership for breach of duties. It was noted that he had not been using the flat since 1974. Mr B. appealed against this decision, but his appeal has never been formally determined. On 30 March 1993 the board annulled its decision of February 1993. The validity of the annulment is disputed. It was investigated following the applicant’s criminal complaint, but no charges were ever brought. The matter was considered to be of a private-law nature and, as such, fell to be determined by the ordinary courts. No criminal case to answer was detected. In 1994 Mr B. petitioned for the applicant’s eviction on the basis of the 1975 judgment. On 2 August 1995 the Bratislava III District Court (then Obvodný súd, at present Okresný súd) dismissed the petition holding that Mr B.’s rights under that judgment were statute-barred. In August 1995 the applicant invited the cooperative to sell her the flat under special legislation - Flats and Non-residential Premises Ownership Act (Law no. 182/1993 Coll., as amended - “the 1993 Act”) - which provided for the transfer of ownership of flats to tenants for a regulated price. She did not receive an answer. In May 1996 the cooperative sold the flat to Mr B. under the 1993 Act. The sale was registered in the Land Registry and Mr B. became the legal owner of the flat. The applicant subsequently challenged the validity of the sale in the ordinary courts. The course and outcome of her action is a separate subject-matter of the present application and is described in detail below. On 11 September 1997, following numerous arguments and disturbances, Mr B. and his lawyer, Mrs N., arranged for a locksmith and a removal service to enter the flat forcibly and to start removing the applicant’s belongings from it. The police arrived after a call from the applicant and the operation was halted. The applicant filed a criminal complaint about the incident and joined a claim for damages to it. On her complaint, Mr B. and Mrs N. were indicted to stand trial on a charge of having organised a breaking and entry within the meaning of Article 238 of the Criminal Code. They were first found guilty in summary proceedings, but the conviction was quashed on appeal. They were then acquitted in ordinary proceedings, but the acquittal was quashed on appeal. The proceedings are still pending. On 20 January 1998 the applicant lodged a separate action for damages resulting from the incident of 11 September 1997. It is still pending. Mr B. again sought the applicant’s eviction by way of a court action. It was stayed by the District Court on 16 August 2000 pending the outcome of the proceedings concerning the validity of the transfer of the flat to Mr. B. The action for eviction is still pending. In 2001 Mr B. was registered in the Registry of Inhabitants as residing permanently in the flat. The registration was investigated following the applicant’s criminal complaint, but no charges were ever brought. The matter was found to be entirely of a private-law nature and, as such, fell within the jurisdiction of the ordinary courts. No criminal case to answer was detected. On 8 August 2005 the applicant brought an action in the Bratislava III District Court seeking an injunction to restrain Mr B. from disturbing her peaceful enjoyment of the flat. At the same time she sought an interim injunction preventing him from entering the flat. On 16 January 2006 the matter was transmitted to the Bratislava I District Court, which had the territorial jurisdiction to entertain it. It is still pending there. On 19 June 1997 the applicant brought an action against the cooperative in the Bratislava I District Court seeking a judicial ruling declaring the contract of sale of 1996 void on grounds of illegality in that Mr B. had previously been deprived of his membership of the cooperative and, as such, no longer qualified to have the flat transferred to him under the 1993 Act. On 1 July 1997 the Bratislava I District Court transmitted the action to the Bratislava III District Court, which had territorial jurisdiction. On 27 August 1997 the Bratislava III District Court invited the defendant to submit observations in reply and the applicant to pay the court fee, which she did on 4 September 1997. On 16 February and 29 April 1998 the District Court held hearings. On 15 June 1998 the District Court held another hearing following which, on the same day, it dismissed the action as unfounded. On 10 August 1998 the applicant lodged an appeal. On the District Court’s request, on 7 October and 26 November 1998, respectively, the applicant corrected her appeal and paid the court fee. On 4 February 1999 the applicant supplemented her appeal. On 7 April 1999 the Regional Court held a hearing. It had to be adjourned as the applicant had challenged the president of the Regional Court’s chamber on grounds of bias. On 14 April 1999 the applicant supplemented the reasons for the challenge. On 19 August 1999 the Supreme Court (Najvyšší súd) dismissed the challenge as unfounded. On 30 September 1999 the Regional Court quashed the judgment of 15 June 1998 for procedural shortcomings and remitted the matter to the District Court for reexamination. The court observed inter alia that the action should have been directed against both parties to the contract. On 25 November 1999 the District Court invited the applicant’s lawyer to correct the action by identifying the defendants in line with the judgment of 30 September 1999. On 6 December 1999 the lawyer informed the District Court that on 30 November 1999 the applicant had withdrawn his power of attorney. On 24 February 2000 the District Court forwarded the invitation to correct the action directly to the applicant, who responded on 6 March 2000. On 1 June 2000, on the applicant’s motion, the District Court admitted Mr B. to the proceedings as the second defendant in the action. In their submissions to the District Court filed in September and November 2000, respectively, the cooperative and its former in-house lawyer conceded that the re-admission of Mr B. as a member in 1993 had been contrary to law and to the statute of the cooperative. They also admitted that there had been shortcomings in the transfer of the flat to him and expressed doubts as to the accuracy of the internal records concerning his re-admission. Between 18 September and 21 December 2000 the District Court held 3 hearings. The hearing called for 29 January 2001 was adjourned due to the absence of the applicant, her lawyer and a witness. It was also noted that, four days previously, the applicant had challenged the District Court judge dealing with the case for bias. The applicant completed the challenge by submitting new information and documents on 30 January and 19 February 2001. On 30 April 2001 the Regional Court dismissed the challenge as unsubstantiated. A hearing held before the District Court on 18 July 2001 was adjourned until 12 December 2001 and again until 25 February 2002. On 8 April 2002 the District Court held a hearing following which, on the same day, it dismissed the action. It concluded that the applicant did not have a “pressing legal interest” in obtaining the ruling sought, which was a conditio sine qua non under Article 80 (c) of the Code of Civil Procedure for the ruling to be made. Her legal status as regards the flat was defined by the judgment of 1975 under which she had an absolute right to stay in the flat until alternative accommodation had been provided to her. The contract of 1996 did not concern her directly and its validity had no effect on her own legal position. The applicant appealed against this judgment. On 19 June 2003, following a hearing of the appeal on the same day, the Regional Court upheld the judgment of 8 April 2002, concurring fully with the District Court’s findings and conclusions. The judgment became final and binding on 3 September 2003. In September 2003 the applicant requested that the Prosecutor General exercise his discretionary power and lodge an extraordinary appeal on points of law (mimoriadne dovolanie) on her behalf against the judgments of 2 April 2002 and 19 June 2003. She argued that those judgments were legally wrong and violated her right to respect for her private life and home. On 13 May 2004 the Prosecutor General acceded to the applicant’s request and lodged the appeal. He maintained that the applicant did have a “pressing legal interest” in having the action determined as she had been living in the flat for 43 years, she was a member of the cooperative and had sought to obtain the flat under the 1993 Act, and that Mr B. had been taking various illegal and unacceptable measures to have her evicted from it. In contrast, Mr B. had vacated the flat decades ago, his rights under the judgment of 1975 were statuebarred, he had been excluded from the cooperative, his readmission to it was flawed and he was not eligible to have the flat transferred to him under the 1993 Act. The Prosecutor General maintained that the contract of sale of 1996 was illegal and should be declared void. On 26 October 2004 the Supreme Court dismissed the extraordinary appeal. The applicant had the right to stay in the flat until she had been provided with an alternative dwelling under the 1975 judgment. If she was being disturbed in exercising this right, she could seek judicial protection against the trespasser. Her right to stay could not be interpreted as entailing her standing to sue. The transfer of ownership of the flat from the cooperative to Mr B. had no effect on her legal position. The applicant must have known that Mr B. had a recognised legal title to the flat and thus could not claim to have acted bona fide in obtaining the title herself. The applicant therefore lacked a “pressing legal interest” in the action and, consequently, could not challenge the contract of 1996. On 11 June 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution which she completed on 7 July 2003. She maintained that the length of the proceedings in her action of 1997, as conducted before the District Court and the Regional Court, had been excessive and that their respective decisions of 8 April 2002 and 19 June 2003 had been arbitrary and legally wrong and had violated her right to respect for her private life and home. On 26 November 2003 the Constitutional Court (Ústavný súd) declared the complaint inadmissible. As to the length of the proceedings in their phase before the District Court, they had ended by the judgment of 8 April 2002. Their examination thus could not bring about their acceleration. In line with the Constitutional Court’s established practice, such an examination was not therefore required. The Constitutional Court did not address the length of the proceedings before the Regional Court. The examination of the subjectmatter of the applicant’s action was primarily the task of the ordinary courts. They had proceeded in accordance with the applicable procedural rules and had given adequate reasons for their decisions. The Constitutional Court discerned no element of arbitrariness in the contested judgments and found that the remainder of the application was therefore manifestly ill-founded. In February 2005 the applicant turned to the Constitutional Court again. She sought to challenge the judgments of the District Court, the Regional Court and the Supreme Court of, respectively, 8 April 2002, 19 June 2003 and 26 October 2004 on the ground that they had violated her right to respect for her private and family life and her home. On 23 March 2005 the Constitutional Court declared the complaint inadmissible as out of time in that it had been lodged outside the statutory twomonth timelimit.
| 0
|
train
|
001-70767
|
ENG
|
DEU
|
CHAMBER
| 2,005
|
CASE OF OKPISZ v. GERMANY
| 3
|
Violation of Art. 14+8;Pecuniary damage - financial award
|
Josep Casadevall
|
8. The applicants were born in 1946 and 1947 respectively and live in Dortmund in Germany. 9. In 1985, the applicants, a married couple, immigrated to Germany with their daughter, born in 1979. Their son, born in 1970, joined them in 1986. 10. In 1987 their request to be recognised as immigrants of German origin (Vertriebene) was rejected. The applicants' request to reopen the proceedings was rejected on 5 November 1992 by the Münster Administrative Court of Appeal (Oberverwaltungsgericht). The same day the applicants were issued with residence titles for exceptional purposes (Aufenthaltsbefugnis) which have been regularly renewed. 11. On 27 December 1993 the Dortmund Labour Office (Arbeitsamt) informed the first applicant, who had received child benefits (Kindergeld) since 1986, that as from 1 January 1994 the child benefits would no longer be paid following a change in legislation. The office noted that according to Section 1 § 3 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below), as amended and in force as from 1 January 1994, a foreigner was only entitled to child benefits if in possession of a residence permit (Aufenthaltsberechtigung) or a provisional residence permit (Aufenthaltserlaubnis). The office noted that this condition was not met in the applicants' case. 12. On 25 March 1994 the Federal Labour Office (Bundesanstalt für Arbeit) rejected the first applicant's objection. 13. The first applicant, assisted by counsel, lodged an action with the Dortmund Social Court (Sozialgericht) with the aim to be granted child benefits from January 1994 onwards. He claimed that he and his family had been residing in Germany since 1985 and had been paying tax and social contributions. He should, therefore, continue to be entitled to the child benefits. 14. On 27 March 1995 the Social Court dismissed the first applicant's action. It confirmed that only aliens with an unlimited or a provisional residence permit were entitled to the payment of child benefits. The new legislation had only intended to grant child benefits to aliens living in Germany on a permanent basis, whereas aliens with only a limited residence title for exceptional purposes were not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law as had been stated by the Federal Social Court in several judgments since 1992. As to the special protection of the family provided under Article 6 of the German Basic Law, the court held that this did not prevent the State from subjecting the payment of child benefits to the type of the residence title. 15. On 14 June 1995 the first applicant, assisted by counsel, lodged an appeal with the North Rhine-Westphalia Social Court of Appeal (Landessozialgericht). 16. On 2 May 1997 the Social Court of Appeal informed the first applicant that it had referred five pilot cases to the Federal Constitutional Court (Bundesverfassungsgericht) for review of Section 1 § 3 of the Child Benefits Acts, and asked him whether he would agree to a suspension of his appeal proceedings until a decision had been given by the Constitutional Court. On 20 May 1997 the Social Court of Appeal, having obtained the parties' agreement, ordered the suspension of the proceedings. 17. By decision of 6 July 2004 in the pilot cases (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/97), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act as effective from January 1994 until December 1995 was incompatible with the right to equal treatment under Article 3 § 1 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006. 18. The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment. 19. On 27 December 2004, following the first applicant's request, the Social Court of Appeal resumed the proceedings. On 9 March 2005 the Social Court of Appeal, with the parties' consent, once again suspended proceedings pending the amendment of the applicable legislation. 20. In 2000 the first applicant lodged a motion with the Munster Tax Court (Finanzgericht) with the aim to be granted child benefits from January 1996 onwards according to the provisions of the Income Tax Act (Einkommensteuergesetz, see relevant domestic law below). On 6 May 2004 the Tax Court rejected the motion. The first applicant did not lodge an appeal. 21. Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force from 1 January 1994 until 31 December 1995, provided for the payment of child benefits which are financed by the Federation. Section 1, as far as relevant, provided as follows: “(1) Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ..., 1. who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act, ... (3) An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...” 22. Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz).
| 1
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train
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001-23972
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ENG
|
NLD
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ADMISSIBILITY
| 2,004
|
CORNELIS v. the NETHERLANDS
| 1
|
Inadmissible
| null |
The applicant, Arnold G. Cornelis, is a Netherlands national, who was born in 1940 and is currently serving a prison sentence in the Netherlands. He was represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam. The facts of the case, as submitted by the applicant, may be summarised as follows. On 16 December 1996 a criminal investigation under the code name “Carex” was opened into several cocaine shipments, which resulted in the seizure of a large quantity of cocaine on 4 June 1997 as well as in the arrest of Mr Z. and another suspect. In July and August 1997, after Mr Z. had indicated his interest in coming to an arrangement with the public prosecution service, the Haarlem public prosecutor Mr A., who was responsible for the supervision of the activities of the Criminal Intelligence Service (Criminele Inlichtingen Dienst – "CID"), explored the possibilities of reaching an arrangement whereby Mr Z. would give statements about others involved in cocaine trafficking in exchange for a reduced sentence. Although no such arrangement was reached in the end, Mr Z. did – in the course of the negotiations – give statements about, among others, the applicant who had not been a suspect in the Carex investigation. These statements were recorded on tape. By judgment of 28 May 1998, the Haarlem Regional Court (arrondissementsrechtbank) convicted Mr Z. of involvement in the importation of 160 and 400 kilograms of cocaine and sentenced him to eight years' imprisonment. He was acquitted in so far as the charges related to a shipment of 700 kilograms of cocaine. Ms C., the Haarlem public prosecutor in charge of the prosecution of Mr Z. before the Regional Court, filed an appeal. The appeal was however withdrawn on 7 October 1998. In the framework of further negotiations, which started in June 1998, between the public prosecutor Mr B. of the National Organised Crime Prosecution Service (Landelijk Parket) and Mr Z. on a possible arrangement, Mr Z. gave statements on 5 June, and on 2, 3, 4, 6, 7, and 8 July 1998 about, among others, the applicant. In these statements, Mr Z. admitted that he had been involved in the shipment of the 700 kilograms of cocaine of which he had been acquitted. After having obtained the advice of the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”) of the public prosecution service (openbaar ministerie), as required by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997, the Board of Procurators General (College van procureursgeneraal) approved the arrangement with Mr Z. The arrangement was formally concluded and consigned to writing on 6 November 1998. This arrangement stipulated inter alia that, in exchange for further truthful statements by Mr Z. on his own role and that of, among others, the applicant in drug trafficking, the public prosecution service would make a positive recommendation that Mr Z.'s request for a partial pardon (gratie) be granted. Furthermore, in the context of the proceeds of crime proceedings against Mr Z., it would make a proposal for a settlement within the meaning of Article 511c of the Code of Criminal Procedure (Wetboek van Strafvordering) to the effect that Mr Z. would pay the State 200.000 Netherlands guilders [90,756.04 euros] (“NLG”) for illegally obtained gains. On 10 March 1998, the applicant was taken into police custody (inverzekeringstelling) on suspicion of involvement in the importation of hashish via Sri Lanka. On the basis of statements given by Mr Z. in the context of the arrangement of 6 November 1998, additional suspicions arose in respect of the applicant concerning his involvement in the importation of large quantities of cocaine. The applicant was eventually summoned to appear before the Amsterdam Regional Court to stand trial on charges of participation in and directing a criminal organisation involved in the importation of cocaine, participation in and directing a criminal organisation involved in the importation of hashish, importation via Belgium of 94, 84, 200, 150, 400 and/or 700 kilograms of cocaine, and (attempted) importation via Sri Lanka of 10,150 kilograms of hashish. In its judgment of 4 June 1999, following adversarial proceedings in the course of which four hearings were held between 22 February and 21 May 1999 and in which it had assessed the reliability of the written and oral evidence of Mr Z. in light of the arrangement of 6 November 1998 and had accepted the lawfulness of this arrangement, the Amsterdam Regional Court convicted the applicant of participation in a criminal organisation involved in the importation via Belgium of cocaine, participation in and directing a criminal organisation involved in the importation of hashish via Sri Lanka, importation of very large quantities of cocaine and 10,150 kilograms of hashish, and sentenced him to six years' imprisonment and payment of a fine of NLG 500,000 [226,890.11 euros]. The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof). Between 17 January and 26 October 2000, eighteen hearings were held before the Amsterdam Court of Appeal. In the course of the proceedings the following relevant events occurred. At the hearing held on 17 January 2000, the Court of Appeal agreed to summon eighteen of the fifty witnesses proposed by the applicant, including Mr Z., various officials of the public prosecution service, cosuspects and other witnesses. It rejected the applicant's request to add to his case file copies of the Carex investigation documents, including the prosecution's closing speech and appeal submissions in the criminal proceedings against Mr Z. as well as all documents relating to the proceeds of crime investigation against Mr Z. The Court of Appeal held that the defence could question the Haarlem public prosecutor Ms C., who had been summoned at the request of the defence to give evidence before the Court of Appeal, on the criminal investigation and proceedings taken against Mr Z. As to the applicant's request that all documents on the arrangement concluded with Mr Z. be included in his case file, the Court stated that it assumed that all these documents were already so included. The Court of Appeal requested the advocate-general in charge of the applicant's prosecution before the Court of Appeal to verify whether this assumption was correct and whether, for reasons linked to the interests of the investigation and/or the safety of others, there remained objections to rendering legible passages in these documents that had been rendered illegible. It further rejected the applicant's request that all correspondence between Mr Z.'s lawyer and the prosecution authorities be included in his case file as it had not been demonstrated by the applicant that Mr Z. and his lawyer had no objections to the disclosure of these privileged documents. The Haarlem public prosecutor Mr A. gave oral evidence before the Court of Appeal on 31 January and 3 July 2000. He denied that the applicant had been a suspect in the Carex investigation, which had concerned another suspect. He further stated that statements given by Mr Z. in the context of the first attempt to reach an arrangement – the CTC not having been involved in that attempt – had been recorded on tape. Although that tape should have been destroyed as no arrangement had been reached, it was still in existence. He further testified that he had not been involved in the further round of negotiations with Mr Z. on a possible arrangement. As to the reasons for the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 in the case of Mr Z., Mr A. testified that this appeal had been filed because the prosecution had considered that there was sufficient evidence to convict Mr Z. also of the shipment of 700 kilograms of cocaine and that the sentence imposed was too low. However, after the Amsterdam advocate-general Ms D. – who at the material time had been unaware of the further negotiations with Mr Z. on a possible arrangement – had concluded that this appeal would stand no chance of success, it had been withdrawn. The withdrawal of the appeal as part of the arrangement with Mr Z. had never been a topic of discussion. He further denied ever having spoken with Ms D. about whether an appeal in the case of Mr Z. was opportune or feasible. The public prosecutor Mr B. gave oral evidence before the Court of Appeal on 31 January and 17 February 2000, in particular on the arrangement concluded with Mr Z. and the procedural steps taken in this context. In reply to questions on a possible link between the withdrawal of the prosecution's appeal against the judgment of 28 May 1998 and this arrangement, Mr B. stated that he had told the Haarlem public prosecutor Ms C. that it would be convenient to file an appeal since this might induce Mr Z. to give a statement. He had never spoken with the advocate-general Ms D. about the chances of success of such an appeal, nor with Ms C. about the withdrawal of the appeal. He had informed the CTC of Mr Z.'s wishes in relation to a possible arrangement and that – on the basis of information he had subsequently obtained and verified –the Haarlem public prosecution department was prepared to withdraw the appeal. However, the Haarlem chief public prosecutor Mr H., apparently having changed his opinion, had subsequently informed the CTC President that he opposed the withdrawal of the appeal. This had given rise to an exchange of correspondence on whether Mr B. had misinformed the CTC. As Mr B. had not submitted this correspondence, the Court of Appeal – acting on a request by the defence – ordered him to submit the correspondence to the advocategeneral for inclusion in the applicant's case file. This correspondence was subsequently added to the applicant's case file. In so far as passages in the CTC documents had been rendered illegible, Mr B. pointed out that, according to the covering CTC letter of the acting CTC President of 8 February 2000, this had been done for the protection of others and the needs of the investigation interests. Mr B. further stated that he had been involved in the determination of what passages should be rendered illegible and that he subscribed to the reasons given by the acting CTC President for rendering these passages illegible. Mr B. refused to answer the question whether these passages concerned investigations – whether on-going or not yet opened – against other suspects. In the course of Mr B.'s hearing before the Court of Appeal on 17 February 2000, the Court of Appeal examined a request of the defence to order the full disclosure of all passages rendered illegible in the CTC documents submitted to the Court of Appeal. The defence argued that these passages might contain unknown information intended to convince the CTC of the necessity to conclude an arrangement with Mr Z. After having deliberated, the Court of Appeal rejected this request, holding: “The request of the defence is rejected and the witness [Mr B.] is not obliged to answer questions about the contents of the passages rendered illegible in the CTC documents. The court notes that it does not have the impression that on this point relevant information has been withheld by the witness, and that it must assess the arrangement on the basis of the available material in the case file, irrespective of the contents of the passages rendered illegible in the CTC documents.” At the hearing held on 7 February 2000, the financial police detective Mr F. was heard before the Court of Appeal. He testified that he had carried out a proceeds of crime investigation into Mr Z. in the context of the Carex investigation and that the Carex investigation had not been directed against the applicant but against other suspects. He had not completed the proceeds of crime investigation into Mr Z., as Mr J. of the National Criminal Investigation Team (Landelijk Rechercheteam) had informed him in the spring or summer of 1998 that this investigation could be brought to a halt. He was of the opinion that, on that occasion, Mr J. had told him that the public prosecutor Mr B. would conclude an arrangement with Mr Z. Mr Z. gave extensive oral evidence before the Court of Appeal on 10 and 14 February, 13, 17 and 27 April, and 22 May 2000. He confirmed having given about ten statements in July 1998 in the context of his arrangement with the prosecution authorities. He declared that he maintained these statements. Mr Z. also confirmed that earlier statements given by him to Mr A. had been recorded on tape. At the hearing held on 14 February 2000, the defence requested that the tape-recorded conversations between Mr Z. and Mr A. be played to the Court of Appeal. Mr Z. indicated that he objected to this. Having deliberated, the Court of Appeal decided: “... that, on the assumption that Mr Z. will give his permission, the tapes must be submitted on the understanding that the court prefers to play these tapes in private.” At the hearing held on 13 April 2000, the defence reiterated its request to have the tapes played in public. The President of the Court of Appeal indicated that the decision previously taken by the Court of Appeal to play the tapes in private had also been influenced by Mr A.'s view that – in conformity with his agreement with Mr Z. – the contents of the taperecorded questionings would not be made public if no arrangement was reached as well as by the position adopted by Mr Z. on the matter. The latter indicated that he would withdraw his permission to allow the tapes to be played if they were to be played in public. The applicant's lawyer then informed the Court of Appeal that, in these circumstances and in the interests of the defence, he withdrew the request to have the tapes played in public. The Court of Appeal then ordered that the tapes be played in private, expressly pointing out that it had decided to listen to these tapes for the purpose of assessing the reliability of Mr Z. The tapes containing the statements given by Mr Z. on 30 and 31 July 1997 were played to the Court of Appeal, sitting in private and in the presence of the parties, during its hearings on 13, 17 and 23 April and 22 May 2000. In his statements recorded on tape, Mr Z. mentioned a person he had called “Taartman” (pastry man) and, some time later, mentioned the applicant by name. In his oral evidence to the Court of Appeal, Mr Z. explained that, at the material time, he had not known that the applicant was the person known as “Taartman” and that the detectives who questioned him had told him that the applicant was “Taartman”. The Amsterdam advocate-general Ms D. gave oral evidence on 17 February 2000, in particular on her involvement in the appeal brought by the prosecution against the judgment of 28 May 1998 in the case of Mr Z. She stated that the Haarlem public prosecutor Mr A. had sought her views, in her capacity as the contact advocate-general for the Haarlem regional public prosecution department, on the chances of the appeal succeeding. She had not known then that the Haarlem public prosecutor Ms C. had been in charge of the prosecution of Mr Z. before the Regional Court or that Mr A. was involved in CID activities. She recalled that, in her telephone conversation with Mr A., the word “deal” had been mentioned and that no deal had been concluded. She had not pursued this topic and had no knowledge about the contents of any deal with Mr Z. After having discussed the case with Mr A. over the telephone, she had concluded that an appeal against the judgment of 28 May 1998 would stand no chance of success as there was insufficient evidence to support the facts of which Mr Z. had been acquitted. She had never seen an appeal memorial of the prosecution in that case and explained that such a memorial only became important once the decision had been taken to pursue an appeal. She did not know that the appeal had in fact been withdrawn and that, in the context of an arrangement, Mr Z. had made about ten statements. She further had not had any contacts with the CTC about Mr Z.'s case. When heard before the Court of Appeal on 21 February 2000, the Haarlem public prosecutor Ms C. declared that the applicant had never appeared as a suspect in the Carex case. She had dealt with that case until October 1998 when she had fallen ill for about one year. To her knowledge, the CID public prosecutor Mr A. had not had any involvement in the Carex case. At one point she had heard from Mr A. that he was having talks with Mr Z. about a possible arrangement. She and Mr A. had then agreed that Mr A. would deal with the arrangement and that she would handle the criminal proceedings against Mr Z., and that Mr A.'s dealings as regards an arrangement would in no way influence her handling of the criminal proceedings. However, at the first court hearing in the criminal proceedings against Mr Z., his lawyer had made references to an arrangement which had caused some consternation. After this experience, she took the view that an arrangement was not desirable as it could jeopardise the criminal proceedings. She had filed an appeal against the judgment of 28 May 1998 because she had felt that there was sufficient evidence, albeit difficult to assemble, of Mr Z.'s involvement in the shipment of the 700 kilograms of cocaine of which he had been acquitted and because she had found that the sentence imposed was too low. She had prepared an appeal memorial, which she could submit to the Court of Appeal. After she had filed the appeal, she had been contacted by Mr B. who had told her that negotiations were being held with Mr Z. about a possible arrangement. Until that point, she had been unaware of these further negotiations on an arrangement and, in her opinion, an appeal could only be withdrawn on legal grounds. Mr B. had also asked her about the proceeds of crime investigation against Mr Z. which, at that time, had not yet been completed. She had informed her superior, the Haarlem chief public prosecutor Mr H., about her conversation with Mr B., indicating to Mr H. that she felt that this development was not the proper way to go. Mr H. had agreed with her and had taken up the issue with someone else. She did not know the name of that person. She did not remember having been contacted by Mr B. before she had filed the appeal and she had only filed the appeal because she disagreed with the Regional Court's judgment and definitely not on the basis of a conversation with Mr B. Considering the case to be a rather special one, Ms C. had contacted the Amsterdam advocate-general Ms D., who had told her that she considered an appeal pointless. After internal discussions and on the basis of Ms D.'s opinion, the appeal had been withdrawn. Ms C. explained that in such a situation, it was common for an appeal to be withdrawn. Ms C. found highly surprising Ms D.'s evidence that she had never seen an appeal memorial in the case of Mr Z. as, following Ms D.'s request, she had sent her this document by fax. A report dated 25 March 2000 prepared by Mr A., accompanied by the formal record of the questioning of Mr Z. on 30 and 31 July 1997, and the appeal memorial prepared by Ms C. in the case of Mr Z. were submitted to the Court of Appeal and added to the applicant's case file on 13 April 2000. At the hearing held on 3 July 2000, the defence requested inter alia to have access to the Carex investigation case file in order to verify the documents from that file that might be of relevance for the applicant's case. The defence stated that it filed this request in order to be able to assess the chances of success of an appeal in the case of Mr Z. in connection with the withdrawal of that appeal. Having deliberated, the Court of Appeal rejected this request, holding: “the request is rejected as the court fails to see in what way granting it can contribute – further – to any decision that must be taken by the court in the present case since – whatever may be of the withdrawal of the appeal in the case of Mr Z. – it has not been established that this has taken place for the purposes of obtaining unreliable or incorrect statements from him.” In its judgment of 9 November 2000, the Court of Appeal quashed the Regional Court's judgment of 4 June 1999, convicted the applicant of participation in a criminal organisation having as its aim the importation of cocaine, participation in a criminal organisation having as its aim the importation of hashish and directing that organisation, repeated participation in offences under Article 2 § 1A of the Opium Act (Opiumwet) and participation in an attempted offence under Article 3 § 1A of the Opium Act. The court sentenced the applicant to nine years' imprisonment. The Court considered at length the arguments raised by the defence to the effect that the arrangement concluded between the public prosecution service and Mr Z. was unlawful under domestic law. The Court of Appeal acknowledged the fact that the applicant's case file contained no record of the conversations and negotiations between Mr Z. and the public prosecution service, nor of the correspondence between his lawyer and the public prosecution service on the arrangement made with Mr Z. However, it found that these conversations and negotiations had been sufficiently clarified in the course of the appeal proceedings. After having examined the circumstances in which the arrangement had been concluded as well as the terms thereof, it concluded that, despite certain shortcomings, the arrangement was in conformity with the 1997 Directive on arrangements with criminals and was not contrary either to the principles governing the proper conduct of proceedings or the requirements of Article 6 of the Convention. The Court of Appeal observed that there had been shortcomings, including: the failure to carry out any primary criminal investigation against the applicant; the fact that the public prosecutor Mr B. had unjustly given the CTC the impression that the statements of Mr Z. might shed further light on the “IRT affaire” [See, for further details, T.D. v. the Netherlands, no. 31127/96, Commission decision of 14 January 1998]; the absence of a written record of the conversations and negotiations with Mr Z. on a possible arrangement; the – failing an adequate recording – unclear course of events in relation to the filing and the withdrawal of the appeal in the criminal proceedings against Mr Z; the fact that a passage in the letter of 28 August 1998 from Mr B. to the chief public prosecutor had been rendered illegible whereas, after its disclosure, this passage had appeared to be relevant to the procedure for the establishment of the arrangement and was significant for the contents of that arrangement and had not been rendered illegible for reasons linked to the interests of the investigation; and the premature termination by the public prosecution service of the proceeds of crime investigation initiated against Mr Z. However, the Court of Appeal held that it could not be said that these shortcomings constituted such serious breaches of the principles governing the proper conduct of proceedings that the applicant's right to a fair trial had been harmed as a result. It did, however, find that these shortcomings, taken together, constituted a defect which, in accordance with Article 359a of the Code of Criminal Procedure, should be taken into account in the determination of the applicant's sentence. On this basis it decided not to impose a ten years' prison sentence, which it considered to be appropriate in the circumstances, but to reduce the applicant's sentence to nine years' imprisonment. The Court of Appeal based the applicant's conviction on statements given by Mr Z., whose evidence was found to be reliable, credible and supported by other evidence, on statements given by co-suspects and other witnesses, on several official (foreign and domestic) police reports, on findings of the Forensic Laboratory (Gerechtelijk Laboratorium), and on statements given by the applicant. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal in cassation. The Supreme Court gave judgment on 9 July 2002. It rejected the applicant's grounds of appeal in their entirety. Acting of its own motion, no such complaint having been raised by the applicant, the Supreme Court held that – given the delay between 9 November 2000, when the applicant had filed his appeal in cassation, and 29 January 2002, when it had commenced its examination of the appeal in cassation – the reasonable time requirement under Article 6 § 1 of the Convention had not been complied with. On that account, it quashed the sentence imposed on the applicant by the Court of Appeal and reduced it by six months. As to the applicant's complaint that the Court of Appeal had unjustly ordered that the tape-recorded statements given by Mr Z. be played in private, the Supreme Court accepted the Court of Appeal's ruling on this point as legally correct and understandable, having regard also to the stance taken by Mr Z. on the matter and to the circumstance that, in the interests of the defence, the applicant's lawyer had withdrawn his request to have the recordings played in public. In response to the applicant's complaints in respect of the arrangement between the public prosecution service and Mr Z., the Supreme Court rejected the applicant's argument that the lawfulness of the arrangement should have been examined on the basis of the Bill on undertakings given to witnesses in criminal proceedings. It held that, as the arrangement at issue had been made prior to the submission of that Bill to the Lower House of Parliament, the Court of Appeal had correctly examined the lawfulness of the arrangement under Article 6 of the Convention, the principles governing the proper conduct of proceedings and the 1997 Directive on arrangements with criminals. The Supreme Court further accepted as correct the conclusion of the Court of Appeal that the arrangement was lawful. The Supreme Court rejected the remainder of the applicant's grounds of appeal, including his complaints that he was not granted access to the Carex investigation case file, to the passages rendered illegible in the so-called “CTC” documents and to the correspondence between the public prosecution department and Mr Z.'s lawyer. It based itself on the following summary reasoning: “The remaining points of appeal do not provide grounds for overturning the judgment of the Court of Appeal (kunnen niet tot cassatie leiden). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these points of appeal do not give rise to a need for a determination of legal issues in the interest of legal unity and legal development.” The Netherlands public prosecution service (openbaar ministerie) functions under the responsibility of the Minister of Justice, but is not an agency of the Ministry of Justice. It forms a part of the judiciary and its organisation is regulated by the Judiciary (Organisation) Act. Pursuant to Article 134 of the Judiciary (Organisation) Act, the prosecution service consists of the National Office of the Public Prosecution Service (Parket-Generaal) which is composed of the Procurators General (procureurs-generaal) and their staff, the Regional Public Prosecution Services (arrondissementsparketten), the Public Prosecution Services at the Court of Appeal (ressortsparketten) and the National Organised Crime Prosecution Service (Landelijk Parket). The public prosecution service is organised in a hierarchical manner and is headed by the Board of Procurators General (College van procureursgeneraal) which is composed of no less than three and no more than five Procurators-General. It determines the investigation and prosecution policy rules. In criminal proceedings before the Regional Court, the functions of the prosecution are exercised by a public prosecutor (officier van justitie) acting under the supervision of a chief public prosecutor (hoofdofficier van justitie) and, in criminal proceedings before the Court of Appeal, by an advocategeneral (advocaat generaal) under the supervision of a chief advocate-general (hoofdadvocaat-generaal). On 1 July 1983 the Board of Procurators General issued a circular in which guidelines were laid down on deals with criminals (Richtlijn deals met criminelen). Special agreements with criminals were only allowed in exceptional cases, in which the investigative interest or the ending or prevention of crimes outweighed the disadvantages of these kinds of agreements (cases of life and death or cases of similar seriousness). Furthermore, these agreements should be a last resort and only to be used if it were likely that the aim pursued could not be reached by other means. The information to be obtained had to be essential to the realisation of the aim. The offer in return could only be granted in cases where the information provided has proved to be sound. In the early 1990s serious concerns arose over methods of criminal investigation used in cases concerning organised crime, including those used by an Interregional Criminal Investigation Team (Interregionaal Recherche Team – "IRT"). A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted which presented its final report on 1 February 1996. In this report, inter alia, agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion. On 1 April 1997, the 1983 Directive on deals with criminal was repealed and replaced by the Directive on arrangements with criminals (Richtlijn afspraken met criminelen) of 13 March 1997. This Directive was published in the Netherlands Government Gazette (Staatscourant) 1997, no. 61). Pursuant to this Directive, a written record must be kept of every step taken in the procedure leading up to an arrangement between a criminal and the public prosecution service, and an arrangement can only be concluded after approval by the Board of Procurators General. Before giving its approval, the Board must consult the Central Advisory Commission (Centrale Toetsingscommissie – “CTC”), which is an internal advisory body of the Netherlands prosecution service. The CTC was established on 7 December 1994 and is composed of members of the public prosecution service and the police. Its task is to advise the Board of Procurators General on intended deployment of special investigative powers and methods (bijzondere opsporingsbevoegdheden en methodieken). The 1997 Directive further stipulates that the final decision on the lawfulness of an arrangement is to be made by the court before which the evidence that has been obtained on the basis of an arrangement is to be submitted. On 17 November 1997, a Bill on undertakings given to witnesses in criminal proceedings (toezeggingen aan getuigen in strafzaken) was submitted for approval to the Lower House of Parliament. At the time of the introduction of the present application, this Bill was still pending before Parliament. Article 101a of the Judiciary (Organisation) Act provides as follows: “If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”
| 0
|
train
|
001-83012
|
ENG
|
HUN
|
CHAMBER
| 2,007
|
CASE OF BODON v. HUNGARY
| 4
|
Violation of Art. 6-1
| null |
4. The applicant was born in 1955 and lives in Budapest. 5. On 13 June 1996 the applicant was arrested on charges of smuggling. He was detained until 10 June 1997. 6. On 26 May 1998 the applicant and his 11 accomplices were charged by the Budapest XVIII/XIX District Public Prosecutor's Office with having participated in a gang of smugglers involved in illegally importing merchandise (mainly perfumes and sweets) worth over 100 million Hungarian forints, from Austria to Hungary. 7. On 17 December 1998 the Customs Authority seized a large amount of merchandise, mainly spirits and cosmetics, held by the applicant. 8. After having held several hearings and obtained the opinions of experts, on 18 June 2004 the Budapest XVIII/XIX District Court held a public hearing, which the applicant's lawyer attended, and discontinued the criminal proceedings against the applicant and his accomplices, observing that their conduct was no longer punishable subsequent to Hungary's accession to the European Union. The court ordered that the seized goods should be returned to the applicant. He states, however, that the Customs Authority had meanwhile sold the merchandise. The decision was served on the applicant's lawyer on 8 November 2004. 9. On 1 April 2005 the applicant filed an action against the State for compensation on account of his pre-trial detention. On 7 June 2005 the Budapest Regional Court dismissed the action, in a procedural decision, observing that it had been introduced outside the six-month statutory time-limit which had run from the pronouncement of the final decision on 18 June 2004. 10. On 24 November 2005 the Budapest Court of Appeal quashed this decision, holding that the applicant's claims had to be examined on their merits. 11. In the resumed proceedings, on 1 March 2006 the Regional Court dismissed the applicant's claims as being statute-barred. 12. On 26 September 2006 the Court of Appeal upheld this decision. Examining the applicant's claims from the perspective of the Codes of Criminal and Civil Procedure and Articles 5 § 5 and 13 of the Convention, the Court of Appeal was satisfied that the final decision had been pronounced on 18 June 2004 and that the applicant's claims were consequently statute-barred. 13. On 26 April 2007 the Supreme Court dismissed the applicant's petition for review.
| 1
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train
|
001-107943
|
ENG
|
MNE
|
CHAMBER
| 2,011
|
CASE OF BARAC AND OTHERS v. MONTENEGRO
| 3
|
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
5. The applicants - Mr Blagota Barać, Mr Milan Terzić, Mr Zoran Stanišić, Mr Stanko Burić, Ms Stanica Marković, Mr Radovan Kadović, Mr Ranko Tomašević, Mr Novo Stanišić, Mr Branko Radulović, Mr Novak Nikolić, Mr Mihailo Popović, Mr Milan Golubović, and Mr Ranko Kovačević - are all Montenegrin nationals who were born in 1968, 1953, 1961, 1950, 1956, 1951, 1952, 1963, 1951, 1966, 1955, 1953, and 1955 respectively and live in Danilovgrad. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 14 January 2005 the applicants filed a claim for compensation (isplata zimnice) against their employer. 8. On 13 February 2006 the Court of First Instance (Osnovni sud) in Danilovgrad ruled in their favour, awarding them 150 euros (EUR) each, plus legal costs totalling EUR 1,875. 9. On 26 April 2006 the High Court (Viši sud) in Podgorica overturned the previous judgment and rejected the applicants’ claim, relying solely on the Act on Changes and Amendments to the Labour Act 2004 (Zakon o izmjenama i dopunama Zakona o radu, hereinafter “the Labour Amendments Act 2004”). At the same time, the applicants were ordered to pay jointly to their employer EUR 900 for legal costs. The applicants received this judgment on 23 May 2006 at earliest. 10. On 12 September 2006 the Supreme Court (Vrhovni sud) in Podgorica rejected the applicants’ appeal on points of law on procedural grounds (revizija se odbacuje). 11. On 28 February 2006 the Constitutional Court of Montenegro (Ustavni sud) declared the Labour Amendments Act 2004 unconstitutional (see paragraph 14 below). 12. On 18 April 2006 that decision was published in Official Gazette no. 24/06 (Službeni list br. 24/06), and thereby the said Act ceased to be in force (see paragraph 13, in particular Article 62 therein, and paragraph 16 below). 13. The relevant provisions of the Act provided as follows: “When it is established that an Act [...] is not in accordance with the Constitution [...] that Act [...] ceases to be in force on the day when the Constitutional Court’s decision is published in the Official Gazette of the Republic of Montenegro.” “[Such an] Act [...] cannot be applied to matters (odnosi) which arose before the day when the decision of the Constitutional Court was published unless a final decision in the particular matter was rendered before that day.” “Those whose rights have been violated by final decisions rendered on the basis of an Act ... which the Constitutional Court established was not in accordance with the Constitution ... have the right to request the body in charge to change the final decision [in question]. A request to have [such a] decision changed shall be submitted within six months of the day when the decision of the Constitutional Court was published in the Official Gazette of the Republic of Montenegro.” “If the consequences of the implementation of the [unconstitutional] Act ... cannot be removed by having the impugned decision changed, the Constitutional Court can determine that the consequences be removed by restitutio in integrum, compensation, or in some other way.” 14. The relevant part of the Decision reads as follows: “It has been established that the Labour Amendments Act 2004 (Official Gazette of the Republic of Montenegro, no. 79/04) is not in accordance with the Constitution of the Republic of Montenegro and it shall cease to exist on the day when this decision is published. 15. The Decision specified that the reason for declaring the above Act unconstitutional was that it had not been adopted in Parliament by an absolute majority of MPs, as required by the Constitution. 16. The Decision was published on 18 April 2006. 17. The Government submitted three decisions of the Constitutional Court of Montenegro, rendered in September 2003, December 2005 and July 2006, respectively, on the basis of Articles 70 and 71 of the Constitutional Court Act 1993. In all three decisions the Constitutional Court, in rejecting other claimants’ requests, had held that Article 70 actually provided for an individual the right to request the reopening of proceedings in which an impugned decision had been rendered. 18. In particular, in its decision of September 2003 the Constitutional Court had rejected an initiative to assess the constitutionality of Article 70 of the Constitutional Court Act 1993. 19. In December 2005 the Constitutional Court rejected a claimant’s request to amend a decision rendered by the Court of First Instance in November 2004, which first-instance decision had been based on a provision which was later, in April 2005, declared unconstitutional. 20. In July 2006 the Constitutional Court rejected a claimant’s request to remove the consequences he had allegedly suffered before November 2005 on account of the implementation of a decision of the Water Supply Company of 2002, the decision having been declared unconstitutional in November 2005. 21. In the latter two decisions, the claimants’ requests were rejected as they had failed to previously request the reopening of the proceedings in which the impugned decisions had been rendered.
| 1
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train
|
001-58128
|
ENG
|
TUR
|
GRANDCHAMBER
| 1,998
|
CASE OF THE UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY
| 2
|
Violation of Art. 11;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Not necessary to examine P1-1;Not necessary to examine P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
|
C. Russo;John Freeland;N. Valticos;R. Pekkanen
|
7. The United Communist Party of Turkey (“the TBKP”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 10 below). Mr Nihat Sargın and Mr Nabi Yağcı, the second and third applicants, were respectively Chairman and General Secretary of the TBKP. They live in Istanbul. 8. The TBKP was formed on 4 June 1990. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraph 12 below). 9. On 14 June 1990, when the TBKP was preparing to participate in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the TBKP. He accused the party of having sought to establish the domination of one social class over the others (Articles 6, 10 and 14 and former Article 68 of the Constitution and section 78 of Law no. 2820), of having incorporated the word “communist” into its name (contrary to section 96(3) of Law no. 2820), of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation (Articles 2, 3 and 66 and former Article 68 of the Constitution, and sections 78 and 81 of Law no. 2820) and of having declared itself to be the successor to a previously dissolved political party, the Turkish Workers’ Party (section 96(2) of Law no. 2820). In support of his application Principal State Counsel relied in particular on passages from the TBKP’s programme, mainly taken from a chapter entitled “Towards a peaceful, democratic and fair solution for the Kurdish problem”; that chapter read as follows: “The existence of the Kurds and their legitimate rights have been denied ever since the Republic was founded, although the national war of independence was waged with their support. The authorities have responded to the awakening of Kurdish national consciousness with bans, oppression and terror. Racist, militarist and chauvinistic policies have exacerbated the Kurdish problem. That fact both constitutes an obstacle to the democratisation of Turkey and serves the interests of the international imperialist and militaristic forces seeking to heighten tension in the Middle East, set peoples against each other and propel Turkey into military adventures. The Kurdish problem is a political one arising from the denial of the Kurdish people’s existence, national identity and rights. It therefore cannot be resolved by oppression, terror and military means. Recourse to violence means that the right to self-determination, which is a natural and inalienable right of all peoples, is not exercised jointly, but separately and unilaterally. The remedy for this problem is political. If the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite. The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests. The solution of the Kurdish problem must be based on the free will of the Kurds and take into account the common interests of the Turkish and Kurdish nations and contribute to the democratisation of Turkey and peace in the Middle East. A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity. The solution of the Kurdish problem will require time. In the immediate future, priority must be given to ending military and political pressure on the Kurds, protecting the lives of Kurdish citizens, bringing the state of emergency to an end, abandoning the ‘village guards’ system and lifting bans on the Kurdish language and Kurdish culture. The problem should be freely discussed. The existence of the Kurds must be acknowledged in the Constitution. Without a solution of the Kurdish problem, democratic renewal cannot take place in Turkey. Any solution will entail a fight for the democratisation of Turkey.” Two other passages relied on by Principal State Counsel read as follows: “... the United Communist Party of Turkey is the party of the working class, formed from the merger of the Turkish Workers’ Party and the Turkish Communist Party. ... The cultural revival will be fashioned by, on the one hand, the reciprocal influence of contemporary universal culture and, on the other, Turkish and Kurdish national values, the heritage of the Anatolian civilisations, the humanist elements of Islamic culture and all the values developed by our people in their effort to evolve with their times.” The Turkish Workers’ Party referred to above had been dissolved on 16 October 1981 on grounds similar to those relied on against the TBKP. 10. On 16 July 1991 the Constitutional Court made an order dissolving the TBKP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107(1) of Law no. 2820. The order was published in the Official Gazette on 28 January 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (Article 69 of the Constitution and section 95(1) of Law no. 2820 – see paragraph 11 below). The Constitutional Court firstly rejected the submission that the TBKP maintained that one social class, the proletariat, was superior to the others. Referring to the party’s constitution, modern works on Marxist ideology and contemporary political ideas, it held that the TBKP satisfied the requirements of democracy, which was based on political pluralism, universal suffrage and freedom to take part in politics. The court also rejected the argument, based on section 96(2) of Law no. 2820, that no political party may claim to be the successor to a party that has previously been dissolved. In its view, it was entirely natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought. The TBKP had accordingly not infringed the provision relied on by reason only of its intention of drawing on the experience and achievements of Marxist institutions. The Constitutional Court went on to hold that the mere fact that a political party included in its name a word prohibited by section 96(3) of Law no. 2820, as the TBKP had done in the present case, sufficed to trigger the application of that provision and consequently to entail the dissolution of the party concerned. As to the allegation that the TBKP’s constitution and programme contained statements likely to undermine the territorial integrity of the State and the unity of the nation, the Constitutional Court noted, inter alia, that those documents referred to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality the proposals in the party constitution covering support for non-Turkish languages and cultures were intended to create minorities, to the detriment of the unity of the Turkish nation. Reiterating that self-determination and regional autonomy were prohibited by the Constitution, the Constitutional Court said that the State was unitary, the country indivisible and that there was only one nation. It considered that national unity was achieved through the integration of communities and individuals who, irrespective of their ethnic origin and on an equal footing, formed the nation and founded the State. In Turkey there were no “minorities” or “national minorities”, other than those referred to in the Treaty of Lausanne and the friendship treaty between Turkey and Bulgaria, and there were no constitutional or legislative provisions allowing distinctions to be made between citizens. Like all nationals of foreign descent, nationals of Kurdish origin could express their identity, but the Constitution and the law precluded them from forming a nation or a minority distinct from the Turkish nation. Consequently, objectives which, like those of the TBKP, encouraged separatism and the division of the Turkish nation were unacceptable and justified dissolving the party concerned. 11. At the material time the relevant provisions of the Constitution read as follows: “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” “The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...” “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” “Everyone linked to the Turkish State by nationality shall be Turkish.” “Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose... Political parties shall be an indispensable part of the democratic political system. Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law. The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic. No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...” “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...” 12. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: “Political parties (a) shall not aim, strive or incite third parties to change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...” “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...” “The constitution, programme and activities of political parties may not contravene the Constitution or this Law.” “No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.” “The Constitutional Court shall dissolve a political party where (a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or (b) its membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...” “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above.
| 1
|
train
|
001-87056
|
ENG
|
MKD
|
CHAMBER
| 2,008
|
CASE OF MANEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4
|
Violation of Article 6 - Right to a fair trial
|
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
|
4. The applicant was born in 1936 and lives in Skopje. 1. Proceedings concerning an order of the Governor of the National Bank (“the first set of proceedings”) 5. The applicant worked as General Manager of a bank, “K.B.” (“the bank”). 6. On 25 April 1996 the Governor of the National Bank (“the Governor”) issued an order preventing the applicant from working as the bank’s General Manager and from exercising other duties associated with special responsibilities for an indefinite period of time (“the order”). The order was based on findings as to the applicant’s unlawful business conduct and irregularities in the bank’s operation under his management. On 22 May 1996 the Council of the National Bank (“the Council”) dismissed the applicant’s appeal and confirmed the order. 7. On 12 September 1996 the Supreme Court allowed the applicant’s appeal on points of law (управен спор) submitted on 29 May 1996 and annulled the Council’s decision. It found that the position of general manager of a bank was not associated with special responsibilities and accordingly the order should not have been issued in respect of the applicant. 8. On 13 November 1996 the Constitutional Court upheld the applicant’s actio popularis and declared section 52 § 14 of the National Bank Act, under which the Governor had been entitled to take other measures (apart from those explicitly mentioned) if necessary, unconstitutional. 9. On 18 June 1997 the Constitutional Court declared the provisions of the National Bank Act, in accordance with which the Council decided upon appeals against the Governor’s decisions, unconstitutional. It found that the Governor’s participation in and chairing of the Council when the latter decided against his decisions given at first instance had been contrary to the constitutional principle of two-instance decision-making. 10. On 9 June 1997 the plenary session of the Supreme Court (општа седница) granted the public prosecutor’s request for the protection of legality (барање за заштита на законитоста) and quashed the Supreme Court’s decision of 12 September 1996. The court referred in its decision to the National Assembly’s authentic interpretation of section 70 of the Banks and Savings Institutions Act (Закон за банки и штедилници), according to which the manager of a bank was to be considered “a person with special responsibilities”. 11. On 4 February 1998 the Supreme Court, relying on the Constitutional Court’s decision of 18 June 1997, accepted the applicant’s appeal and annulled the Council’s decision of 22 May 1996. 12. As the Council allegedly remained inactive, the applicant requested the Supreme Court to decide his case on the merits instead of the Council. 13. On 1 September 1998 the Council, sitting without the Governor, dismissed the applicant’s appeal and upheld the latter’s decision. On 18 November 1998 the Supreme Court rejected the applicant’s request to decide his case on the merits instead of the Council. 14. On 7 July 1999 the Supreme Court granted the applicant’s appeal and annulled the Council’s decision. It found that the Council had established the facts incompletely and violated procedural rules. 15. On 26 August 1999 the Council dismissed the applicant’s appeal again. 16. On 6 September 1999 the applicant lodged a fresh appeal with the Supreme Court. 17. On 2 December 1999 the Supreme Court allowed the applicant’s appeal and annulled the Council’s decision of 26 August 1999 and the order of 25 April 1996. It found that the Governor and the Council had wrongly established that the applicant had abused the monetary system. On 19 February 2001 the plenary session of the Supreme Court granted the public prosecutor’s request for the protection of legality and quashed that decision. It found that the facts had been re-established without a hearing. 18. On 11 September 2003 the Supreme Court finally dismissed the applicant’s appeal. It based its decision, inter alia, on the Banks and Savings Institutions Act of 1993, in accordance with which the National Bank supervised the lawfulness of a bank’s operation and accordingly had been authorised to prevent, fully or partially, persons with special responsibilities from exercising their duties. It also referred to section 50 § 2 of the National Bank Act of 1992 and ruled that the latter had lawfully prevented the applicant from working as General Manager of the bank due to irregularities in the operation of the bank under his management. 19. On 26 December 2003 the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality. 2. Civil proceedings concerning the applicant’s forced retirement (“the second set of proceedings”) 20. On 25 May 2000 the newly appointed General Manager of the bank dismissed the applicant as having fulfilled the conditions for his retirement. 21. On 27 June 2000 the bank’s Executive Board (“the Board”) dismissed the applicant’s objection. 22. On 4 June 2000 the applicant brought a civil action challenging his forced retirement. He argued that he had not met the statutory conditions for entering retirement. 23. On 2 July 2001 the Skopje Court of First Instance granted the applicant’s claim and annulled the bank’s decisions. It gave the ruling after it had obtained an expert report concerning the applicant’s period of employment. 24. On 6 September 2001 the bank appealed. On 6 December 2001 the Skopje Court of Appeal quashed the lower court’s decision and ordered a retrial. 25. On 6 December 2002 the Skopje Court of First Instance granted the applicant’s claim again and annulled the bank’s dismissal decisions. None of the scheduled hearings were adjourned upon the applicant’s request. 26. On 13 November 2003 the Skopje Court of Appeal allowed the bank’s appeal of 4 February 2003 and quashed the lower court’s decision. 27. On 14 October 2005 the Skopje Court of First Instance dismissed the applicant’s claim. In the course of those proceedings, that court sought information from different institutions about the applicant’s period of employment. On 1 September 2004 it also appointed an expert to draw up a report in that connection and ordered those institutions to allow her access to the relevant documentation. The expert report was produced in March 2005. On 23 March 2006 the Skopje Court of Appeal upheld the first-instance court’s decision. 28. On 29 May 2006 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court. The proceedings are apparently still pending. 3. Civil proceedings concerning the applicant’s removal from the position of General Manager of the bank (“the third set of proceedings”) 29. On 29 July 1996 the Board removed the applicant from the position of General Manager of the bank. On 9 October 1996 the Board dismissed the applicant’s objection and terminated his contract with the bank. 30. On an unspecified date in 1996, the applicant instituted civil proceedings against the decisions of the Board. 31. On 29 November 1996 the Skopje Court of First Instance partially allowed the applicant’s claim and annulled the Board’s decisions. The court dismissed the applicant’s claim concerning the termination of the contract. 32. On 17 September 1997 the Skopje Court of Appeal granted both parties’ appeals and quashed the lower court’s decision. 33. On 27 April 1998 the Skopje Court of First Instance dismissed the applicant’s claim concerning his removal and rejected his claim related to the termination of his contract. 34. On 2 June 1999 the Skopje Court of Appeal ruled partly in favour of the applicant, namely, it accepted his appeal concerning his removal and dismissed it in respect of his contract. 35. On 19 January 2000 the Skopje Court of First Instance granted the applicant’s claim and annulled the Board’s decisions related to his removal (“the court order”). That decision was upheld by the Skopje Court of Appeal’s decision of 19 April 2000. 36. After the Board had refused the applicant’s request to “reinstate his status prior to his removal” (воспоставување на правната состојба како пред разрешувањето), the applicant instituted enforcement proceedings claiming reinstatement and payment of salary arrears. 37. On 27 October 2000 the Skopje Court of First Instance dismissed the applicant’s request as the court order had not provided for his reinstatement. 38. On 22 January 2001 the Skopje Court of Appeal allowed the applicant’s appeal and remitted the case for re-examination, arguing that the court order had had a retrospective effect. 39. On 12 February 2001 the Skopje Court of First Instance dismissed the applicant’s claims for his reinstatement and for payment of salary arrears. 40. On 26 April 2001 the Skopje Court of Appeal upheld the lower court’s decision and dismissed the applicant’s appeal. By a letter of 9 September 2005, the Skopje Court of First Instance stated that there was no evidence in the file attesting that a copy of that decision had been served on the applicant or his counsel. 41. By an application of 10 July 2001, the applicant unsuccessfully requested the public prosecutor to lodge a request with the Supreme Court for the protection of legality (барање за заштита на законитоста). His application was refused on 31 August 2001. On 12 September 2001 that notification was allegedly served on the applicant.
| 1
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train
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001-114514
|
ENG
|
SVK
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CHAMBER
| 2,012
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CASE OF I.G. AND OTHERS v. SLOVAKIA
| 3
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Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objections dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
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George Nicolaou;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
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6. The applicants are of Roma ethnic origin. The first applicant, Ms I.G., was born in 1983. The second applicant, Ms M.K., was born in 1981. The third applicant, Ms R.H., was born in 1972. She died on 9 October 2010. Her three children, Ms B.P., Mr D.M. and Mr R.M., expressed the wish to pursue the application in the third applicant’s stead. 7. The applicants were sterilised in the gynaecology and obstetrics department of Hospital and Health Care Centre in Krompachy (Nemocnica s poliklinikou Krompachy – “Krompachy Hospital”), a medical institution which was then under the authority of the Ministry of Health. 8. The first applicant was sterilised on 23 January 2000. 9. According to the first applicant, after her admittance and preliminary checks, the gynaecologist in the hospital ordered her to be transferred to theatre for a Caesarean section. She was asked to write down names for her future child on a piece of paper. The first applicant was subsequently transferred to theatre and a Caesarean section was performed on her. During the operation, the first applicant was sterilised by tubal ligation. This was the applicant’s second delivery, and also her second delivery by Caesarean section. 10. When she woke up from the anaesthetic, the first applicant was told that she had given birth to a girl. 11. The first applicant submitted that she had not been given any further details about the delivery, nor was she told that she had undergone tubal ligation and that she had been sterilised. 12. The next morning she was approached by the doctor treating her, who came into her room and asked her to sign a document. The first applicant was told that she had to sign the document because she had undergone a Caesarean section and all women who had Caesarean sections had to sign it. 13. On 28 January 2000 the first applicant was transferred to a hospital in Košice due to an inflammation as a post-surgery complication. On 9 February 2000 she underwent further surgery due to a serious infection and sepsis. This operation was considered life-saving. During the operation the doctors performed a hysterectomy on the first applicant. 14. The first applicant first learned that she had been sterilised during her second delivery, while reviewing her medical files with her lawyer on 16 January 2003. The medical file contained a form entitled “Request for authorisation of sterilisation”. The form had been filled in using a typewriter. It was dated 23 January 2000 and had been signed by the first applicant. 15. The second half of the pre-printed form contained the decision of the district sterilisation committee at Krompachy Hospital dated 23 January 2000. This decision approved the first applicant’s sterilisation. It indicated that the sterilisation was required for medical reasons, that the applicant had two children, that she had earlier given birth by Caesarean section, and that she had a small pelvis. The conditions laid down in the 1972 Sterilisation Regulation had been met in relation to the applicant’s sterilisation. The decision was signed by the president of the committee, the district medical specialist on the issue and the secretary to the sterilisation committee. 16. The first applicant submitted that her sterilisation had been contrary to Slovakian law, as at the relevant time she was 16 years old and her legal guardians had not consented to the operation. 17. The first applicant has been living in constant fear that her partner will leave her because she is not able to bear him any more children. 18. The second applicant was sterilised in Krompachy Hospital on 10 January 1999. The sterilisation was performed on her during her second delivery by Caesarean section. Shortly after being admitted to Krompachy Hospital, she was transferred to a ward, where she was approached by a nurse who told her that the delivery would have to be by Caesarean section. The Caesarean delivery was then performed. During the operation medical staff of Krompachy Hospital also performed a tubal ligation on the second applicant. 19. At the date of delivery the second applicant was 17 years old (that is to say, a minor) and not legally married. She submitted that neither she nor her parents had been advised of her sterilisation prior to it, and that they had never signed any document consenting to it. According to their statements in the course of civil proceedings on the second applicant’s action (for further details see below), the second applicant and her parents stated that the medical staff had informed them orally after the operation. 20. The second applicant learned only four years later, during a criminal investigation, that her medical record contained a form entitled “Request for sterilisation” with her signature dated 9 January 1999. The form lists as the reason for the sterilisation “multiple varicose veins in the pelvis minor” and indicates that the applicant had given birth to two children by Caesarean section. The same document contains a decision by the district sterilisation committee approving the request and dated 9 January 1999. 21. When the second applicant’s partner learned that she would not be able to have another child due to the sterilisation, he left her. Due to her inability to have more children, her social status in her community has fallen and, as a result, it was very difficult for the second applicant to find a new partner. 22. The second applicant currently has a partner, but she is worried about the future of this relationship because she and her partner want to have a child together and her partner is complaining about her infertility. The second applicant is also suffering serious medical side-effects from her sterilisation. 23. The third applicant was sterilised in Krompachy Hospital on 11 April 2002. The sterilisation was performed during her fourth delivery, when she delivered her fourth and fifth children (twins). It was her first delivery by Caesarean section. 24. Prior to her delivery the third applicant had regular pre-natal checkups with the chief gynaecologist in Krompachy Hospital. She was told that her pregnancy would be risky because she was expecting twins. In the eighth month of her pregnancy she was informed that she would have to deliver by Caesarean section. 25. The third applicant arrived at Krompachy Hospital in the evening of 10 April 2002 after she had begun having contractions. She was admitted to the gynaecology ward at 10.15 p.m. and spent the night there. At approximately 8 a.m. on 11 April 2002 she was taken to theatre. A nurse gave her a pre-medication injection as a precursor to the anaesthetic. The applicant felt that her head was spinning. A nurse, with the doctor standing beside her, asked the third applicant to sign a paper. Because she was feeling dizzy as a result of the injection, the third applicant was unable to read what was written on the paper. The nurse told the applicant that she had to sign it as she was going to have a Caesarean delivery. 26. The third applicant submitted that she had signed the document without understanding its contents. 27. On 18 April 2002 the third applicant was discharged from Krompachy Hospital at her own request. She stated that the hospital had asked her to sign a document prior to her discharge. She was given no time to read the document when signing it. In reply to a question from the applicant, the doctor stated that the paper confirmed that she had been sterilised. The doctor refused to give any further explanation to the applicant. 28. The discharge report indicates that the third applicant was sterilised during the Caesarean delivery. It was only later, on 14 August 2003, during questioning at a police station, that a police investigator showed the applicant the request for sterilisation, which appeared to include her signature. 29. The form had been filled in using a typewriter and was dated 10 April 2002. The second part contains the decision of the sterilisation committee dated 10 April 2002 approving the operation as compliant with the 1972 Sterilisation Regulation. The document states that there were “medical reasons” for the operation and that the applicant had already had three children. 30. With a view to describing the overall situation and context in which they had been sterilised, the applicants submitted that they had received inferior treatment during their stay in Krompachy Hospital. In their view, racial prejudice on the part of medical personnel had played a significant role in the quality of the treatment they received. 31. In particular, the applicants stated that they had been accommodated separately from nonRoma women, in what were called “Gypsy rooms”. They had been prevented from using the same bathrooms and toilets as nonRoma women, and could not enter the dining room, where there was a television set. The second applicant had also experienced verbal abuse from health care personnel during her stay in Krompachy Hospital. 32. With reference to the Body and Soul Report (see below), the applicants stated that the chief gynaecologist at Krompachy Hospital had admitted that patients were categorised and separated according to their “adaptability” and level of hygiene. That categorisation was carried out by him on an individual basis. According to the Body and Soul Report the same physician had also stated that Roma did not know the value of work, that they abused the social welfare system and that they had children simply to obtain more social welfare benefits. 33. The Government disputed the above allegations. They relied, inter alia, on a statement by a gynaecologist at Krompachy Hospital that there had been no deliberate segregation of Roma women. On the contrary, due to the similarity of their habits Roma women themselves asked to be placed in rooms together; they even moved without authorisation to other rooms for that purpose. There were also cases where Roma women with a higher social status requested isolation from other patients of Roma origin. 34. In response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of Body and Soul: Forced and Coercive Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia (“the Body and Soul Report”), the Human Rights and Minorities Section of the Office of the Government of Slovakia initiated a criminal investigation of the alleged unlawful sterilisation of several women, including the three applicants. 35. The first and third applicants joined the Office of the Government in their criminal complaint and, together with the second applicant, also acted as witnesses and injured parties in the proceedings. 36. The proceedings were formally brought by the regional criminal investigation department in Košice on 31 January 2003. 37. In a decision of 24 October 2003 the regional criminal investigation department in Žilina, to which the case had been transferred, discontinued the criminal investigation, finding that the alleged events underlying the investigation had not occurred and that nothing indicated that any offence under the Criminal Code had been committed. 38. On 31 October 2003 the applicants and two others lodged a complaint against the police investigator’s decision of 24 October 2003. On 9 March 2004 the regional prosecutor’s office in Košice dismissed it, holding that injured parties, including the applicants, were not entitled to lodge complaints against the decision of 24 October 2003. In a separate letter of 9 March 2004 the regional prosecutor addressed the arguments of the complainants and found that the police investigator’s decision had been lawful and correct. 39. On 15 April 2004 the applicants requested the General Prosecutor to submit a complaint of a breach of law to the Supreme Court. The General Prosecutor’s Office considered it a request for review of the lawfulness of the criminal proceedings. On 10 June 2004 it informed the applicants that their request had been refused, and that the General Prosecutor fully approved the proceedings and the decision to terminate the investigation. 40. On 1 June 2005 the Constitutional Court quashed the decision given by the regional prosecutor’s office in Košice on 9 March 2004, for the reasons set out below. 41. On 28 September 2005 a public prosecutor of the regional prosecutor’s office in Košice dismissed a further complaint against the police investigator’s decision of 24 October 2003. The public prosecutor found that all the available and necessary evidence had been gathered with a view to determining the issue. It had not been shown that the medical doctors concerned had taken unauthorised actions with a view to preventing the birth of children, or that they had otherwise acted in a manner contrary to the law. 42. Following the Constitutional Court’s judgment of 13 December 2006 (see below) the Košice regional prosecutor’s office, on 9 February 2007, quashed the investigator’s decision of 24 October 2003 to discontinue the criminal proceedings. 43. Subsequently, the police investigator examined and cross-examined the applicants and the medical staff. On 28 December 2007 the investigator again discontinued the proceedings, concluding that no criminal offence had been committed. 44. On 4 January 2008 the applicants lodged a complaint. They argued that the investigator had failed to deal with all relevant aspects of the case and had not remedied the shortcomings to which the Constitutional Court had pointed in the judgment of 13 December 2006. 45. On 19 February 2008 the Košice regional prosecutor’s office dismissed the applicants’ complaint, holding that the sterilisations had been carried out in accordance with the law then in force, and that the applicants had been duly advised of their sterilisation. No objective or subjective appearance of any criminal offence had been established in any of the individual cases of sterilisation. 46. On 16 March 2008 the applicants complained about that decision to the General Prosecutor’s Office. 47. On 19 May 2008 the latter replied that no reason had been found to reach a different conclusion. In particular, the prosecuting authorities had considered all relevant aspects of the case and had correctly concluded that no criminal offence had been committed. The General Prosecutor’s Office expressed the view that, contrary to what the prosecuting authorities at lower level had held, the applicants could not be considered injured parties for the purpose of the criminal proceedings, as they had suffered no harm to their health, nor any other damage, and their rights had not been infringed. 48. On 12 February and 2 June 2004 respectively the first and second applicants claimed damages from Krompachy Hospital. They relied on Articles 420 and 444 of the Civil Code and claimed that they had been unlawfully sterilised by the defendant’s employees. The third applicant brought a similar action with the Spišská Nová Ves District Court on 7 October 2004. 49. The cases were examined by courts at two levels of jurisdiction. It was established that the Krompachy municipality was to be considered the defendant once Krompachy Hospital had ceased to exist. The applicants’ claims were determined as follows. 50. On 20 January 2005 the Spišská Nová Ves District Court rejected the first applicant’s claim as statute-barred. On 23 May 2005 the Košice Regional Court quashed that decision. 51. Subsequently the District Court heard the parties and witnesses, obtained the opinion of an expert and took documentary evidence. On 12 January 2009 it dismissed the first applicant’s claim. In the judgment it admitted that the first applicant’s sterilisation had not been life-saving surgery. As the applicant had been under the age of majority, her parents’ approval should have been obtained prior to the surgery. 52. With reference to the expert opinion, the court further established that the reason for the first applicant’s permanent infertility was the hysterectomy. That operation had been carried out as a life-saving intervention several days after the delivery, for reasons which were unrelated to the sterilisation. The operation had thus had no lasting consequences for the first applicant. The court concluded that there was no causal link between the breach of the first applicant’s rights in the context of her sterilisation and its alleged effect on her health, private and family life and position in society. 53. The first applicant appealed. She argued that she had been deprived of the ability to have children by her sterilisation on 23 January 2000. The subsequent hysterectomy could not absolve the defendant from liability for her unlawful sterilisation. She contested the District Court’s argument that the sterilisation had not permanently deprived her of the ability to conceive. 54. On 26 October 2009 the Regional Court upheld the first-instance judgment. It held that the District Court had established the relevant facts and had applied the law correctly. A causal link between the unlawful sterilisation of the first applicant and the damage which she alleged she had thereby suffered had ceased to exist with the performance of the hysterectomy. The Regional Court concluded that during the short period between the sterilisation and the hysterectomy the first applicant could not have suffered any damage resulting from an impairment of her position in society, contrary to her allegation. Without further specification the judgment indicated that the first applicant might have suffered damage of a different nature, but that this was not the subject matter of the proceedings. 55. On 2 May 2005 the District Court rejected the action of the second applicant. On 6 February 2006 the Regional Court quashed that decision. 56. Subsequently the District Court heard the parties and witnesses and examined documentary evidence. It also obtained the opinion of an expert, the second applicant having previously challenged several other experts appointed by that court. 57. On 11 May 2009 the District Court dismissed the action. On the basis of the expert opinion it established that the second applicant had not suffered serious damage to her health and that the operation had not affected her life and position in society. The judgment stated that the second applicant could become pregnant, for example by means of sterilisation reversal surgery or by assisted reproduction. The applicant had been living with her second partner for four years and she had not shown that her social life had been impaired. Finally, the District Court held that, had the second applicant shown that her health had been damaged as a result of her sterilisation, she would have been entitled to 1,593 euros (EUR) in compensation under the relevant law. 58. On 27 January 2010 the Regional Court quashed that judgment as erroneous. It held that the hospital staff had acted contrary to the law in that they had not obtained the approval of the second applicant’s legal guardians prior to her sterilisation. 59. On 15 June 2010 the District Court ordered the defendant to pay EUR 1,593.3 to the second applicant. It found no reason to avail itself of its right under Regulation 32/1965 to grant a higher award. 60. On 10 November 2010 the Košice Regional Court upheld the District Court’s judgment of 15 June 2010 while holding second applicant’s argument that it was not clear whether she could become pregnant as a result of sterilisation reversal surgery or assisted reproduction, and that such methods were not accessible to her. For the appeal court, it had not been reliably established that the second applicant and her partner would have had children if she had not been sterilised. Finally, the Regional Court held that the award could not be increased on the ground of the alleged impairment of the applicant’s position as a member of a socially excluded Roma community. That issue was to be assessed from the perspective of cultural norms shared in society as a whole, under which infertile men and women were no longer subject to denigration and mockery. 61. On 24 October 2011 the District Court discontinued the proceedings in respect of the third applicant. It held that under the relevant law the right claimed had been extinguished upon her death. 62. On 24 May 2004 the applicants lodged a complaint with the Constitutional Court. They referred to the above decisions by the police investigator of the regional criminal investigation department in Žilina and the regional prosecutor’s office in Košice of 24 October 2003 and 9 March 2004 respectively, and alleged that their rights under Articles 3, 8, 12, 13 and 14 of the Convention and several constitutional provisions had been breached. 63. On 1 June 2005 the Constitutional Court found that the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 13 and 3 of the Convention, in that it had erroneously rejected their complaint against the police investigator’s decision of 24 October 2003 without addressing its merits. The Constitutional Court quashed the decision of the regional prosecutor’s office of 9 March 2004 and ordered that authority to examine the applicants’ complaint. That order, together with the finding of a violation of the applicants’’s office in Košice to reimburse the applicants’ costs and expenses in the constitutional proceedings. 64. On 30 November 2005 the applicants complained that the authorities involved in the above criminal investigation had failed to ensure that those responsible for their sterilisation were prosecuted and that the applicants were awarded compensation. The applicants alleged a violation of Articles 3, 8, 13 and 14 of the Convention. They also relied on several constitutional rights. 65. On 13 December 2006 the Constitutional Court found that by its decision of 28 September 2005 the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 3 and 8 of the Convention in their procedural aspect, 66. The Constitutional Court quashed the decision in issue and ordered the regional prosecutor’s office to re-examine the case, taking into account the applicants’ rights under Articles 3 and 8 of the Convention. The decision indicated the issues which the prosecuting authorities were required to clarify. 67. The Constitutional Court awarded the equivalent of EUR 1,430 to each of the applicants. It ordered the regional prosecutor’s office to reimburse the applicants’ costs. 68. On 24 April 2008 the applicants complained under Articles 3, 8, 13 and 14 of the Convention about the Košice regional prosecutor’s decision of 19 February 2008 and the fact that their case had not been investigated in a prompt and efficient manner. The applicants indicated that they had also complained about that decision to the General Prosecutor’s Office by way of an extraordinary remedy, and that the latter had not yet replied to them. 69. On 3 June 2008 the applicants sent the Constitutional Court a copy of the letter of the General Prosecutor’s Office of 19 May 2008 rejecting their complaint about the regional prosecutor’s decision. 70. The Constitutional Court rejected the applicants’ complaint on 29 July 2008. It held that the decision of the Košice regional prosecutor’s office of 19 February 2008 had been reviewed by the General Prosecutor’s Office at the applicants’ request. Any interference with the applicants’ rights which the Constitutional Court was entitled to examine in the context of the proceedings complained of therefore stemmed from the decision the General Prosecutor’s Office had given on 19 May 2008. Since the applicants had exclusively challenged the decision of the regional prosecutor’s office, and since the Constitutional Court was bound by the way in which they had specified the subject matter of their complaint, the court concluded that it lacked jurisdiction to deal with the complaint. 71. On 10 March 2010 the first applicant complained about the proceedings leading to the Košice Regional Court’s judgment of 26 October 2009. She alleged a breach of Articles 3, 6, 8, 12, 13 and 14 of the Convention, as well as of her rights under several other international treaties and the Constitution. 72. On 7 September 2010 the Constitutional Court declared the complaint manifestly ill-founded. It held that the Regional Court’s judgment was not arbitrary or otherwise contrary to the first applicant’s rights. 73. On 9 March 2011 the second applicant alleged a breach of, inter alia, Articles 3, 6, 8, 13 and 14 of the Convention in the context of the proceedings leading to the Regional Court’s judgment of 10 November 2010. 74. On 13 July 2011 the Constitutional Court dismissed the complaint as manifestly ill-founded. It held that the manner in which the ordinary courts had determined the amount of compensation due to the second applicant was not arbitrary or otherwise contrary to her fundamental rights and freedoms. 75. The applicants referred to a number of publications pointing to a history of sterilisation of Roma women, which had originated under the communist regime in Czechoslovakia in the early 1970s and which they believed had influenced their own sterilisation. They also referred to the Body and Soul Report and a number of other reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies, requesting the Slovakian authorities to conduct an impartial and fair investigation of the allegations of forced and coerced sterilisation of Roma women in Slovakia, or criticising the absence of such an investigation (for further details see also V.C. v. Slovakia, no. 18968/07, §§ 43-47, 8 November 2011). 76. The Government cited a report of 28 May 2003 drawn up by a group of experts established by the Ministry of Health with a view to investigating allegations of unlawful sterilisations and segregation of Roma women (for further details see V.C. v. Slovakia, cited above, §§ 50-55). 77. In their opinion on the Body and Soul Report representatives of the Slovakian Society for Planned Parenthood and Parenthood Education admitted that the requirement of prior informed consent to sterilisation had been absent from the regulatory framework in Slovakia at the relevant time. However, in the case of Roma women it was frequently the only opportunity for medical personnel to inform them about contraception and sterilisation shortly before or during delivery. According to the opinion, the medical practitioners involved in sterilisations acted in good faith and in accordance with the law in force. 78. In a letter dated 3 February 2003 the director of Krompachy Hospital contested the allegation that Roma women had been forcibly sterilised in his hospital. The letter contained the following information. 79. In the area covered by Krompachy Hospital the post-natal mortality rate of Roma children had fallen from twenty-five per thousand in 1990 to five per thousand in 2002. The majority of deliveries in the hospital concerned Roma women; the perinatal mortality rate was around 10 per thousand, approximately the same as in other hospitals within the region. 80. The Roma settlement in R. (where the first and second applicants lived) was outside the area served by Krompachy Hospital. However, its staff did not refuse to treat inhabitants of that settlement, as it was closer than the hospital to which they administratively belonged. Between 1990 and 2003 150 women from R. settlement had given birth by vaginal delivery and eighteen Roma women (that is, 12%) had delivered by Caesarean section. The ratio was around 15% nationwide. 81. During the same period 801 Roma women had given birth in the hospital, of whom seventy-five (that is, 9.3%) had undergone a Caesarean section. There had been a further 768 deliveries by women who were not of Roma origin. Of the latter, 139 women (that is, 18%) had delivered by Caesarean section. 82. Between 1999 and February 2003 there had been twenty-eight sterilisations performed on women of Roma origin and sixty-five sterilisations of non-Roma patients. All patients had been duly advised and had signed the relevant request. 83. Furthermore, Krompachy Hospital had carried out ninety-six procedures on Roma women who were experiencing difficulty in conceiving. In several cases the patients had become pregnant thereafter. 84. The letter also mentioned the case of a Roma woman who had delivered her eighth child in 1998. As she had been brought to the hospital in a state of shock, the staff could not inform her about sterilisation prior to delivery, which was carried out by Caesarean section. No sterilisation was performed and she was subsequently advised to undergo sterilisation after the post-natal period. The patient did not follow the medical advice. One year later she was brought to the hospital with bleeding, fourteen days after the scheduled date of delivery of her ninth child. Due to severe haemorrhagic shock she could not be saved. 85. The relevant domestic law and practice, as well as pertinent international documents, are set out in detail in V.C. v. Slovakia, cited above, §§ 57-86 and N.B. v. Slovakia, no. 29518/10, §§ 49-56, 12 June 2012. 86. In addition, the following information is relevant in the present case. 87. The relevant provisions of the Civil Code read as follows: “1. Everyone shall be liable for any damage he or she causes by breach of a statutory duty. 2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity” ... “Indemnification for damage to health shall consist of a lump-sum payment for suffering and impairment of one’s position in the society.” 88. In November 2009 the UN Committee Against Torture considered its second periodic report on Slovakia, which covered the period from 1 January 2001 to 31 December 2006. In its concluding observations the Committee expressed deep concern about allegations of continued involuntary sterilisation of Roma women. It recommended that Slovakia should: “(a) Take urgent measures to investigate promptly, impartially, thoroughly and effectively all allegations of involuntary sterilization of Roma women, prosecute and punish the perpetrators and provide the victims with fair and adequate compensation; (b) Effectively enforce the Health-care Act (2004) by issuing guidelines and conducting training of public officials, including on the criminal liability of medical personnel conducting sterilizations without free, full and informed consent, and on how to obtain such consent from women undergoing sterilization.”
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train
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001-23156
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ENG
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GRC
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ADMISSIBILITY
| 2,003
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DELI HATZOGLOU v. GREECE
| 4
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Inadmissible
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Françoise Tulkens
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The applicant, Mr Mehmet Deli Hatzoglou, is a Greek national, who was born in 1956 and lives in Xanthi. The Government are represented by Mr M. Apessos, Senior Adviser at the State Legal Council, and Mr D. Kalogiros, Legal Assistant at the State Legal Council. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were no different from those of other civil servants. On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which were to be delivered to the directors of the schools between 2 and 5 February 1993. A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi. On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace. On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott. On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993. On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning their posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993. On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights. On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993. On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him. On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties. On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following: – Firstly, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attendance at the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become an agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code). – Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed a lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code). – Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code). The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as a civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant. On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers. On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Supreme Administrative Court. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment was aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty. On 22 June 1995 the Supreme Administrative Court rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The court considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The court also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Supreme Administrative Court remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The court considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The court found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The court referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The court considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous, albeit unwarranted, disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. Finally, the court considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3592/1995). On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3592/1995 of the Supreme Administrative Court, ordered the applicant’s dismissal as from the same date. On 4 April 1996 the Supreme Administrative Court struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1721/1996). On 2 December 1997 the Prefect ordered for the third time the applicant’s dismissal. On 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by decision of a Prefect was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1. On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated religious freedom. Moreover, the court held that the Prefect’s decision was aimed at complying with the relevant decisions of the Supreme Administrative Court; therefore, the prior hearing of the applicant was not required. The applicant did not appeal against this decision to the Supreme Administrative Court. The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims were statute-barred. On 2 September 1997 the applicant instituted proceedings also before the First Instance Administrative Court of Komotini. On 28 December 2001 the court awarded the applicant EUR 3,965 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.
| 0
|
train
|
001-4523
|
ENG
|
SWE
|
ADMISSIBILITY
| 1,999
|
PEDERSEN v. SWEDEN
| 4
|
Inadmissible
|
Josep Casadevall
|
The applicant, a Norwegian citizen born in 1964, resides in Tanumshede, Sweden. Before the Court she is represented by Mr Jan Palmblad, a lawyer practising in Strömstad, Sweden. The applicant and A.V. have two children: a son, A, born in 1983, and a daughter, H, born in 1984. Following the parents’ divorce in 1990, the children lived with their mother, the applicant, and had regular contacts with A.V. who lives in Norway. The applicant later started a relationship with H.E. who moved in with the applicant and the two children. In September 1995 it was discovered that he had sexually assaulted H and in November 1995 he was convicted and sentenced to one year in prison. As a consequence, during the period of September 1995 – May 1996 the social authorities in Tanum made an investigation of the family’s situation. On 16 June 1996 A.V. removed the children from their home against the applicant’s will. The applicant then instituted proceedings in the Court of Enforcement (namsretten) of Hadeland and Land, invoking the 1980 Hague Convention on the Civil Aspects of International Child Abduction and requesting that the children be returned to her. On 31 July 1996 the court gave a decision in her favour and on 11 August 1996 the children were returned to Sweden. On 20 November 1996 A.V. instituted custody proceedings in the District Court (tingsrätten) of Strömstad, requesting that custody of H be transferred to him. The District Court ordered the social authorities in Tanum to submit an opinion in the case, which they did on 5 December 1996. The opinion contained factual information on the family’s situation but did not express any preference as to which parent should be awarded custody. The District Court held an oral hearing on 10 December 1996. The applicant, A.V. and their respective lawyers were present at the hearing. By an interim decision of 17 December 1996 the court decided that, pending the final determination of the custody issue, H should continue to live with the applicant. A.V. appealed against the interim decision to the Court of Appeal (hovrätten) for Western Sweden. The applicant requested that the appellate court hold a further hearing in the case. On 23 January 1997 the Court of Appeal rejected the request for a hearing, finding it unnecessary. It further quashed the District Court’s decision and prescribed that H should live with A.V. on an interim basis. No appeal lay against the appellate court’s decision. On 19 February 1997 the applicant filed a petition with the Supreme Court (Högsta domstolen), requesting that the Supreme Court reopen the interim issue or decide that the lack of a hearing in the Court of Appeal constituted miscarriage of justice (domvilla). By a decision of 28 February 1997 the Supreme Court rejected the applicant’s petition. On 29 May 1997 the social authorities submitted its opinion on the custody issue to the District Court. Noting that the social authorities recommended that A.V. be awarded custody of H, the applicant considered that there were little prospects of success in the case. She proposed therefore that she and A.V. should continue to have joint custody of H but that H should live with A.V. An agreement to this effect was signed by the applicant and A.V. on 30 June 1997. Subsequently, at the request of both parties, the District Court struck the case out of its list of cases.
| 0
|
train
|
001-57817
|
ENG
|
CHE
|
CHAMBER
| 1,993
|
CASE OF W. v. SWITZERLAND
| 3
|
No violation of Art. 5-3
|
Franz Matscher;John Freeland
|
7. The applicant is a Swiss businessman who with eleven accomplices was prosecuted for a series of economic offences, including a large number of frauds in the management of some sixty companies. He was arrested on 27 March 1985 and placed in pre-trial detention with six of his co-accused, on the grounds that there was a risk of absconding, collusion and repetition of offences. 8. The first complaints relating to him had reached the criminal police of the Canton of Berne in October 1982, inter alia following a number of fraudulent bankruptcies. In October 1984 the cantonal authorities asked the Interpol agencies in Germany, the United States of America, the United Kingdom, Monaco and several Caribbean countries to make inquiries about the applicant, and opened a preliminary investigation against him on 8 February 1985. In view of the complexity of the case they set up in mid-1985 a subsection of the office of the investigating judge (Untersuchungsrichteramt) of the Canton of Berne, consisting of two investigating judges assigned exclusively to the investigation, under the authority of a cantonal attorney at the Berne Court of Appeal (Obergericht) and the indictments chamber (Anklagekammer) of that court. They were assisted by specialist police officers and considerable facilities were made available to them (secretariat, computer, archives). 9. In the period from March 1985 to June 1986 their investigation, which traced events back as far as 1977, gave rise to eighteen searches, including several at W.’s residence and the office of the companies he controlled. Documents in large quantities were found there, mostly in utter disorder, some in the cellar, some in the bathroom and even some in bin bags ready to be destroyed. W. had in fact altered the accounts of his companies, some of which were incidentally fictitious, in order to thwart possible investigations. On 3 April 1985 the authorities froze assets in seventeen banks and issued warrants relating to other credit institutions. They drew up a list of about two hundred accounts in all which were affected by the fraudulent dealings of the applicant and his accomplices. In 1985 and 1987 money and valuables belonging to the applicant and his co-accused were seized following orders or searches. These were dated 27 and 28 March, 3 April, 4 May, 2, 3 and 27 June, 5 September, 3 October and 25 November 1985, 16 and 19 January, 9 February, 5 March, 14 May, 2 July, 19 and 21 August and 1 December 1987. The investigators also had to have recourse to international judicial assistance, in particular from the Munich public prosecutor’s office. That office sent them a report dated 16 April 1987, as a result of which the Swiss authorities extended their inquiries to Germany and took over criminal proceedings instituted against W. in that country. On 11 December 1987 the investigating judges requested thirteen insolvency practitioners to provide documents relating to seventeen companies. The last of these reached them in December 1988 and January 1989. On 26 May 1988, in view of the urgency, they severed the proceedings against the applicant from those against two accomplices. 10. The applicant twice challenged the investigating judges. He also brought eleven appeals and two complaints against decisions by them restricting access to the case-file at the beginning of the investigation. The accused were eventually given access to nine-tenths of the file from May 1986 and the entire file from 22 October of that year. W. had meanwhile reacted by deciding on 11 April 1986 to make no further statements. On 28 June 1988 he complained of other irregularities, stating that documents had not been given to him and his lawyer had been unable to obtain free photocopies of them. The indictments chamber dismissed his complaint on 27 July 1988. After the committal for trial (see paragraph 13 below) the authorities on 13 October and 30 November 1988 and 3 January 1989 allowed the case-file to be consulted by the defence for nine, seven and five half-days respectively. There was another incident when W. was not permitted to be present at certain investigative acts. On 27 January 1987 the indictments chamber decided that in principle he had the right to attend these. His request of 18 December 1987 that there should be no supervision of the visits by his wife was dismissed by the indictments chamber on 16 February and the Federal Court on 19 May 1988. 11. During his pre-trial detention W. committed further offences, which resulted in an additional conviction for fraudulent bankruptcy and criminal mismanagement (see paragraph 24 below); the general meeting of a company controlled by him, which took place in prison on 11 October 1985 in the presence of a lawyer (advocate and notary), had allowed the latter to use a power of attorney to issue bonds secured on the property of the said company and used as security for the applicant’s personal debts. 12. Once the basic documentation had been collected and sorted, the authorities in October and July 1986 also ordered three expert reports, one from a psychiatrist and two from accountants, the latter following a defence request for evidence of 6 September 1985, the only such request made by them in the course of the investigation. The reports were filed on 22 December 1986 and in April 1987. The psychiatric report concluded that the applicant was fully criminally liable, and described him as a confidence trickster (Hochstapler) and an unrestrained hedonist (hemmungsloser Hedonist) who had no scruples about causing harm to others. 13. On 29 April 1988 the investigating judges declared, pursuant to Article 98 of the Berne Code of Criminal Procedure (see paragraph 25 below), that they would request the cantonal attorney’s office to commit W. for trial before the Economic Criminal Court (Wirtschaftsstrafgericht) of the canton. The order committing for trial (Überweisungsbeschluß) was made on 2 September 1988. The investigators had carried out a total of approximately 350 interrogations. From 11 April 1986 to 12 July 1988 the applicant himself had been questioned thirty-six times, but he had always refused to answer the questions put to him (see paragraph 10 above). The transcripts recording the questions and noting his silence filled almost 700 pages. In September 1987 the main case-file comprised about 600 binders. At the time of the trial there were 711, together with the original documents which themselves took up over 120 metres of shelving. The amount of the damage had been estimated at over 50 million Swiss francs. 14. From 29 March 1985 to 18 May 1988, twenty-five applications for release were submitted by the persons in pre-trial detention in this case. Eight of them came from the applicant. The first of these, made on 24 May 1985, was dismissed by the indictments chamber on 1 July. The indictments chamber also dismissed on 22 July 1985 a complaint of 8 July and on 28 August a complaint of 2 August, relating respectively to the lawyer who had been appointed for W. and his visiting rights. 15. On 13 September 1985 the indictments chamber turned down a further application of 26 August 1985. A public law appeal to the Federal Court was dismissed on 7 November 1985, as that court considered that all the conditions to which pre-trial detention was subject under Article 111 of the Berne Code of Criminal Procedure had been fulfilled (see paragraph 25 below). The court felt that the serious suspicions against W. were supported by the case-file; moreover, he had transferred his residence to Monte Carlo, and his numerous stays in Germany, England, the United States of America and Anguilla also gave reason to fear that he might try to evade the Swiss judicial authorities; as to the very genuine risk of collusion, this resulted from the way in which the applicant’s various companies were entangled and from the large number of his associates. The Federal Court, however, invited the investigators to act with diligence and in particular to question as soon as possible the persons likely to collude with the applicant, as in the court’s opinion the complexity of the facts alone could not justify detention for several years. 16. W. brought a third application for release on 17 March 1986. It was dismissed by the indictments chamber in a decision of 4 June 1986, which was upheld by the Federal Court on 25 August, following a public law appeal. The Federal Court said that even a summary reading of certain transcripts of interrogations showed that there was serious suspicion against the applicant of multiple fraud and fraudulent bankruptcy; he was wrong in claiming that this suspicion was unfounded in the specific cases cited by the indictments chamber in justifying the already considerable duration of the detention in issue. Moreover, the danger of absconding and that of collusion still both persisted, the former because of the applicant’s good relations with foreign countries and his stated intention of starting a new life in the United States, and the latter in the light of his conduct before his arrest and during the investigation. However, as the last of the co-accused had now been arrested and the principal witnesses had already made statements, this ground could no longer be relied upon without specifying the collusive acts which were feared. Furthermore, W. was primarily responsible for the length of his detention; the lack of any proper accounts of his companies had made it extremely difficult to identify the financial transfers by means of which the companies had been burdened for personal ends. Despite this, the investigating judges had worked intensively. All things considered, the detention complained of did not yet appear to be too long. It was nevertheless disturbing that not much progress had been made with the systematic processing of the documents and the production of a report for the purpose of indicting the applicant. Secondly, there was still some doubt as to whether expert reports on the accounting and psychiatric aspects were needed. A close watch had to be kept on these points. 17. A fourth application for release was made on 12 December 1986, and dismissed by the indictments chamber on 20 January 1987. The applicant brought a public law appeal against this decision; he complained of the time taken to produce the accounting report, and of the alleged inability of the authorities to complete the file. The Federal Court gave its ruling on 24 March 1987. It considered that the applicant’s disregard of the elementary rules of bookkeeping was the reason why it had not been possible to complete the expert report earlier; and the accusation against W. was precisely that he had mingled funds of his various companies. Since the judgment of 25 August 1986 (see paragraph 16 above) the authorities had taken account of its observations on the processing of the documents, so that in this respect the investigation could not be criticised, bearing in mind in particular the very large number of documents to be classified. That the authorities had entrusted the investigation to a team of two investigating judges also showed the great importance they attached to it. As to the psychiatric report and accountancy reports, which were moreover on the point of being filed, there had been no delay in drawing them up, since W. was refusing to answer any questions at all. In short, the detention in issue had not yet exceeded the maximum period allowed. The court added, however: "... a practice according to which an accused who was suspected of serious economic offences but not of acts of violence necessarily had to remain in detention until final judgment in his case, merely because of a general risk of absconding, would not be compatible with the fundamental right of personal freedom ... . It should also be taken into account in this respect that the incentive to abscond generally decreases as the proportion of time already spent in detention increases. The investigating judges, the public prosecutor’s office and the indictments chamber will therefore, after carrying out the few investigative acts in respect of which a certain danger of collusion can still be presumed, but at the latest after a period of detention of two and a half years, have to consider the applicant’s release subject to appropriate substitute measures within the meaning of Article 111a of the Berne Code of Criminal Procedure. The case would be different only if specific indications of [W.’s] intention to abscond were by then present. The risk of repeated offending ... would on the other hand probably not be of relevance as a ground for detention in the case of the applicant, who has no previous convictions." 18. On 3 August 1987 the applicant once more requested the indictments chamber to terminate his detention. This was refused in a decision of 4 September 1987. The Federal Court dismissed the applicant’s public law appeal on 29 October 1987. In its opinion the slowing down of the investigation, noted since its last judgment (see paragraph 17 above), was not open to criticism, as the Swiss authorities had in the meantime taken over the proceedings brought against W. by the Munich public prosecutor’s office (see paragraph 9 above), and this had entailed additional work. In this respect the investigators could not be blamed either for having often questioned the applicant on these proceedings despite his refusal to make a statement; their sole aim had been to allow W. to exercise his rights of defence. No failure to observe the requirement of acting swiftly had resulted; rather it was the applicant’s attitude which amounted to delaying the investigation by any legal means. In view of the minimum sentence of five years’ imprisonment which the applicant was likely to receive, the pre-trial detention of two years and seven months had in any event not yet reached the critical level. The Federal Court also invited the investigating judges to reconsider, by the end of January 1988, the length of the detention in issue. On 31 January 1988 they took a decision to extend it (Haftbelassungsbeschluß). 19. The applicant’s sixth application for release had meanwhile been made to the indictments chamber on 2 December 1987. It had dismissed it on 9 December on the grounds that nothing had changed since the Federal Court’s last judgment of 29 October 1987 (see paragraph 18 above); it considered that there was still a danger of absconding and collusion. W. did not appeal against this decision. 20. On 1 February 1988 he once more requested his release. The indictments chamber refused this on 18 February, and he appealed to the Federal Court. The Federal Court dismissed the appeal on 25 April 1988. It held that the indictments chamber had not breached the Constitution or the Convention in considering that there was still a danger of absconding; in his application of 1 February 1988, W. had moreover refused to provide a security. Apart from the applicant himself, the authorities were also partly responsible for the delays in the investigation; they had put forward in explanation reasons - such as the taking over of the German file (see paragraph 9 above) and the different charges against the various co-accused - which they had already been aware of on 13 August 1987, when they said that the investigation would be completed in early 1988. These delays admittedly had not brought about an excessive prolongation of the deprivation of liberty in issue, but in the Federal Court’s opinion it was necessary to close the investigation as quickly as possible. The Federal Court said: "The judge deciding on detention may prolong the pre-trial detention only to the extent that its duration does not come too close to the sentence to be expected in the specific case; he must not, for example, take the possible maximum sentence as a reference point. Great attention must also be paid to this limit because the trial court might be inclined to take the length of pre-trial detention into account as one factor in determining the sentence. To this extent there is thus a sort of absolute maximum length of pre-trial detention ... . However, even the European Convention institutions allow detention for several years in cases which are both highly complex and also subject to heavy sentences ..." In this instance the length of the detention had not yet reached the critical level, as the total sentence which could be expected was now considerably more than five years’ imprisonment. 21. On 18 May 1988 the applicant submitted his eighth application for release; he supplemented this on 7 June 1988 by offering a security of a maximum of 30,000 Swiss francs (CHF). The indictments chamber dismissed the application on 27 June 1988, inter alia on the grounds that he had not given any information on the third party who would pay the money and that the sum appeared derisory in view of the size of the case and the personality of the defendant. On a public law appeal by the applicant, the Federal Court quashed the decision on the grounds that Article 5 para. 4 (art. 5-4) of the Convention had been violated, as W. had not had an opportunity to reply to the arguments of the investigating judge and the cantonal attorney before the indictments chamber. 22. Rehearing the application, the indictments chamber on 6 September 1988 refused to release the applicant, who again appealed to the Federal Court. That court gave judgment on 15 November 1988; it considered that at this stage of the proceedings, after the end of the investigation and the committal for trial (see paragraph 13 above), pre-trial detention on the ground of a risk of collusion could only be justified by specific evidence, such as in this case the applicant’s personality and the numerous examples of forgery and interference with witnesses already shown to have been done by him in specific cases. It quashed the decision, however, on the grounds that the indictments chamber, when assessing the maximum permissible period of the detention in issue, had omitted to consider whether there were special circumstances in W.’s case which meant that the possibility of his conditional release should be taken into account. 23. On 10 January 1989 the indictments chamber dismissed the application of 18 May 1988 (see paragraph 21 above) for the third time. The Federal Court upheld its decision on 23 February 1989: having regard to the number and nature of the offences the applicant was accused of, and to his conduct during the investigation and the conclusions of the psychiatric report (see paragraph 12 above), the indictments chamber had been right to conclude that there were no reasons making conditional release appear very probable. 24. The trial before the Economic Criminal Court (see paragraph 13 above) opened on 17 February 1989 and ended on 30 March 1989 with the applicant being convicted and sentenced to eleven years’ imprisonment and a fine of CHF 10,000, for offences including fraud on a professional basis (gewerbsmäßiger Betrug), fraudulent bankruptcy (betrügerischer Konkurs), forgery of documents (Urkundenfälschung) and aggravated criminal mismanagement (qualifizierte ungetreue Geschäftsführung). The 1,465 days spent in pre-trial detention were deducted from the main sentence. 25. The Code of Criminal Procedure (Gesetz über das Strafverfahren) of the Canton of Berne provides that: "When the investigating judge regards the investigation as sufficient, he shall notify this to the parties whose addresses are known. If it is for the investigating judge and the district attorney to decide on committal, the investigating judge shall state whether he intends to request that the proceedings be stayed or discontinued or the accused be committed for trial. The parties may, within a period from such notification determined by the judge, apply in writing, giving brief reasons, for specified further investigative measures or additional questions and express their opinion on the outcome of the proceedings. If the investigative measures applied for are ordered, the parties may be present at their implementation." "During the preliminary investigation the accused shall as a rule remain at liberty. The investigating judge shall however be empowered to arrest him if there are specific and serious grounds for suspecting him as perpetrator or accomplice, and in addition there are reasons for supposing (a) that there is a risk of absconding, or (b) that the accused would abuse his liberty in order to frustrate or endanger the discovery of the true facts of the matter, or (c) that the accused, if he has intentionally committed a further criminal offence (Verbrechen oder Vergehen) during the proceedings, will commit further criminal offences. A risk of absconding shall be presumed if the accused has no fixed residence in Switzerland. ..." 26. According to the Swiss Federal Court, the unwritten constitutional right to individual freedom is to be interpreted in the light of Article 5 para. 3 (art. 5-3) of the Convention and the case-law of the Strasbourg institutions, and requires that pre-trial detention must not be excessively prolonged. Each case must be assessed individually, with the accused’s right to liberty being balanced against the State’s right to bring criminal proceedings and enforce sentences. If the length of the detention is excessive, the detainee must be released even if serious suspicions and the danger of absconding still subsist (Decisions of the Swiss Federal Court, 108 Ia 66; 107 Ia 257/258; 105 Ia 29/30).
| 0
|
train
|
001-70094
|
ENG
|
UKR
|
CHAMBER
| 2,005
|
CASE OF GUREPKA v. UKRAINE
| 3
|
Violation of P7-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
| null |
4. The applicant was born in 1956 and lives in the city of Simferopol, the Autonomous Republic of Crimea, Ukraine. 5. In the course of civil proceedings for defamation brought by a Member of Parliament in which the applicant was a co-defendant, the applicant was summoned to a court hearing in April 1998 (exact date unknown). According to the applicant, the summons was never served on him properly, and the postman later confirmed this. 6. On 18 May 1998 the court imposed a fine of UAH 17 on the applicant for his failure to appear. The court also indicated in its decision that the applicant could appeal within ten days. According to the applicant, he received this decision on 28 May 1998. 7. On 3 June 1998 the applicant lodged an appeal against the decision of 18 May 1998. In his appeal the applicant did not indicate the reasons for lodging it outside the time-limit and did not request its extension. On 5 June 1998 the Kievskiy District Court of Simferopol rejected the appeal as having been submitted too late. 8. On 12 July 1998 the applicant lodged with the Highest Court of the Autonomous Republic of Crimea (hereinafter the “HCARC”) an appeal against the decision of 5 June 1998 together with a request for the composition of the first instance court to be changed. In January 1999 the applicant was informed that the HCARC had only received the request but not the appeal. 9. Within the framework of the same set of civil proceedings, the applicant was summoned to appear before the court on 9 October 1998. The applicant maintains that he informed the court in advance that he would not be able to attend because of his holiday plans. On 8 October 1998 the applicant requested Mr B. to inform the judge that he could not attend the hearings due to his illness. According to Mr B., he did so on 9 October 1998. The court nevertheless decided to institute administrative proceedings against the applicant for his repeated failure to appear before the court. 10. On 1 December 1998 the court decided in the applicant's presence to impose seven days' administrative detention on him for contempt of court, as manifested by his repeated failure to appear. The court found that the applicant was at his place of work on the day of the hearings, as confirmed by his employer – the Prosecutors' Office of the Autonomous Republic of Crimea (hereinafter the “POARC”). The court found no evidence in the case file indicating that the applicant had officially informed the court of any good reason for his absence. It disregarded the sick leave certificate produced by the applicant for the date in question. 11. The same day the applicant was arrested and placed in a cell, which he described as cold. 12. The applicant's arrest was covered by the local press in December 1998. 13. On 2 December 1998 the POARC lodged an extraordinary appeal (protest) with the HCARC. This appeal suspended the enforcement of the decision of 1 December 1998 and the applicant was released after spending 16 hours in detention. 14. In its appeal the POARC did not dispute the fact that the applicant had committed an administrative offence, but considered that the applicant had to be sanctioned under the Disciplinary Statute of the Prosecutor's Office rather than under administrative proceedings. 15. On 3 December 1998 the President of the HCARC rejected this appeal. 16. From 7 to 21 December 1998 the applicant was in hospital suffering from an acute form of chronic urological disease. According to the applicant, this illness was caused by his detention in the cold cell on 1 December 1998. 17. On 10 December 1998 the applicant lodged a request with the HCARC for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 29 January 1999 by the President of the HCARC. 18. From 25 to 31 December 1998 the applicant served the remainder of the administrative detention. 19. On 4 January 1999 the applicant was dismissed from his position as a prosecutor attached to the POARC. 20. On 21 January 1999 the applicant lodged a further request with the Supreme Court of Ukraine for an extraordinary review of the decisions of 18 May, 5 June and 1 December 1998. This request was rejected on 24 March 1999. 21. In October 2001 the applicant was diagnosed with Hepatitis C, which he believed he could have contracted in the prison or in the hospital in December 1998. 22. In 1996, the former Prosecutor of the Autonomous Republic of Crimea, Mr K., lodged a claim with the Simferopolskiy District Court of the Autonomous Republic of Crimea against the applicant for defamation. On 6 June 2000 the court found against the applicant and ordered him to pay UAH 10,000 in compensation for moral damage. The applicant was not present at the final court hearing. 23. On 20 September 2000 the Simferopolskiy District Court rejected the applicant's cassation appeal as having been submitted too late. 24. In October 2000 the applicant lodged a request for extraordinary review with the President of the HCARC. The Deputy President of the court allowed this request and lodged an extraordinary appeal with the court. 25. On 2 February 2001 the plenary of the HCARC allowed the appeal. The decision of 6 June 2000 was quashed in part on the ground that some of the matters covered by that decision had been finally decided within the framework of other proceedings. The court also reduced the amount of the fine to be paid by the applicant to UAH 1,000. 26. On 6 December 2001 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal under the new cassation procedure. 27. Paragraph 4 of Article 172 of the Code foresaw that, in the event of a failure of a party to the proceedings to appear before a court without valid reasons, and if such failure led to the postponement of court hearings, the court could impose on the person a fine of one instalment of the “minimum non-taxable income” (UAH 17). 28. Article 32 of the Code provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of 15 days. 29. Paragraph 1 of Article 185-3 of the Code foresaw punishment by a fine or administrative detention for up to 15 days for contempt of court, manifested, inter alia, by a repeated failure to comply with a summons to appear. 30. Article 287 of the Code provided that the decision imposing an administrative sanction could be appealed, except for the decisions given by the first instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provided otherwise. 31. Article 290 of the Code provided that the prosecutor could lodge an extraordinary appeal (a “protest”) against a decision imposing an administrative sanction. 32. Article 294 of the Code provided that a court decision on an administrative offence could be reviewed by the judge of the same court upon an extraordinary appeal lodged by a prosecutor, or by a judge of a higher court on his or her own motion.
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train
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001-95065
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ENG
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UKR
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CHAMBER
| 2,009
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CASE OF ROTAR v. UKRAINE
| 4
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Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
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Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
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4. The applicant was born in 1951 and lives in Oleksandriya. 5. The State owns 26,1% of the share capital in the company Oleksandriyske Avtotransportne Pidpryyemstvo 13506 (“the company”), which is therefore subject to the moratorium on the forced sale of property of entities in which the State holds no less than 25% of the share capital, barring the attachment and sale of its assets. 6. On 17 March 2004 the Kirovograd Regional Commercial Court started insolvency proceedings against the company. 7. On 31 August 2004 the Oleksandriya Court ordered the company to pay the applicant 7,021.29 Ukrainian hryvnas (UAH) in salary arrears and compensation. The amount represented the salary due to the applicant after deduction of income tax. The judgment became final, but remains only partially enforced, the outstanding debt being UAH 6,114.29.
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train
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001-76493
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ENG
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RUS
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CHAMBER
| 2,006
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CASE OF BAZORKINA v. RUSSIA
| 2
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No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 2-1 - Life;Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Inhuman treatment;Prohibition of torture);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award
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Christos Rozakis
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9. The applicant was born in 1938 and lives in the town of Karabulak, Ingushetia. The complaint is also brought in respect of the applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, born in 1975. 10. The facts surrounding the disappearance of the applicant’s son were partially disputed. In view of this the Court requested that the Government produce copies of the entire investigation file opened in relation to Khadzhi-Murat Yandiyev’s disappearance. 11. The parties’ submissions on the facts concerning the circumstances of the apprehension and disappearance of the applicant’s son and the ensuing investigations are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B. 12. The applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, was born on 27 August 1975. Until August 1999 he was a student at the Moscow Sociology University. The applicant submits that he left the University in August 1999 before completing his final year of studies. One of his classmates told the applicant that her son had travelled to Grozny, Chechnya. The applicant believes that he wanted to find his father, who had apparently gone there. She has not heard from her son since August 1999. 13. In autumn 1999 hostilities began in Chechnya. After Grozny was captured by federal forces in late January - early February 2000, a large group of Chechen fighters left the city and moved south-west towards the mountains. En route the fighters, and anyone leaving the city with them, encountered mine fields. Many people sustained injuries, especially to their feet and legs. Many of the wounded were treated in a hospital in the village of Alkhan-Kala (also called Yermolovka), which was taken by the Russian military in early February 2000. 14. On 2 February 2000 the applicant saw her son on a news broadcast about the capture of Alkhan-Kala by the Russian forces. He was wearing camouflage uniform and was being interrogated by a Russian officer, who was also wearing camouflage. 15. The applicant later obtained a full copy of the recording, made by a reporter for the NTV (Russian Independent TV) and CNN who had entered Alkhan-Kala with the federal troops. A copy of that recording and a transcript of the interrogation have been submitted to the Court by the applicant. 16. The recording shows the applicant’s son, who is standing near a bus with wounded men. The bus is surrounded by Russian soldiers and the wounded are being removed from the bus. A passing soldier pushes the applicant’s son on his right leg; he winces with pain. He is speaking in a low voice and his words are barely audible. The officer questioning him is speaking in a harsh voice. The following is a translation of the relevant parts of the transcript: “Officer: - Turn your face [to me]! Turn it properly. Who are you? The detainee answers something, but the words are not audible. Officer: - What did you say? From Ingushetia? - / The detainee says something about Nazran/ - From Nazran? Where do you live in Nazran? Another serviceman who is standing nearby orders: Hands out of your pockets! ...The officer takes something - identity documents - from the pocket of the detainee’s camouflage jacket, and inspects them, asking questions. The answers are not audible. Officer: - What is your last name? What is your first and patronymic name? The detainee: - Born on 27 August 1975. Another officer: - Alexander Andreyevich, we need to get the convoy group ready. We have to take all three buses there. The officer takes something out of a small leather packet, wrapped in cellophane, that was among the detainee’s papers [apparently, a compass], and shows it to somebody: - There, you see! A solid, trained fighter. He puts the device back into the packet and wraps it in cellophane. Another officer asks: - Where did you leave your arms? The detainee, shown with his head to the side: - My weapons were left over there.... /Says something about a mine field. / The second officer repeats: In a mine field? ...The officer, pointing at his camouflage jacket: - From which soldier did you take this? From a federal soldier? From [one of] your soldiers? The detainee says something to the effect that it was given to him. He says something about “fighting against”. The officer: - Fighting against whom? Fighting against such [people] as here? Why did you come here? People are dying because of you! The detainee: - Because of me? The officer: - Of course! The detainee: - People are dying... The officer: - Take him away, damn it, finish him off there, shit, - that’s the whole order. Get him out of here, damn it. Come on, come on, come on, do it, take him away, finish him off, shoot him, damn it... The detainee is led away by two soldiers”. 17. The video also shows Russian military equipment and other wounded detainees. They are taken out of the buses or remain inside; many have their feet and legs wrapped in bandages or cellophane. The video also contains interviews with the villagers of Alkhan-Kala, who say that the village was shelled on the previous day. 18. The CNN journalists who filmed the interrogation later visited the applicant in Ingushetia and identified the interrogating officer as Colonel-General Alexander Baranov. 19. After seeing her son on the news broadcast on 2 February 2000, the applicant immediately began searching for him. She has had no news of him since. 20. She applied on numerous occasions to prosecutors at various levels, to the Ministry of the Interior and the Ministry of Justice, to the Special Envoy of the Russian President for rights and freedoms in the Chechen Republic, and others. She also personally visited detention centres and prisons in Chechnya and other regions in the Northern Caucasus. 21. Acting on the applicant’s behalf, the NGOs Human Rights Watch and Memorial and the Head of the OSCE mission in Chechnya forwarded requests for information about her son to various bodies. 22. The applicant received very little substantive information from official bodies about the investigation into her son’s disappearance. On several occasions she received copies of letters from various authorities directing her complaints to the Military Prosecutor’s Office for the Northern Caucasus, to the Grozny District Prosecutor’s Office and to the military prosecutor of military unit no. 20102. 23. On 18 August 2000 the Main Prisons Directorate of the Ministry of Justice (GUIN, Главное Управление исполнения наказаний Министерства Юстиции РФ, ГУИН) informed the applicant that her son was not being held in any prison in Russia. The applicant was advised to apply to the Ministry of the Interior. 24. On 1 November 2000 the Special Envoy of the Russian President for rights and freedoms in the Chechen Republic replied to the Head of the OSCE mission in Chechnya, stating that the applicant’s son was listed as no. 363 in the list of missing persons compiled by his office following citizens’ complaints. On 1 November 2000 his office had forwarded a request for information in respect of Yandiyev’s whereabouts to the Prosecutor General. 25. On 24 November 2000 the military prosecutor of military unit no. 20102 in Khankala, where the headquarters of the Russian military forces in Chechnya were based, returned the applicant’s complaint to the Grozny District Department of the Interior, with a copy to the applicant. The accompanying letter stated that there were no grounds to apply to the military prosecutor’s office, because the “attached materials did not corroborate the involvement of any military servicemen in the disappearance of the applicant’s son”. 26. On 30 November 2000 the military prosecutor of military unit no. 20102 replied to the NGO Memorial that, following examination of its submissions, it had been concluded that “Yandiyev’s corpse had never been discovered and it did not follow from the videotape that he had been killed, as the videotape did not contain such facts.” Consequently, it was decided, under Article 5 part 1 of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of a criminal act. In a similar reply to Memorial, dated 30 December 2000, the same military prosecutor stated that there were no grounds to conclude that military servicemen had been responsible for the actions shown in the videotape. 27. On 8 December 2000 the Chechnya Prosecutor informed the Special Envoy about progress being made in several cases, including that involving a videotape “where an officer of the federal forces orders the execution of a wounded fighter. The latter was identified by his relatives as Yandiyev Kh. S. The said videotape has been forwarded to the military prosecutor of military unit no. 20102 for checking and investigation under Article 109 of the Criminal Procedural Code”. 28. On 18 December 2000 the Moscow bureau of Human Rights Watch sent a letter to the General Prosecutor with the following questions: “(1) Was a criminal investigation opened into Yandiyev’s disappearance? (2) Was the identity of the interrogating officer established? (3) Was he questioned? If not, why not? (4) Were the whereabouts of Yandiyev established, in particular if he was still alive? (5) Was the interrogating officer or anybody else charged with Yandiyev’s “disappearance”? If a criminal investigation into Yandiyev’s “disappearance” and ill-treatment has not been opened, please open such an investigation.” 29. On 29 December 2000 and 24 January 2001 the Military Prosecutor’s Office for the Northern Caucasus informed the applicant and Human Rights Watch that their complaints had been forwarded to the military prosecutor’s office of military unit no. 20102. 30. In February 2001 two individuals, I. and B., submitted affidavits to the head of the Karabulak District Department of the Interior, in which they stated that on 2 February 2000 Khadzhi-Murat Yandiyev had been detained in Alkhan-Kala by federal troops. The affidavits did not contain the addresses of I. and B. and did not explain how they became aware of Yandiyev’s detention. 31. On 13 February 2001 the Chechnya Prosecutor wrote to Memorial acknowledging receipt of the videotape depicting Khadzhi-Murat Yandiyev’s interrogation. The videotape had been forwarded to military unit no. 20102 for the purposes of the investigation. 32. On 13 and 27 February 2001 the military prosecutor of military unit no. 20102 forwarded all requests pertaining to the case to the Grozny District Department of the Interior. 33. On 16 May 2001 Human Rights Watch wrote to the Military Prosecutor’s Office for the Northern Caucasus, asking the prosecutor to quash the decision by the military prosecutor of military unit no. 20102 not to open a criminal investigation. The letter referred to the contents of the videotape and to the fact that Yandiyev had not been seen subsequently. It again requested that the officers who appeared in the recording be identified and questioned. In reply, on 31 May 2001 the Military Prosecutor’s Office wrote that an inquiry would be conducted. On 22 June 2001 it informed Human Rights Watch that all the documents pertaining to the case had been transferred to the Grozny District Department of the Interior. 34. On 14 July 2001 a prosecutor from the Chechnya Prosecutor’s Office opened criminal investigation no. 19112 into the abduction of Khadzhi-Murat Yandiyev by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping). 35. On 17 August 2001 Human Rights Watch again sent a letter to the Chief Military Prosecutor. On 4 September 2001 he replied that the criminal case was being investigated by the local prosecutors’ office in Chechnya, which would inform the interested parties of its progress. 36. The applicant submits that in December 2001 she was visited at her home by certain persons who stated that they were carrying out a population census. They asked her and her neighbours about her son and whether he had returned home. The next day they returned and told her that they were from the Karabulak Town Prosecutor’s Office and that they had received documents from the Chechnya Prosecutor’s Office pertaining to her son’s disappearance. The applicant confirmed that her son was missing and that she had had no news of him. 37. On 23 October 2002 the SRJI asked the Chechnya Prosecutor for an update on the investigation into Yandiyev’s “disappearance” and possible killing. No response was given. 38. On 20 December 2002 the SRJI submitted a similar request for information to the General Prosecutor’s Office. On 4 February 2003 the General Prosecutor’s Office informed the SRJI that its letter had been forwarded to the Prosecutor’s Office for the Southern Federal Circuit. In March 2003 that Office informed the SRJI that its request had been forwarded to the Chechnya Prosecutor’s Office. 39. On 15 April 2003 the SRJI wrote to the military prosecutor of military unit no. 20102 and asked, with reference to its letter of 30 November 2000, for a copy of the decision by which he had refused to open a criminal investigation into the applicant’s complaint about her son’s possible murder. In June 2003 the military prosecutor responded that all documents related to the case had been forwarded to the Grozny District Temporary Department of the Interior (VOVD) on 24 November 2000. 40. On 7 December 2003 the investigator of the Grozny District Prosecutor’s Office informed the applicant that the investigation in criminal case no. 19112 had been resumed on 6 December 2003. On 6 February 2004 the applicant was informed by the same Office that the investigation had been adjourned for failure to identify the culprits. The applicant was informed that it was possible to appeal that decison. 41. The applicant submits that on 30 March 2004 she was visited at her home in Karabulak by two persons from the Grozny District Prosecutor’s Office who again questioned her about her missing son and about other members of her family. The applicant submitted a description of her son, but explained that she had run out of photographs of him because she had previously submitted them to various offices, including the prosecution service. The applicant signed the record of the questioning. 42. The applicant referred to the Human Rights Watch report of March 2001 entitled “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions” which reports Khadzhi-Murat Yandiyev’s story and his “disappearance” after detention by Russian servicemen. 43. In November 2003 the application was communicated to the Russian Government, which were requested at that time to submit a copy of investigation file no. 19112. In March 2004 the Government submitted 80 pages out of about 200. The Court on two occasions reiterated its request for the remaining documents, to which the Government responded that their disclosure would be in violation of Article 161 of the Code of Criminal Procedure, would compromise the investigation and would prejudice the rights and interests of the participants in the proceedings. 44. In September 2005 the Court declared the application admissible and reiterated its request for the remaining documents. In November 2005 the Government submitted a copy of the entire criminal investigation file, comprising five volumes (about 900 pages) and three volumes of attachments (about 700 pages). In addition, in January and March 2006 the Government submitted two more volumes of the latest documents from the criminal investigation file (comprising about 470 pages). 45. The investigation established that the applicant’s son had been detained on 2 February 2000 in Alkhan-Kala, together with other members of illegal armed groups. Immediately after arrest he was handed over to servicemen from the GUIN for transportation to the pre-trial detention centre in Chernokozovo, Chechnya. Khadzhi-Murat Yandiyev did not arrive at Chernokozovo and his subsequent whereabouts could not be established. As of July 2001 Yandiyev was placed on the search list as a missing person, and as of October 2004 his name was placed on the federal wanted list. In October 2004 a criminal investigation in respect of Khadzhi-Murat Yandiyev was opened by the military prosecutor of the United Group Alliance (UGA) under Article 208 of the Criminal Code – participation in an illegal armed group. 46. The applicant and her husband were questioned on several occasions and granted victim status in the proceedings. The investigation also identified and questioned a large number of eye-witnesses to and participants in the events, including servicemen from the army, the interior troops and the GUIN, journalists and local residents. Several witnesses confirmed that they had observed the encounter between Yandiyev and Colonel-General Baranov and that the latter’s words had been regarded by everyone present not as an order but as “a figure of speech” aimed at calming down Yandiyev, who had behaved in an aggressive and provocative manner and could have inspired disobedience among the detainees. After questioning Yandiyev had been taken away from the bus containing the other wounded and had been placed against the fence; he had remained there for some time. The file also contains a statement by General Nedobitko, who had been in charge of the operation and who denied that any summary executions had taken place. All servicemen present were questioned as witnesses. No one was charged with a crime. 47. Colonel-General Baranov was questioned twice about the events and stated that he had not given an order to “shoot” Yandiyev, but that he had intended to stop his aggressive behaviour and to prevent possible disturbances that could have ignited violence and entail further casualties among the arrested insurgents and the federal forces. 48. Several expert reports were carried out on the video recording in question, in order to establish its authenticity; to establish whether the conversation between General Baranov and Yandiyev could be regarded as a proper order given within the chain of command; to evaluate the psychological state of the persons depicted; and to conclude whether the General had insulted Yandiyev. The videotape was found to be authentic. An expert report also concluded that the words used by General Baranov could not have been regarded as a proper order issued to his subordinates within the military chain of command because of its inappropriate form and contents. 49. The investigation did not establish the fate of Yandiyev following his transfer to the GUIN servicemen on 2 February 2000. Various detention centres, military and law-enforcement bodies denied that his name had ever been on their records. Several men who were detained in Alkhan-Kala on 2 February 2000 stated that they had not seen Yandiyev after his detention. 50. Between July 2001 and February 2006 the investigation was adjourned and reopened six times. The case was transferred from the Chechnya Prosecutor’s Office to the Grozny District Prosecutor’s Office and then to the military prosecutor of the UGA. The majority of documents in the case file are dated after December 2003. 51. The parties submitted numerous documents concerning the investigation into the disappearance. The main documents of relevance are as follows: 52. The Government submitted the documents from the criminal investigation file into Yandiyev’s disappearance, comprised of over 2,000 pages. The main documents can be summarised as follows: 53. On 14 July 2001 a prosecutor from the Chechnya Prosecutor’s Office opened a criminal investigation into the abduction of Khadzhi-Murat Yandiyev, born in 1975, by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping). On the same date the criminal case was forwarded to the Grozny District Prosecutor’s Office for investigation, which accepted it on 19 July 2001. The case file was assigned no. 19112. In May 2004 the investigation was transferred to the military prosecutor of the UGA, where it was assigned case file no. 34/00/0020-04D. 54. The file contains the applicant’s letter of 30 May 2001 to the General Prosecutor, in which she stated the known facts concerning her son’s disappearance. She stated that, having seen her son on a news broadcast on 2 February 2000, she immediately set out for Alkhan-Kala. She reached there only on 6 February 2000, and was told that her son, who was listed among 105 detainees, had been transferred to Tolstoy-Yurt. On 8 February 2000 she arrived at Tolstoy-Yurt, where she was told that at 3 p.m. that day the detainees had been transferred to the Chernokozovo pre-trial detention centre. At Chernokozovo she was told that her son was not in their custody and that his name was not on their lists. The applicant had no further news of her son, and requested the prosecutor’s office to establish his whereabouts and to inform her if he had been charged with any crimes. 55. On 20 January 2002 the applicant was questioned in her home town. Her brief statement repeated the circumstances of her son’s disappearance and reiterated that she had had no news of him. On the same day the applicant was granted victim status in the proceedings. 56. Later the applicant was again questioned on several occasions. Her husband, Khadzhi-Murat Yandiyev’s father, was also questioned and confirmed her previous statements. 57. The investigators questioned the witnesses to the encounter between General Baranov and Khadzhi-Murat Yandiyev, including servicemen and journalists. 58. In December 2003 and January 2004 the investigation questioned several officers from special police forces (OMON) from the Novgorod region. They submitted, almost word for word, that from November 1999 to March 2000 they had been on mission in Alkhan-Kala and that in early February 2000 an operation had been carried out in the village. Their detachment was being held in reserve, but they were aware that a large group of fighters had entered the village, and several thousand federal troops, with support from aviation and armoured vehicles, had captured a large number of fighters – possibly about 700 persons. The operation was under the command of General-Major Nedobitko, the commander of a division of the interior troops, and was visited by Major-General Vladimir Shamanov, the head of the Western Zone Alignment. The Federal Security Service (FSB) and members of the military intelligence dealt with the detainees. 59. Several army servicemen stated in September and October 2005 that, on 2 February 2000, a group of senior officers headed by Colonel-General Baranov, who at the time had headed the UGA staff, had arrived in Alkhan-Kala by helicopter. They came because a large group of fighters, including casualties, had been detained. They were accompanied by journalists, including TV cameramen. They first visited the Alkhan-Kala hospital, where a large group of wounded fighters was found in the cellar. The cellar was dirty, the wounded were lying on the floor and there was a strong smell of decay. The soldiers deposited a large number of arms and ammunition collected from the fighters near the hospital. They then went to Alkhan-Kala’s central square to see a convoy of three or four buses containing fighters, some of them wounded. The buses were blocked on all sides by army vehicles and guarded by servicemen, who had already disarmed the men inside. Local residents had gathered to watch behind the security cordon. When the senior officers approached the buses they noticed one of the fighters near the first bus, who had been talking to a reporter. He was wearing a new army camouflage jacket and behaved in an aggressive and provocative manner, trying to instigate the detainees and local residents to disobey. The witnesses suggested that he had been under the influence of narcotics. Some witnesses also noted that he was wounded in the hip. Colonel-General Baranov talked to the detainee and calmed him down using harsh words, saying that he should be shot. He also found identity documents, a compass and a map in his pocket. The soldiers then took the detainee away from the bus containing the other fighters and placed him next to a metal fence about five metres away, where he remained calmly for an hour or an hour and a half. Colonel-General Baranov and other army officers left Alkhan-Kala after about an hour and a half, and the detained fighters were left in the charge of the GUIN servicemen. The witnesses stressed that Baranov’s words had not been regarded as an order, that Yandiyev had remained near the bus for a long time after the conversation and that, in any event, there had been far too many people around to issue or to carry out such an order. They also specified that most of the servicemen appearing in the videotape belonged to the Ministry of the Interior (OMON) or Ministry of Justice (GUIN) troops, and thus were not subordinate to a Colonel-General in the army. They denied that summary executions had taken place. 60. In May 2004 the investigation questioned General-Major Nedobitko who had headed the operation in Alkhan-Kala. He stated that the operation had been carried out by a joint group of the army, internal troops, police units from Chechnya and other regions and GUIN troops from the Ministry of Justice. Work with the detainees came within the competence of the GUIN units. He denied that the servicemen had committed summary executions. 61. Journalists and cameramen from NTV, RTR and the army’s press service stated that Yandiyev had told the reporters that he had been in charge of a small group of fighters. During the encounter with General Baranov he had behaved in a slowed-down manner, as if under the influence of narcotics. They also testified that Yandiyev had behaved aggressively and thus provoked General Baranov’s remarks. One reporter testified that after the conversation depicted in the videotape Yandiyev had been taken to a fence, where he remained for about 10 minutes, after which servicemen put him into an armoured personnel carrier (APC) and drove away. Other reporters stated that he remained by the fence for about an hour or more, until the group headed by Colonel-General Baranov had left. 62. In November 2005 the investigation questioned Ryan Chilcote, the CNN correspondent who had been at the scene on 2 February 2000. He stated that he had witnessed the dialogue between the wounded fighter, later identified as Yandiyev, and a high-ranking military officer, later identified as Colonel-General Baranov. He confirmed that although his Russian was weak, he could grasp the meaning of the conversation and had understood that the officer had questioned the fighter about his army jacket and later said that he should be “finished off”. He testified that he saw Yandiyev taken away by soldiers to an APC. 63. The investigation questioned Colonel-General Alexander Baranov as a witness on two occasions – in June 2004 and in September 2005. On both occasions he confirmed that he had a conversation with a young rebel fighter (“boyevik”), later identified as Yandiyev, who had been standing outside the bus with other fighters and who had been creating a disturbance by his statements. The witness stated that he had concluded from the fighter’s inadequate reaction that Yandiyev had been intoxicated, but as there was no smell of alcohol, he thought he might be under the influence of narcotics. The officer said that his harsh reaction had been caused by the detainee’s dangerous conduct, which could have incited other fighters and the villagers to disobey. In his first witness statement Mr Baranov claimed that the video footage had been altered to omit the fighter’s provocative statements. He stressed that the servicemen surrounding him were not his subordinates and thus could not have taken orders from him. In any event, nobody regarded his remarks as an order and Yandiyev was simply taken away from the bus and stood by the fence for a long time afterwards. The GUIN servicemen had dealt with the detainees and Mr Baranov had had no involvement in this. 64. A number of expert reports were carried out in the case. 65. In October 2004 experts from the Criminological Institute of the Federal Security Service (Институт криминалистики ФСБ) concluded that the videotape did not contain any signs of altering or editing of image or sound and that the voice which had given the order to execute Yandiyev was that of Mr Baranov. 66. In October 2005 a professor of linguistics at Moscow State Pedagogical University concluded that, although Colonel-General Baranov had used obscene words and expressions, these were not addressed directly at Yandiyev or anyone in particular and could not therefore be regarded as an insult. 67. In October 2005 a comprehensive psychological and psychiatric report carried out by two senior medical experts concluded that, judging by the video extract and other materials, the behaviour of both Colonel-General Baranov and Khadzhi-Murat Yandiyev on 2 February 2000 had been adequate to the situation and that neither had displayed any signs of weakening of mental performance. 68. In November 2005 an expert commission made up of three professors from military academies concluded that the extract in the videotape did not contain a valid order given within the chain of command due to its contents and improper form. In particular, the experts’ report recalled that orders had to comply with the Constitution and other legal acts and that they could only deal with matters which were relevant to the work of the military and were within the superior’s competence. Furthermore, orders could only be issued by a superior to an identified person under his command; they were to be given in a clear and unambiguous manner. None of these conditions had been met and therefore the report concluded that neither the Colonel-General nor any of the servicemen present at the scene could have regarded his words as an order. 69. The investigation collected a large amount of information about the persons detained on 2 February 2000 in Alkhan-Kala. It identified and questioned the servicemen who had participated in the operation and escorted the detainees to the detention centre, and also the drivers of the buses and other detainees. 70. Musa G., a resident of Alkhan-Kala, was questioned in June 2004 and October 2005. He stated that on 2 February 2000 he had tried to leave the village with his family in a PAZ bus. He was stopped by a group of armed men who ordered him to remove his belongings and to take the bus to the Alkhan-Kala hospital. At the hospital two other PAZ buses, also driven by villagers, were waiting. The armed men took wounded individuals out of the hospital and loaded them onto the three buses; the drivers were initially instructed to travel to Urus-Martan. However, they were not permitted to pass through a military roadblock at the exit of the village and returned to Alkhan-Kala. They were then instructed to go to Tolstoy-Yurt, where, as the witness understood it, the wounded were removed from the buses by servicemen from the Ministry of Justice. The witness identified Khadzhi-Murat Yandiyev from photographs and stated that he had seen that individual being placed in an APC in Alkhan-Kala and subsequently transferred to another APC at the military roadblock at the exit from the village. The witness also stated that he had seen how the servicemen searched the man and found a black flag with Arabic inscriptions. He did not see any ill-treatment of the man or of other detainees. He had not seen the man later identified as Yandiyev prior to 2 February 2000, not did he see him afterwards. 71. In May 2004 B. (see § 30 above) testified that he had known Yandiyev since their childhood in Grozny. In December 1999 and January 2000 he met him in Grozny on several occasions. At that time Yandiyev was wearing his hair long, had a beard and wore an army camouflage jacket, but he was not armed. At the end of January 2000 the witness left Grozny through a “safe corridor” towards Alkhan-Kala. En route the column was shelled and the witness was wounded in the right arm. In Alkhan-Kala he was admitted to hospital, where he again met Khadzhi-Murat Yandiyev, who had been wounded in the hip. On the morning of 2 February 2000 three buses were organised to take the wounded to the Urus-Martan hospital, but the convoy was stopped at a roadblock by the military and returned to Alkhan-Kala. There the buses were surrounded by servicemen and military vehicles and the men were taken out of the buses and searched. B. was placed by a metal fence with his back to the buses. He heard Yandiyev’s voice behind him and recalled that Yandiyev talked to some senior officer who ended the conversation by an order to “shoot” Yandiyev. The witness then saw Yandiyev being taken away. He and the other detainees were first taken to a “filtration point” in Tolstoy-Yurt, from where they were transferred to the Chernokozovo pre-trial detention centre about five days later. After that the witness was detained in two other pre-trial detention centres and was released in July 2000. He had not seen Khadzhi-Murat Yandiyev after 2 February 2000 and had no news of him. 72. The investigation obtained documents from the criminal investigation file opened in respect of B. The file contained a police report about his detention in Alkhan-Kala on 2 February 2000 on suspicion of participation in an illegal armed group. On 4 February 2000 B. was questioned in Tolstoy-Yurt and denied the charges. On the same day he was charged with participation in an illegal armed group and his detention was authorised by a prosecutor. In July 2000 the charges were dropped and B. was released under an amnesty granted to persons charged with participation in illegal armed groups in the Northern Caucasus who had not committed any serious crimes. 73. In December 2005 the investigation questioned two other men who had been detained in February 2000 in Alkhan-Kala and taken to Tolstoy-Yurt. One of them identified Khadzhi-Murat Yandiyev from a photograph and stated that he had seen that individual being taken out of a bus in Alkhan-Kala by servicemen. 74. In November 2005 the investigation questioned several servicemen from the Ministry of Justice, from various regions of Russia, who had been deployed in Alkhan-Kala in February 2000. They stated that although their units had not been involved in the transportation of the three buses, the detainees had been transported on that day to a “filtration point” in the village of Tolstoy-Yurt. They also stated that those detainees who had been identified as “field commanders” or others who were believed to be able to provide valuable information were taken away by officers from the FSB and military intelligence (Главное разведывательное управление, ГРУ Министерства обороны РФ) and were not transported to the filtration points with the other detainees. They also stated that a system of detainee records had been maintained and that individual minutes of detention had been drawn up in respect of each of the detained persons. They estimated that on 2 February 2000 between 100 and 150 persons had been detained on suspicion of participation in illegal armed groups. 75. The Government also submitted to the Court about 700 pages of documents from other criminal investigation files opened in relation to 62 persons detained in early February 2000 in and around Alkhan-Kala. Each of the detainees was questioned on 4 February 2000 in Tolstoy-Yurt, presented with charges and sent to various pre-trial detention centres. A detention order was issued in respect of each detainee, on suspicion of participation in illegal armed groups, by a prosecutor. It appears that most of the detainees were later released under an amnesty act. No such documents exist with reference to Khadzhi-Murat Yandiyev. 76. The investigation tried to obtain information about Yandiyev’s whereabouts from various sources. A number of law-enforcement agencies and detention centres in Chechnya, the Northern Caucasus and further afield in the Russian Federation, including pre-trial detention centre no. 20/2 in Chernokozovo, denied that he had ever been arrested or detained by them. 77. Their family’s neighbours in Grozny stated that they had not seen the Yandiyevs after they left Grozny in 1994. One neighbour, Ibragim D., questioned in October 2004, testified that in spring 2003 he had noticed a man resembling Khadzhi-Murat Yandiyev in a market in Grozny. The witness did not know Yandiyev very well and did not approach the man in the market or talk to him. 78. Also in October 2004 the investigation questioned a local resident in Alkhan-Kala who stated that in February 2000 he had witnessed Yandiyev’s arrest. He stated that in August 2000 he had noticed a man resembling the detainee in a shop in Alkhan-Kala. The witness did not know Yandiyev personally and did not know him by name. 79. The investigators questioned a number of Alkhan-Kala residents, including a policeman and the head of the local administration. In similarly worded statements they stated that in early February 2000 a large group of fighters headed by the field commander Arbi Barayev had entered the village. The village had been shelled and large detachments of the federal forces had then entered the village in APCs. None of the villagers questioned had ever heard of Khadzhi-Murat Yandiyev, but they stated that several young men from Alkhan-Kala had been detained by the federal forces on that day and later released. 80. Several of Yandiyev’s classmates from the Moscow Sociology University stated that they had not seen him after the summer of 1999. They described him as a devout young man who had observed Islamic customs and studied religious literature. The investigation obtained a copy of the order by the Rector of the University by which the student Yandiyev had been discharged as of 15 November 1999 for systematic absence from classes. 81. Yandiyev’s relatives with whom he had lived in Moscow from 1993 to 1999 testified that he had left for Chechnya in the summer of 1999 and that they had had no news from him since. 82. The investigation explored the version that the convoy which had transported Yandiyev from Alkhan-Kala could have been ambushed and that he could have escaped or been killed in the skirmish. It requested information from a number of sources about recorded ambushes of convoys in February 2000 and about escaped detainees, but received no examples of such incidents. None of the servicemen questioned were aware of such incidents. The investigation also explored whether Yandiyev could have used a false identity on arrival at the detention centre in Chernokozovo, but the guards of the facility, questioned in December 2005, testified that all the detainees who arrived there had been in possession of identity documents or police reports confirming their identities. 83. In December 2005 the central information bureau of the Russian railroads submitted data to the investigation about all rail road tickets purchased under the name of Yandiyev from February 1998 to October 2005 (over 450 entries). 84. On 21 January 2006 the investigation ordered a molecular-genetic analysis of the applicant’s blood sample, in order to verify if her relationship could be traced through samples of any persons killed in action while resisting the federal authorities. 85. On 6 October 2004 the military prosecutor’s office in charge of investigating Yandiyev’s kidnapping opened a criminal investigation into Khadzhi-Murat Yandiyev’s involvement in an illegal armed group, a crime under Article 208 part 2 of the Criminal Code. On the same day Yandiyev was charged in absentia with the above crime and his name was included on the federal search list. This investigation was assigned case file number 34/00/0040-04. 86. On 17 February 2005 the military prosecutor responsible for the case adjourned the investigation into Yandiyev’s kidnapping on the ground of failure to identify the culprits. The relevant document summarised the findings by that date. It referred, in particular, to the testimonies of four policemen from the Saratov Region who had been on mission in Chechnya in February 2000. Each of them stated that in mid-February 2000 five male bodies, dressed in camouflage outfits and civilian clothes, had been discovered on the outskirts of Alkhan-Kala, near the cemetery. The residents refused to bury them because they were not from Alkhan-Kala. The bodies were delivered to the Grozny District VOVD, where they were filmed and photographed by officers from the Grozny District Prosecutor’s Office. The bodies were then taken by a car belonging to the Grozny district military command to Mozdok, North Ossetia. 87. The document of 17 February 2005 cited a report by an officer of the Grozny VOVD to the effect that the registration log of the Mozdok forensic centre contained no information about the delivery of unidentified bodies in the first half of 2000. 88. The document further referred to information from the Grozny District Prosecutor’s Office that no criminal investigation had ever been conducted by that office into the discovery of five male bodies at the Alkhan-Kala cemetery in February 2000. 89. The case file reviewed by the Court does not contain these documents. 90. At different stages of the proceedings several orders were issued by the supervising prosecutors, enumerating the steps to be taken by the investigators. On 3 December 2001 a prosecutor from the Chechen Prosecutor’s Office ordered that all the circumstances of Yandiyev’s disappearance were to be fully investigated, those who had taken part in a special operation in Alkhan-Kala in early February 2000 were to identified, and that the applicant was to be found and granted victim status in the proceedings. 91. On 6 December 2003 a prosecutor from the Grozny District Prosecutor’Khadzhi-Murat Yandiyev and about the details of their search for him. It was also necessary to find a copy of the videotape containing Yandiyev’s questioning. The document also ordered that steps be taken to identify the detachments of federal forces that could have been involved in the special operation in Alkhan-Kala in early February 2000 and to establish what had happened to the detained persons. 92. On 1 March 2004 the Deputy Prosecutor of Chechnya ordered the investigators to establish the whereabouts of B. and I. and to question them about the circumstances of Yandiyev’s detention. He also ordered that investigative measures which could help to clarify Yandiyev’s personality, and other necessary measures, be pursued. 93. Between July 2001 and February 2006 the investigation was adjourned and reopened six times. The most recent order by the Deputy General Prosecutor, dated 10 February 2006, extended the investigation until 16 April 2006. It summarised the findings until that date and ordered the investigation to proceed with identification and questioning of other detained persons and the GUIN servicemen who had participated in the detention of suspects on the date in question, and to check the version that Yandiyev could have escaped from detention or used a false identity etc. 94. The Government submitted a copy of a TV report by the NTV company dated 2 February 2000. It contains a short interview with Khadzhi-Murat Yandiyev, who is shown standing by a bus. He confirms that he walked to Alkhan-Kala from Grozny and that he was with a group of about 15 persons. The footage then shows Yandiyev standing alone by a metal fence and a group of servicemen unfolding a black banner with an Arabic inscription. 95. The applicant submitted an undated copy of an interview with the CNN producer Ryan Chilcote for an on-line magazine, in which he spoke of how Yandiyev’s questioning was filmed by his crew: “The Chechen War, especially the second campaign, was my first experience with real warfare. I was able to get close to the action and see a lot of things on both sides of the conflict. I was travelling with the Russians when they took Alkhan-Kala, a village near the Chechen capital of Grozny. They captured a bunch of Chechen rebel fighters; one of them, a young guy in his 20s, was wearing a Russian uniform he’d obviously taken from a soldier he’d killed. The second-in-command in the Russian military walked up to him and said, “What the hell are you doing in that Russian uniform?” The rebel fighter talked back to him, and they got into a heated debate. The general looked through the guy’s pockets and found his passport. He read all the information out loud. Then he said to two of his soldiers, “Get rid of this guy. Kill him right here.” The soldiers didn’t know what to do. They knew our cameras were rolling. So they just nodded their heads but didn’t do anything. When the general came through again, he got upset. “I told you to get rid of this guy!” The soldiers dragged the man to an armoured personnel carrier and drove him off. A Russian colonel came up to me and said, “Hey, Ryan, want to shoot an execution?” It was one of those moments when you don’t know what to do as a journalist. On the one hand, I’d be documenting a war crime, the execution of an unarmed man. On the other, it went against my instincts. Just then, the tank I’d come in on began to leave, and I had to jump aboard. A few months later, we went to the rebel fighter’s address, which the general had read aloud on camera, to find out what had happened to him. We showed his mother the tape and asked if she’d heard from him. She hadn’t. It was really difficult—she totally broke down. It’s quite probable he was executed.” 96. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 97. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of the data of the preliminary investigation. Under part 3 of the said Article, the information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
| 1
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train
|
001-98089
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,010
|
MELANICHI v. UKRAINE
| 4
|
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
The applicants, Mr Valeriy Aleksandrovich Melanich (“the first applicant”) and Mrs Valentina Ivanovna Melanich (“the second applicant”), are Ukrainian nationals who were born in 1942 and 1944 respectively and live in Kyiv. The respondent Government are represented by their Agent, Mr Y. Zaytsev. In September 2004 the applicants’ neighbour, Mrs P., started reconstruction work on her apartment. The work was completed on an unspecified date in 2005. On 5 October 2005 the applicants instituted proceedings in the Svyatoshynskyy District Court of Kyiv (“the District Court”) against Mrs P. claiming compensation for pecuniary damage. In particular, the applicants alleged that the work had caused partial peeling of the parquet floor in the apartment and damage to tiles in the bathroom. On 31 October 2005 the District Court, following a request by the applicants, ordered a forensic building report to be prepared by the Kyiv Institute for Forensic Examinations (“the Institute”). The court ruled that the fee for the examination should be paid by the applicants. By a letter of 22 December 2005 the director of the Institute informed the District Court that if the fee was not paid within one month the examination would be cancelled. Since the court failed to inform the applicants about the above letter, on 26 January 2006 the director of the Institute sent the case file back to the court without examining the request. On 20 February 2006 the District Court again ordered a forensic building report to be prepared by the Institute. The court suspended the proceedings pending its conclusions. The report reached the court on 20 December 2007. On 15 January 2008 the court resumed the proceedings. In the period from 15 January to 9 October 2008 the court scheduled some eleven hearings. Six of them were adjourned because Mrs P. had failed to appear before the court and one because the judge was involved in other proceedings. One hearing was adjourned following an application by the first applicant. The District Court sent several requests to the local tax office, the Minister of the Interior and other institutions in order to ascertain Mrs P.’s whereabouts. On 7 October 2008 the applicants slightly amended their claims. On 9 October 2008 the District Court dismissed the applicants’ claims as unsubstantiated. On 4 December 2008 the Kyiv City Court of Appeal upheld that judgment. The applicants appealed in cassation. On 23 January 2009 the Supreme Court declined to consider the applicants’ appeal in cassation because the applicants had failed to comply with procedural formalities. The court gave the applicants a time-limit for rectifying the shortcomings. On an unspecified date the applicants rectified the shortcomings and re-submitted the appeal in cassation. On 2 March 2009 the Supreme Court refused the applicants’ request for leave to appeal in cassation as unsubstantiated. In August 2005 the applicants instituted proceedings in the District Court against Mrs P., seeking compensation for non-pecuniary damage allegedly caused by noise and vibration resulting from the reconstruction work. On 20 October 2005 the court ruled in part for the applicants, awarding 1,008.50 Ukrainian hryvnias (UAH) to the first applicant and UAH 2,500 to the second applicant. The applicants received the sums on 2 February and 10 July 2007 respectively. On an unspecified date the Municipal Enterprise Responsible for Maintenance of Housing Facilities instituted proceedings against Mrs P., requesting the court to order her to undo the reconstruction work that she had carried out in her apartment. On 10 November 2006 the District Court allowed this claim. The judgment remains unenforced. On 21 December 1987 the Kyiv Military Garrison Court acquitted Mr Z. of inflicting bodily injuries on the second applicant, holding that there was no corpus delicti. On 5 February 1988 the Kyiv Military District Court quashed that decision and remitted the case to the Garrison Military Tribunal, which, on 29 April 1988, acquitted Mr Z. On 8 July 1988 the Kyiv Military District Court upheld that judgment, which therefore became final.
| 0
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train
|
001-4936
|
ENG
|
GBR
|
ADMISSIBILITY
| 1,999
|
W.G. S. AND M.S.L. S. v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The first applicant is a citizen of Austria and of the United States of America. He was born in Hungary in 1935 and is currently living in London, England. The second applicant, the first applicant’s son, is a British national, born in 1962 and living in London. Both applicants are represented before the Court by Isadore Goldman, Solicitors, London, and by Mr J.P. Gardner, a lawyer practising in London. A. The applicants were directors of the Kensington Property Management Ltd (Kensington), which was responsible for managing various companies operating in the property investment sector. As a result of the property collapse from 1989 onwards, Kensington’s various sources of property-based income suffered and it ceased trading in January 1993. Kensington was placed into Creditors’ Voluntary Liquidation on 17 February 1993. The management functions of Kensington were thereafter carried out by Westminster Property Management Ltd (Westminster) of which the applicants became directors on 13 February 1990. In 1994 Westminster agreed a schedule of payments of outstanding income tax but as trading conditions continued to deteriorate the agreed schedule of conditions could not be met and on 15 August 1994 the Inland Revenue presented a winding up petition to the court and a winding-up order was made on 26 October 1994. The Secretary of State for Trade and Industry subsequently appointed an Official Receiver who became Liquidator on an interim basis. As such, he had various obligations under the provisions of the Insolvency Act 1986 (“the 1986 Act”) to look into the affairs of Westminster and in particular its causes of failure. The applicants, as well as a number of officers of companies within Westminster’s management remit, were interviewed by an Examiner from the Official Receiver’s Office in connection with Westminster’s affairs. The persons interviewed were required to give written statements. The first applicant was interviewed on 9 January and 12 December 1995 and the second applicant on 7 February and 15 December 1995. The statements were given pursuant to the provisions of sections 131, 132 and 235 of the 1986 Act. The first applicant states that the first interview was unfair and oppressive and that the questioning was conducted in a peremptory and police-like manner. He was not advised that he had the right to have a legal adviser during interview. The first applicant signed a written statement in connection with this interview on 31 January 1995. He was accompanied by his solicitor at the second interview. The second applicant also states that his first interview was conducted in an oppressive, intense and accusatory manner. He was not informed of his right to have his lawyer present at the interview and many of the questions put to him were not within his personal knowledge. His solicitor was present at the second interview, which was conducted smoothly, speedily and in a dignified and business-like manner. On 24 October 1996 the Official Receiver acting on behalf of the Secretary of State issued proceedings against the applicants under the Company Directors’ Disqualification Act 1986 (“the CDDA”) asserting that they were unfit to be company directors and should be disqualified from that competence. The proceedings were founded on a report made to the court by the Deputy Official Receiver on 23 October 1996 which drew extensively on the statements made by the applicants in interviews as well as materials which they and others produced to the Examiner acting under compulsory powers. On 6 November 1996 a national newspaper published an article stating that proceedings had been issued against the applicants on 24 October 1996. The disqualification proceedings were served on the applicant on 7 or 8 November 1996 and alleged, inter alia, that the applicants allowed Kensington and Westminster to continue to trade without there being any commercial prospect of the companies meeting their liabilities, misapplication of company funds and unlawful payments to directors. The applicants state that the criticism levelled against them is based on information obtained unfairly in the exercise of compulsory powers and that difficulties which Kensington and Westminster encountered are to be explained in terms of the exceptional cash flow problems due to market forces at the relevant time. B. Relevant domestic law Appointment etc. of official receivers under the Insolvency Act 1986 Section 399 of the Insolvency Act 1986 states: “(1) For the purpose of this Act the official receiver, in relation to any bankruptcy or winding up, is any person who by virtue of the following provisions of this section or section 401 below is authorised to act as the official receiver in relation to that bankruptcy or winding up. 2) The Secretary of State may (subject to the approval of the Treasury as to numbers) appoint persons to the office of official receiver … . (3) Where a person holds the office of official receiver, the Secretary of State shall from time to time attach him either to the High Court or to a county court having jurisdiction for the purposes of the second Group of Parts of this Act. (4) Subject to any directions under subsection (6) below, an official receiver attached to a particular court is the person authorised to act as the official receiver in relation to every bankruptcy or winding up falling within the jurisdiction of that court. ...” Company’s statement of affairs Section 131 of the Act reads: “(1) Where the court has made a winding-up order or appointed a provisional liquidator, the official receiver may require some or all of the persons mentioned in subsection (3) below to make out and submit to him a statement in the prescribed form as to the affairs of the company. (2) The statement shall be verified by affidavit by the persons required to submit it and shall show ... (e) such further or other information as may be prescribed or as the official receiver may require. (3) The persons referred to in subsection (1) are (a) those who are or have been officers of the company; ... (7) If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine. ...” Investigation by the official receiver Section 132 provides: “(1) Where a winding-up order is made by the court in England and Wales, it is the duty of the official receiver to investigate (a) if the company has failed, the causes of the failure; and (b) generally, the promotion, formation, business, dealings and affairs of the company, and to make such report (if any) to the court as he thinks fit. (2) The report is, in any proceedings, prima facie evidence of the facts stated in it.” Section 235 provides: “(1) This section applies as does section 234; and it also applies, in the case of a company in respect of which a winding-up order has been made by the court in England and Wales, as if references to the office-holder included the official receiver, whether or not he is the liquidator. (2) Each of the persons mentioned in the next subsection shall (a) give the office-holder such information concerning the company and its promotion, formation, business, dealings, affairs or property as the office-holder may at any time after the effective date reasonably require, and (b) attend on the office-holder at such times as the latter may reasonably require. … (5) If a person without reasonable excuse fails to comply with any obligation imposed by this section, he is liable to a fine and, for continued contravention, to a daily default fine.” Section 5 of the Perjury Act 1911 Section 5(c) of the Perjury Act 1911 makes it a criminal offence for any person knowingly or willingly to make a statement that is false in a material respect if that person is required to provide an oral declaration or an oral answer under or in pursuance of a Public General Act of Parliament for the time being in force. The Company Directors Disqualification Act 1986 gives power for the disqualification of directors of companies who are regarded as unfit. Section 1 reads: "(1) ... a court may, and under Section 6 shall, make against a person a disqualification order, that is to say an order that he shall not, without leave of the court (a) be a director of a company, or (b) be a liquidator or administrator of a company, or (c) be a receiver or manager of a company's property, or (d) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company, for a specified period beginning with the date of the order. ... (2) In each section of this Act which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order, there is specified the maximum (and, in section 6, the minimum) period of disqualification which may or (as the case may be) must be imposed by means of the order. (3) Where a disqualification order is made against a person who is already subject to such an order, the periods specified in those orders shall run concurrently. (4) A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters. ...” Section 6 provides: “(1) The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied - (a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and (b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company. …” Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 reads as follows: “(1) There shall, at the time when the summons is issued, be filed in court evidence in support of the application for a disqualification order, and copies of the evidence shall be served with the summons on the respondent. (2) The evidence shall be by one or more affidavits, except where the applicant is the official receiver, in which case it may be in the form of a written report (with or without affidavits by other persons) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it. (3) There shall in the affidavit or affidavits or (as the case may be) the official receiver’s report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company.”
| 0
|
train
|
001-105438
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,011
|
KAFKARIS v. CYPRUS
| 3
|
Inadmissible
|
Anatoly Kovler;Costas Clerides;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
1. The applicant, Mr Panayiotis Agapiou Panayi, alias Kafkaris, is a Cypriot national who was born in 1946. He is currently serving a mandatory sentence of life imprisonment for premeditated murder in the Nicosia Central Prisons. He is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The respondent Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 2. The background facts of the case are set out in the Grand Chamber’s judgment of 12 February 2008 concerning the applicant’s first application before the Court (Kafkaris v. Cyprus [GC], no. 21906/04, §§ 12-30, ECHR 2008...). 3. On 3 June 2004 the applicant lodged an application with the Court (application no. 21906/04) against the Republic of Cyprus under Article 34 of the Convention. The applicant alleged that Articles 3, 5, 7 and 14 of the Convention had been violated as a result of his life sentence and continuing detention. 4. In a judgment of 12 February 2008 the Grand Chamber held that there had been a violation of Article 7 of the Convention with regard to the quality of the law applicable at the time the applicant had committed the offence (see Kafkaris, cited above, §§ 143-152). At the same time, however, it concluded that there had been no violation of Article 7 in so far as the applicant complained about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence (ibid.). 5. With regard to the applicant’s other complaints under Article 3, Article 5 § 1 and Article 14 of the Convention, the Grand Chamber found that there had been no violation. 6. With regard to Article 3, the Grand Chamber held, inter alia, that although the prospect of release for prisoners serving life sentences in Cyprus was limited, any adjustment of a life sentence being only within the President’s discretion subject to the agreement of the Attorney-General, it could not be said that life sentences in Cyprus were irreducible with no possibility of release; on the contrary, it was clear that in Cyprus such sentences were both de jure and de facto reducible. This was so in spite of the shortcomings in the procedure. The Grand Chamber considered therefore that the applicant could not claim that he had been deprived of any prospect of release or that his continued detention as such, even though long, constituted inhuman or degrading treatment (ibid., §§ 102-105). 7. As to Article 5 § 1 of the Convention, the Grand Chamber held that the continuing detention of the applicant after 2 November 2002 was justified under Article 5 § 1 (a) of the Convention and that therefore there had been no violation of Article 5 § 1. In this connection it held that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code and not for a period of twenty years and that the fact that he had subsequently been given a notice by the prison authorities, on the basis of the Prison Regulations in force at the time, setting a conditional release date could not, and did not, affect the sentence of life imprisonment passed by the Limassol Assize Court or render his detention beyond the above date unlawful (ibid., §§ 118-121). 8. Finally, the Grand Chamber held that the applicant’s complaint under Article 5 § 4 of the Convention fell outside the scope of its examination as it had been raised for the first time in his memorial to the Grand Chamber and was not covered by the Chamber’s decision on admissibility of 11 April 2006) (ibid., § 124). 9. As to the application of Article 41, the Grand Chamber considered that a finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (ibid., § 170). However, it ordered Cyprus to pay the sum of 13,465 euros in respect of costs and expenses (ibid., §§ 175-179). 10. The Committee of Ministers of the Council of Europe concluded its supervision of the execution of the Grand Chamber’s judgment at its 1051st meeting (DH) held from 17 to 19 March 2009, at which it adopted a decision instructing the Secretariat to prepare a draft final resolution. The text of the Committee’s public notes reads as follows: “This case concerns the infringement of the principle ‘no punishment without a law’ on account of the quality of the law applicable at the material time (1987), which did not enable the applicant to discern precisely the scope of the penalty of life imprisonment and the manner of its execution (violation Art. 7). The European Court observed that the legal basis for the applicant’s conviction and sentence was the criminal law applicable at the material time and his sentence, that was mandatory life imprisonment, corresponded to that prescribed under section 203(2) of the Criminal Code for the offence of premeditated murder. However, according to the Court, at the time the applicant committed the offence, it was equally clear that both the executive and the administrative authorities, including the prison service, understood the Prison Regulations as imposing a maximum period of 20 years to be served by any person who had been sentenced to life imprisonment. In 1988, in the Yiouroukkis case, the Nicosia Assize Court interpreted life imprisonment as meaning ‘imprisonment for life’, and, in 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court. The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. On the contrary, the Court did not accept the applicant’s argument that a heavier penalty was retroactively imposed on him since it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment. Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damages sustained by the applicant. It also found a non-violation of Article 7 as regards the applicant’s complaint that the amendment of the prison regulations subsequent to his being sentenced made it impossible for him to expect a remission of sentence. The violation found in this case consists only in the fact that the law applicable at the time the applicant committed the offence did not enable him to discern precisely the scope of the penalty of life imprisonment and the manner of its execution. When the Limassol Assize Court sentenced the applicant, it was already clear that life imprisonment had become imprisonment for the rest of one’s biological life. General measures: Following the Supreme Court’s judgment in the case of Hadjisavvas against Cyprus (judgment of 8/10/1992, (1992)1 A.A.D. 1134), which declared the Prison (General) Regulations of 1981, as amended in 1987, unconstitutional, these Regulations were repealed in 1996. According to the new regulations the imposition of mandatory imprisonment has become imprisonment for the rest of one’s biological life, thereby excluding any possibility of remission for life prisoners. • Legislative change: Following the judgment, the Bill establishing a parole board was finalised (details of the bill are mentioned at paragraph 92 of the European Court’s judgment). The Bill has received governmental approval and is currently being examined in detailed by the Parliamentary Committee for Legal Affairs. As the violation relates to historical provisions, the bill is not a key aspect of the general measures. However, its goal is to improve the rights of life prisoners. The bill will fix a minimum period to be served before life prisoners can become eligible for parole and establish an independent parole board. • Publication and dissemination: Under cover of a letter from the Human Rights Sector of the Government Agent’s Office summarising the judgment and its reasoning, copies of the judgment were sent to the Ministry of Justice and Public Order, the Presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. It has also been published on the Government Legal Service website ... and widely publicised and discussed in the media.” 11. The adoption of a final resolution by the Committee of Ministers is still pending. 12. The facts of the present case, as submitted by the parties, may be summarised as follows. 13. By letter dated 14 April 2008 the applicant applied, via the Director of Prisons, to the President of the Republic for pardon or conditional release. 14. By letter dated 14 July 2008 the Attorney-General refused his request. In particular, he informed the applicant that following an examination of his application, a recommendation to the President to suspend his sentence under Article 53 (4) of the Constitution was not justified. 15. On 7 March 2008 the applicant lodged a new habeas corpus application (no. 19/2008) before the Supreme Court (first-instance jurisdiction). 16. He complained under Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention. The applicant claimed, inter alia, the following: 26. The applicant lodged an appeal on 6 May 2008 (no. 123/2008) with the Supreme Court (appeal jurisdiction). The applicant challenged the findings of the first-instance court. 27. His appeal was dismissed on 12 January 2009. The Supreme Court in its judgment relied on the findings of the Grand Chamber. 28. With regard to the applicant’s complaint under Article 3 of the Convention, the Supreme Court observed that the Grand Chamber in its judgment, when examining Article 3, had not doubted the general adequacy of the Cypriot system, even if the prospect of release was limited. The Supreme Court relied on paragraph 104 of the Grand Chamber’s judgment: “In his submissions, the applicant has placed great emphasis on the lack of a parole board system in Cyprus. However, the Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy (see, mutatis mutandis, Achour, cited above, § 44). In this connection, the Court observes that at the present time there is not yet a clear and commonly accepted standard amongst the member States of the Council of Europe concerning life sentences and, in particular, their review and method of adjustment. Moreover, no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release.” 29. The Supreme Court observed (apparently in the context of its examination of Article 3 of the Convention) that the Grand Chamber’s judgment did not impose an immediate obligation on the Republic to establish a parole board. In any event, however, the Supreme Court considered that the Government should not delay in establishing such a board. 33. The relevant domestic law and practice concerning life sentences and the release of prisoners is set out in the Grand Chamber’s judgment of 12 February 2008 (Kafkaris, cited above, §§ 31-62). 34. In 2009, however, the Prison Law of 1996 (Law 62(I)/96 as amended – ibid., §§ 56-59) was amended by Amending Law 37(I)/2009, which entered into force on 24 April 2009. This Law introduced significant amendments to the Prison Law, in particular to section 14, by providing for the establishment of a Release Board, an independent board for the release of prisoners on licence (section 2). Section 14 includes detailed provisions concerning the Release Board, the procedures to be followed, and the release of prisoners on licence. 35. Section 14 (1) provides for the establishment of a Release Board, whose competence is to examine and determine, in accordance with the procedures set out in the Law, prisoners’ applications for conditional release on licence so that they can continue to serve the remaining part of their sentence outside prison. On 24 June 2009 the five-member board was appointed by the Council of Ministers. On 2 February 2010 the Board’s members gave the oath required before the President of the Republic that they would faithfully exercise their duties (section 14 (4)). The Board started operating at the beginning of March 2010. 36. By section 14 A (1), a prisoner who has been sentenced to life imprisonment and has served at least twelve years of the sentence can apply to the Release Board for conditional release. Section 14 A (1) provides as follows: “A prisoner who has served one-half of a sentence of imprisonment which exceeds two years, or who was sentenced to life imprisonment and has served at least twelve years of the sentence, is entitled to submit directly to the Release Board a written request for conditional release on parole in order to continue to serve the remaining part of the sentence outside prison.” 37. Section 14 B (1) provides that a request for release on parole as provided in section 14 A can also be submitted by the following: “(a) a prisoner who has served at least twenty-five years of sentences of life imprisonment which run consecutively; (b) a prisoner who has served half of the total duration of sentences which run consecutively, other than those mentioned in point (a) above, or who, where the longest of his sentences which run consecutively is a sentence of life imprisonment, has served at least fifteen years of imprisonment; (c) a prisoner who has served half of his sentences of imprisonment which run concurrently or who has served half of the longest in duration of his sentences which run only partially concurrently so that the sentence longest in duration exceeds the other sentence or sentences, or who, where the longest sentence is one of life imprisonment, has served at least fifteen years of it.” 38. Section 14 A (4) provides that the Release Board decides on the conditions and restrictions which, in the circumstances, it considers appropriate to set for the release on licence of the prisoner in question in order to reduce the risk of recidivism. The conditions or restrictions can subsequently be modified, annulled or supplemented with additional ones (section 14 E (1)). The applicant has the right to be heard before additional or stricter conditions are set (section 14 E (1)). 39. When deciding on a prisoner’s application for release on licence and on the conditions and limitations to be set for such release, the Release Board will examine and weigh up a number of factors. These are set out in section 14 H (1) as being “(a) the degree of dangerousness of the prisoner and the possibility of recidivism; (b) the protection of society by preventing possible offences such as those for which the prisoner is serving his or her sentence; and (c) any personal, family or other circumstances which may justify the prisoner’s conditional release on licence, without, however, jeopardising the safety of society”. This section provides that the second factor is particularly significant concerning applications by prisoners who are serving a sentence of life imprisonment or long-term sentences for violent offences. Further, the Release Board, in reaching its decision in a particular case, will take into account a number of factors, including the type of offence or offences of which the prisoner was convicted, written comments made by the court in imposing the sentence, the prisoner’s criminal record, the prisoner’s intentions and plans for his or her successful and law-abiding integration into society, the prisoner’s conduct in prison, the report of the prison forensic psychiatrist and the prisoner’s degree of dangerousness (see section 14 H (2)). 40. Section 14 I (1) provides, inter alia, for an interview of the prisoner by the Release Board. At the interview, the prisoner has the right to be legally represented and to call witnesses and experts (section 14 I (1) (b) (i)). The Release Board has the obligation to hear the prisoner as well as his or her witnesses, experts and lawyers, to accept and examine any written information material and evidence which the prisoner submits, to allow the prisoner or his or her representative to examine or inspect, prior to the oral interview, any written information material which the Release Board has obtained in relation to the application for release on licence, and to put such material at the prisoner’s disposal during the interview. A record is kept of the interview (section 14 (I) (2)). 41. The Board’s decisions are given in writing and must be reasoned (section 14 J (1)). 42. A prisoner whose application is dismissed by the Release Board can file another application after the lapse of a one-year period or, if he or she is serving a life sentence or a sentence exceeding fifteen years, after the lapse of a two-year period (section 14 C (2)). 43. In the event that a prisoner fails to comply with a condition or restriction relating to his or her release, the Release Board can decide to revoke its decision to release the prisoner on licence after having given him or her the opportunity to be heard (section 14 F (1)). 44. Decisions of the Release Board can be challenged before the Supreme Court by way of administrative recourse under Article 146 § 1 of the Constitution (section 14 J (4)).
| 0
|
train
|
001-23319
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,003
|
AFONSO and ANTONIO v. THE NETHERLANDS
| 4
|
Inadmissible
| null |
The applicants, Mrs Florencia Afonso and her daughter Maria Janete Antonio, are Angolan nationals, who were born in 1967 and 1989 respectively and live in St. Oedenrode. They are represented before the Court by Mr J.J. Eizenga, a lawyer practising in ‘s-Hertogenbosch. The facts of the case, as submitted by the applicants, may be summarised as follows. On 7 May 1985, the first applicant married Mr Castelo Antonio in a traditional ceremony in Angola. They had three children, Engrazia Maya Antonio (born in 1984), Manuel Jacinto Antonio (born in 1986) and the second applicant. In 1993, Mr Castelo Antonio fled from Angola to the Netherlands, where he applied for asylum. He was eventually granted a residence permit on grounds of a policy of tolerance (gedoogdenbeleid), i.e. where expulsion would entail undue hardship given the general situation in the country of origin. The first applicant and the three children continued to live in Luanda (Angola). On 15 February 1999, the two applicants travelled from Angola to Portugal for which country they had obtained an entry visa. On 27 February 1999, they travelled from Portugal to the Netherlands, where on 5 March 1999 they applied for asylum. The two other children, Engrazia and Manuel, remained in Luanda in the care of a friend. When interviewed on 5 March 1999 by a Netherlands immigration official on the reasons for her asylum request, the first applicant stated that she had applied for asylum in the Netherlands because her husband was living there, of which fact she had become aware in 1998. On 9 March 1999, the Netherlands Government requested that Portugal accept responsibility for the applicants’ asylum request pursuant to the Dublin Convention. On 5 April 1999, the Portuguese authorities accepted that responsibility. The Netherlands Deputy Minister of Justice (Staatssecretaris van Justitie) subsequently declared inadmissible the applicants’ asylum request. The applicants’ appeal was rejected in a final decision taken by the Hague Regional Court (arrondissementsrechtbank) on 22 October 1999. In the meantime, on 19 April 1999, the first applicant applied for a residence permit to stay with her husband. She also made this application on behalf of the second applicant. Holding that the first applicant had not established the existence of a legally valid marriage with Mr Castelo Antonio by way of authenticated official documents, and that Mr Castelo Antonio did not comply with the minimum income requirement under the applicable immigration rules (i.e. the equivalent of 956.97 euros per month), the Deputy Minister of Justice rejected this request on 22 September 1999 and issued an order for the applicants’ expulsion. On 23 September 1999, the first applicant filed an objection (bezwaar) against this decision with the Deputy Minister and, on the same day, requested the President of the Hague Regional Court to issue an interim measure to the effect that she would not be expelled pending the proceedings on her objection. On 14 December 1999, Mr Castelo Antonio was granted Netherlands nationality. On 11 January 2001, considering that the Deputy Minister had considerably exceeded the statutory time-limit for determining the applicant’s objection, and thus apparently attached no great importance to an expulsion at short notice, the President of the Hague Regional Court granted the interim measure requested by the first applicant. On 1 June 2001, the Deputy Minister of Justice withdrew the policy decision in force since 20 August 1998 to stay expulsions to Angola given the general situation there. The decision to withdraw this moratorium was based on the official reports (ambtsberichten) of 26 June 2000 and 4 May 2001 of the Netherlands Ministry of Foreign Affairs, according to which the general situation in Angola had improved. According to a further official report of 27 August 2002 of the Netherlands Ministry of Foreign Affairs, the security situation in Angola had considerably improved since 4 April 2002 when the warring Angolan Government forces and the UNITA rebel forces signed an official ceasefire agreement in the form of a Memorandum of Understanding in order to pave the way for further negotiations on a political level. The report stated that both the Government and UNITA forces respected the ceasefire agreement. However, some incidents of armed plundering, mostly caused by hungry former UNITA fighters, had still occurred, which incidents could not always be effectively countered by the Angolan police forces. Certain former unsafe areas could therefore not yet be classified as secure. Areas now classified as safe were the capital Luanda, the coastal areas of the provinces Namibe, Benguela, Kwanza Sul and Cabinda, and all the provincial capitals. On 23 October 2001, the applicant was heard on her objection before an official committee (ambtelijke commissie). On 30 November 2001, the Deputy Minister of Justice rejected the applicant’s objection and ordered her expulsion from the Netherlands. On 11 December 2001, the first applicant filed an appeal (beroep) against this decision with the Hague Regional Court and, on the same day, requested the President of the Hague Regional Court to issue an interim measure allowing her to remain in the Netherlands pending the proceedings on her appeal. In its decision of 14 March 2003, following a hearing held on 31 January 2003, the Hague Regional Court sitting in ‘s-Hertogenbosch rejected the first applicant’s appeal (beroep) against the decision of 30 November 2001. It noted at the outset that the first applicant had failed to substantiate her marriage with Mr Castelo Antonio with authenticated documents. It further noted that, pursuant to the applicable statutory immigration rules and the pertaining immigration policy guidelines, it was a material condition for the admission of foreign spouses that the existence of a marriage be shown by official and authenticated documents. As the first applicant had failed to submit such documents and had failed to undertake any attempts to contact her parents, other relatives or the (local) authorities in Angola in order to obtain official and authenticated documents proving her marriage with Mr Castelo Antonio, the Regional Court concluded that the Deputy Minister had correctly rejected the first applicant’s request for a residence permit on the grounds of her purported marriage. This finding was not altered by the recording of her marital status, on the basis of an affidavit given by the first applicant, in the municipal personal records database (gemeentelijke basisadministratie) of the town where she lived in the Netherlands, as the statutory provisions on such municipal databases could not be regarded as a specific regulation aimed at implementing statutory immigration rules. Insofar as the first applicant complained that the refusal to grant her a residence permit was contrary to her rights under Article 8 of the Convention, the Regional Court held: “It is not disputed that in casu there is family life within the meaning of Article 8 of the Convention between [the first applicant], her (purported) spouse Castelo Antonio and their daughter, Maria Janete Antonio. The [Deputy Minister] has correctly considered that there has been no interference as to the right to respect for family life as meant by Article 8 of the Convention as the refusal to allow residence [in the Netherlands] did not entail depriving [the first applicant] of a residence title enabling her to enjoy family life. The question thus arises whether there are facts and circumstances of such a nature that the right to respect for family life would give rise to a positive obligation for the [Deputy Minister] nevertheless to grant [the first applicant] residence [in the Netherlands]. In order to answer that question, the interests of the [Deputy Minister] must be balanced against the interests of [the first applicant]. It is of primary importance to attain a “fair balance” between those interests, in which the [Deputy Minister] enjoys a certain margin of appreciation. An important aspect of this balancing of interests is the question whether it is possible to exercise family life in the country of origin. The Regional Court is of the opinion that the [Deputy Minister] could find in all reasonableness that the [first applicant’s] interests did not outweigh the general interest. In this finding it is important that neither for [the first applicant] nor for the other members of her family are there any objective obstacles to the exercise of family life outside the Netherlands or in Angola, the [first applicant’s] country of origin. In this connection it is equally relevant that the (purported) spouse of [the first applicant], who has not been admitted to the Netherlands as a refugee, also originates from that country. Noting the official reports (ambtsberichten) of the Minister of Foreign Affairs of 26 June 2000 and 4 May 2001, the situation in Angola also does not form an obstacle. As to the [first applicant’s] argument, based on the judgment of the European Court of Human Rights of 2 August 2001 ... (Boultif v. Switzerland) ..., that in her case it should also be examined whether in all reasonableness it can be expected from her husband, in view of his Netherlands nationality, that he returns to Angola or goes [with her] to Portugal, the Regional Court considers that it can in all reasonableness be expected of the (purported) spouse that he returns to Angola or goes [with the first applicant] to Portugal to exercise family life there in view of the fact that he (originally) comes from Angola and that no objective obstacle has become apparent. Also the health problems advanced by [the first applicant] do not necessarily constitute an obstacle to the exercise of family life outside the Netherlands or in the country of origin as the family’s separation was [partly] the cause of the [first applicant’s] health problems. Furthermore, two children of the family still reside in Angola. Also on that ground, the Regional Court fails to see why family life could not be exercised there. In view of the above considerations, the Regional Court is of the opinion that the [Deputy Minister} could in all reasonableness conclude that there was no positive obligation to grant [the first applicant] residence in the Netherlands on the grounds of Article 8 of the Convention.” On 14 March 2003, the provisional measures judge (voorzieningenrechter) of the Hague Regional Court sitting in ‘sHertogenbosch rejected the first applicant’s request for an interim measure as her appeal against the decision of 30 November 2001 had been rejected by the Hague Regional Court.
| 0
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train
|
001-4834
|
ENG
|
FIN
|
ADMISSIBILITY
| 1,999
|
KANGASNIEMI v. FINLAND
| 4
|
Inadmissible
|
Georg Ress
|
The applicant is a Swedish citizen, born in 1944 and living in Huddinge, Sweden. She is represented before the Court by Mr Wäinö Pietikäinen, chairman of an association for patients. A. Since the end of the 1980’s the applicant has suffered from various health problems, e.g. arrhythmia, blood pressure, headaches, and pain in her back and neck. In 1991, she sought compensation from her insurance company on the basis of a voluntary insurance claiming her problems were related to her work as a dentist. On 12 July 1991, the insurance company refused her claim for compensation. The Board for Accident Compensation (tapaturmalautakunta, olycksfallsnämnd) and the Insurance Court (vakuutusoikeus, försäkringsdomstol) rejected her appeals on 18 December 1991 and 6 October 1992 respectively. The Supreme Court (korkein oikeus, högsta domstolen) refused her leave to appeal on 30 August 1993. These proceedings are later referred to as “the first set of proceedings”. After receiving new medical statements, the insurance company reviewed the applicant’s claim for compensation and, on 12 February 1996, upheld its previous refusal. The applicant appealed to the Board for Accident Compensation, which rejected the appeal on 14 August 1996. The proceedings before the Board were conducted in writing. The applicant appealed to the Insurance Court requesting, inter alia, an oral hearing. The Insurance Court received a statement from the insurance company and the applicant submitted her observations to it. On 7 October 1997, the Insurance Court rejected the appeal without holding an oral hearing. It reasoned its refusal to hold an oral hearing as follows: (translation from Swedish) The applicant sought leave to appeal against the Insurance Court’s decision from the Supreme Court arguing, inter alia, that the Insurance Court had no legal ground for its refusal to hold an oral hearing. Furthermore, she claimed that the Supreme Court should wait for the County Administrative Board’s decision on her complaint before deciding the case. On 22 June 1998, the Supreme Court refused the applicant leave to appeal. The latter proceedings are later referred to as “the second set of proceedings”. B. Relevant domestic law According to Section 9, subsection 1, of the Insurance Court Act (laki vakuutusoikeudesta, lagen om försäkringsdomstolen 14/58) as in force at the relevant time, the proceedings before the Insurance Court were written. However, the Insurance Court could for special reasons decide to hold an oral hearing where the parties, witnesses and experts could be heard. It could also request that evidence be taken by an ordinary court of first instance. According to Section 53(b) of the Accident Insurance Act (tapaturmavakuutuslaki, lagen on olycksfallsförsäkring 608/48), one who wants to appeal against the Insurance Court’s decision to the Supreme Court must seek leave to appeal, which can be granted under the provisions set out in Chapter 30, Section 3, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk). According to Chapter 30, Section 20, of the Code of Judicial Procedure, the Supreme Court may, when necessary, hold an oral hearing, where the parties, witnesses and experts may be heard, and other evidence may be taken.
| 0
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train
|
001-57417
|
ENG
|
AUT
|
CHAMBER
| 1,982
|
CASE OF ADOLF v. AUSTRIA
| 2
|
No violation of Art. 6
| null |
9. The applicant, an Austrian citizen born in 1918, lives in Innsbruck where he practises the profession of accountant and financial consultant (Wirtschaftsprüfer und Steuerberater). 10. On 15 July 1977, an 85-year-old woman, Mrs. Irmgard Proxauf, acting through a lawyer, reported to the Innsbruck public prosecutor's office that three days earlier during a quarrel Mr. Adolf had thrown at another person, Mrs. Anneliese Schuh, a bunch of keys which had then struck her (Mrs. Proxauf), causing her injury. In her letter headed "request to inquire into a set of facts", she called on the prosecutor's office to take criminal proceedings against the applicant and stated that she would be a civil party claiming damages in any such proceedings (Privatbeteiligte). 11. The federal police at Innsbruck, instructed on 12 August by the public prosecutor's office to investigate whether or not a punishable act had been committed, interrogated several persons cited by Mrs. Proxauf at witnesses and, on 22 September, the applicant himself. He denied the facts alleged against him and denounced the complaint as being knowingly false. After pointing out that the object alleged to have caused the injury was, in fact, an envelope containing a single key, he asserted, amongst other things, that he had not thrown it: he had wanted to give it back to Mrs. Proxauf, but it had slipped out of his hand and touched her arm. Mrs. Schuh, he said, had picked it up and thrown it, just above his head, over a distance of thirteen metres in the direction of his house. Mr. Adolf's wife and two employees had written a note setting out what they remembered of the incident. This note, he stated was available to the court, as an item for inclusion in the case-file. The police accepted the note, but did not question Mrs. Adolf or the employees. On 28 September, the public prosecutor's office, to which the file had been returned, asked the Innsbruck District Court (Bezirksgericht) to procure a medical report on the seriousness of Mrs. Proxauf's injury. The Court registered the case on 4 October 1977; under the heading "punishable act" it specified "section 83 of the Penal Code", which is a provision, amongst others, dealing with the infliction of bodily harm. Following receipt of the doctor's opinion, the District Court assessed the costs of that opinion on 11 November 1977. The district prosecutor (Bezirksanwalt) requested the District Court on 21 November to "decide that the conditions of section 42 of the Penal Code [were] fulfilled" (see paragraph 22 below). The Court acceded to the request on 24 November by inserting in the file a note worded as follows: "B" (Beschluss, decision): "... the proceedings are closed pursuant to section 451 par. 2 of the Code of Criminal Procedure"; in addition, it added to the register, under the heading "date and manner ... of disposal of the matter" (Erledigung): "24. 11. Section 451 par. 2 of the Code of Criminal Procedure". 12. On 3 December, an application was made to the District Court by Mr. Adolf who, after consultation of the file on his case, had come to learn on 22 November of the submissions made by the public prosecutor's office on the previous day; however, like that office, he was not aware of the decision of 24 November. He denied that he had injured Mrs. Proxauf, whether by throwing a bunch of keys or otherwise, and contested the doctor's findings, claiming in particular that the latter had based his opinion on information that was contradicted by the material in the case-file (aktenwidrig). He called on the District Court either to acquit him after trial or to terminate the proceedings pursuant to section 90 par. 1 of the Code of Criminal Procedure (see paragraph 21 below). He requested that, if the District Court should choose the first alternative, fresh medical evidence be taken forthwith. On 22 December, the District Court notified an associate of the applicant's lawyer that the proceedings had been terminated - on an unspecified date - in pursuance of section 451 2 the Code of Criminal Procedure. Following a request made by Mr. Adolf on 4 January 1978, the Court served on him on 24 January a decision dated 10 January which reads as follows (translation from German): "Decision In the criminal case (Strafsache) against Dr. Gustav Adolf for the offence of inflicting bodily harm, within the meaning of section 83 of the Penal Code, the District Court of Innsbruck has decided as follows upon the request of the public prosecutor: The conditions of section 42 of the Penal Code are met; the proceedings are terminated in accordance with section 451 par. 2 of the Code of Criminal Procedure. Reasons By letter of 15 July 1977, the civil party Irma Proxauf informed the public prosecutor of an incident involving herself and the accused (Beschuldigter) which had happened on 12 July 1977. She alleged that the accused had caused her an injury, namely a bruise on her left arm and another below her left breast, with a bunch of keys. The investigations made thereupon and the expert opinion have shown (ergeben) that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of Mrs. Anneliese Schuh who however managed to avoid the missile, while the 85-year-old Irma Proxauf standing behind her was hit. The key first struck the back of the right hand, causing a superficial abrasion, and then bounced against the left side of the above-named person's chest. No injury could be established on the chest. The injury found (festgestellte) is insignificant (geringfügig) as it does not exceed the three-day limit; the fault (Verschulden) of the accused may be described as insignificant (geringfügig), and his character gives cause to expect that he will conduct himself properly in future. Therefore the conditions of section 42 of the Penal Code are met, justifying the above decision. District Court of Innsbruck, Section 9, 10 January 1978." 13. The applicant challenged this decision before the Regional Court (Landesgericht) of Innsbruck which, on 23 February 1978, declared the appeal (Beschwerde) inadmissible on the ground that section 451 par. 2 of the Code of Criminal Procedure limited the right of appeal to the prosecutor (Ankläger). 14. On 25 January 1980, a little more than six months after the European Commission of Human Rights had accepted the application, the Generalprokurator (the public prosecutor attached to the Supreme Court (Oberster Gerichtshof) filed, with the Supreme Court, pursuant to section 33 par. 2 of the Code of Criminal Procedure, an application for annulment of the decision dated 10 January 1978 in the interests of the proper application of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes). The Generalprokurator drew a distinction between the termination of proceedings by virtue of section 451 par. 2 and their termination by virtue of section 90 par. 1 of the Code of Criminal Procedure. The former provision applied when, prior to the trial hearing, the court was satisfied that the conditions of section 42 of the Penal Code were met; where, however, no sufficient grounds existed for continuing with the prosecution, the public prosecutor should close the file (zurücklegen) on the complaint and the investigating judge should bring the proceeding to an end in accordance with the general rules laid down in section 90 par. 1 and 447 par. 1. In both cases, he said, the decisions would be taken without the formal hearing of evidence (Beweisverfahren), something which, as followed in any event from Article 6 par. 1 (art. 6-1) of the Convention - Article 6 par. 1 (art. 6-1) being a provision that has constitutional status in Austrian law -, should in principle precede any finding of guilt (Schulderkenntnis). Thus, in the submission of the Generalprokurator, section 42 of the Penal Code was not appropriate where, on the basis of the complaint or the preliminary enquiries, no offence could be established on the facts or existed in law. On the other hand, for section 42 to apply it was not essential for there to be proof of guilt, but merely a suspicion (Tatverdacht) such as would warrant the opening of preliminary enquiries or an application seeking the imposition of a penalty. A court decision terminating proceedings in accordance with section 42 could therefore only be grounded on a "suspected state of affairs" (Verdachtslage) as disclosed by the case-file: the court had to limit itself to ascertaining whether there existed against the suspect sufficient suspicion for proceeding with the prosecution and whether, on the hypothetical assumption that the suspect had indeed committed the alleged offence, he was or was not entitled to benefit from the ground for exoneration (Strafausschliessungsgrund) provided for under section 42 of the Penal Code. It seemed inadmissible to state in the reasons for such a decision conclusions on the objective and subjective aspects of the act and to take it as proved against the suspect that he had engaged in a certain course of conduct constituting a punishable act. Such an assertion in the reasons for a decision terminating proceedings amounted to a finding of guilt without any formal taking of evidence at a public hearing, which would be in violation of Article 6 par. 2 (art. 6-2) of the Convention. In the instant case, said the Generalprokurator, the District Court had clearly indicated that it accepted the account of the incident given by Mrs. Proxauf and corroborated by the police investigations and by the medical evidence, and that it disbelieved the applicant's denials which were mainly concerned with what had happened during the incident (Tathergang). He submitted that as the decision in issue was not capable of causing Mr. Adolf any direct prejudice, a finding that it had infringed the law would be sufficient. The Generalprokurator therefore moved the Supreme Court to hold that the Innsbruck District Court's decision dated 10 January 1978 was, as regards its reasoning, contrary to the law, that is to say section 451 par. 2 of the Code of Criminal Procedure read in conjunction with Article 6 par. 1 and 2 (art. 6-1, art. 6-2) of the Convention. 15. On 24 February 1980, Mr. Adolf submitted to the Supreme Court certain observations on the application for annulment. Whilst welcoming the initiative taken by the Generalprokurator, he considered that the latter had disregarded essential elements of violation of the law inherent in the impugned decision. In particular, he disputed the interpretation given by the Generalprokurator to section 42 of the Penal Code; in the applicant's view, this section in fact required the court to make a positive finding of an act fulfilling the description of a criminal offence. He relied on section 451 par. 2 of the Code of Criminal Procedure which places the judge under a duty to satisfy himself, before bringing the proceedings to a close, that the conditions stipulated under section 42 of the Penal Code are met; in order to do this, so the applicant contended, the judge must have regard to all the evidence adduced and not simply to the evidence supporting the suspicion. Mr. Adolf criticised the District Court for having failed to take into consideration evidence in his favour, for having declined to hear witnesses requested by him and for not having given him the opportunity to challenge the expert medical opinion; he alleged a breach of Article 6 par. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention. He accordingly called on the Supreme Court to find infringements of the law other than those pleaded by the Generalprokurator and to order that the proceedings be terminated under section 451 par. 1 of the Code of Criminal Procedure. 16. The Supreme Court rejected the application for annulment on 28 February 1980. In the opinion of the Supreme Court, the application of section 42 par. 1 of the Penal Code did not place the suspect in a worse position than where the case is closed for some other reason (for example, in pursuance of section 90 par. 1 of the Code of Criminal Procedure), that is to say, a closure of the case which, in general, does not involve establishing the innocence of the person concerned. Section 42 is not at all meant to be used to terminate proceedings when it is certain that an offence cannot be proved on the facts or does not exist in law. On the other hand, section 42 does not demand verification of the objective and subjective elements of the offence; indeed, this would be contrary to the main object of the section, namely procedural economy (Prozessökonomie - the principle that the court's time should be usefully employed). The person concerned thus has no right to have doubtful issues in the case clarified. Section 42 simply requires the existence of a suspicion. Even if a court describes the suspect's conduct in terms of findings of fact, any statements to this effect could not be regarded as judicial findings (Konstatierungen), within the meaning of section 270 par. 2, no. 5, of the Code of Criminal Procedure, with the attendant legal consequences. In point of fact, by reason of its basic legal character, any decision taken in pursuance of section 42 of the Penal Code can only be understood in one way: further clarification of, and possible prosecution in, a case which is already recognisable as being a trifling matter is to be avoided, not least in the interests of procedural economy. Howsoever the reasons given therefore may be worded, any such decision contains - if only because of its very nature - a negative ruling on the merits of the case and does not at all amount to a declaration, equivalent to a finding of guilt, that the suspect has (unlawfully and with criminal intent) committed a punishable act. It would certainly have been preferable had the Innsbruck District Court stated this explicitly and without ambiguity in the decision being challenged. Nonetheless, the more or less apposite choice of wording in the reasoning could not deprive the reasoning of the specific significance it had as a result of the nature of the decision given and could not, therefore, in any way adversely affect the person concerned. Since legal proof of the suspect's guilt is not the object pursued under section 42 of the Penal Code, no question arises as to the extent to which a decision given in pursuance of this provision has or has not been preceded by proceedings complying with the requirements of Article 6 par. 1 (art. 6-1) of the Convention. 17. The judgment of the Supreme Court was reproduced in an Austrian legal journal but the applicant's identity was not revealed. The accompanying commentary on the judgment referred to an article entitled "A trivial affair leads to an application against Austria" ("Aus Bagatellsache wurde Klage gegen Österreich"), which had been published in a newspaper in May 1980 and which did disclose his name, profession and place of residence. The professional association to which Mr. Adolf belongs has not instituted any disciplinary proceedings against him in respect of the facts underlying Mrs. Proxauf's complaint. According to Mr. Adolf, the file on his case, including the Innsbruck District Court's decision dated 10 January 1978, has been produced in evidence in a civil action between himself and Mrs. Proxauf in the matter of an easement (Dienstbarkeit); an order issued by the competent civil court in Innsbruck took the case-file into consideration. 18. The costs of the procedure, and notably the costs of the medical opinion, were borne by the State. The applicant himself had to pay his lawyer's fees and his own expenses. 19. In Austria, the public prosecutor (Staatsanwalt) is required by law to inquire into the correctness of any report (Anzeige) of an offence for which a prosecution must be brought as a matter of course (section 87 par. 1 of the Code of Criminal Procedure). He is obliged, as a matter of course, to prosecute in respect of any offence which appears to him to have been committed and where it is not a precondition of investigation and punishment that an application be made by the victim or some other person concerned; it is his duty to cause the competent court to take the necessary measures of investigation and punishment (section 34 par. 1). In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a complaint, the public prosecutor may have preliminary enquiries (Vorerhebungen) carried out by the investigating judge, the district courts and the police authorities (section 88 par. 1). 20. Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he shall either apply for the institution of a preliminary investigation (Voruntersuchung) or file a formal accusation (Anklageschrift, section 90 par. 1). However, in district court proceedings there is no formal process of investigation and no special procedure of accusation: all that is required is a written or oral application from the district prosecutor seeking the imposition of a penalty on the person concerned (Antrag auf gesetzliche Bestrafung, section 451 par. 1). 21. Where sufficient grounds for prosecuting the individual in question are lacking, the public prosecutor shall take no further action on the complaint and shall transmit the file to the investigating judge, together with a statement to the effect that he sees no reason to continue with the prosecution; the judge must then terminate the preliminary enquiries (section 90 par. 1). This provision applies, mutatis mutandis, to district court proceedings (section 447 par. 1). Under the terms of section 90 par. 2 of the Code of Criminal Procedure, the public prosecutor may alternatively ask the investigating judge to hold that the conditions of section 42 of the Penal Code are met. In cases before a district court, the decision terminating proceedings is governed by section 451 par. 2 of the Code of Criminal Procedure, which provides (translation from German): "If the court is satisfied that the conditions laid down in section 42 are met, it shall terminate the proceedings by a decision. The public prosecutor may lodge an appeal against any such decision ..." 22. Section 42 of the Penal Code reads as follows (translation from German): "(1) Where an act requiring public prosecution as a matter of course involves liability to no more than a fine, a custodial sentence not exceeding one year or both, the act shall not be punishable (strafbar) if 1. the guilt (Schuld) of the author of the act is slight (gering); 2. the act has had no or only trifling consequences, and if addition 3. punishment is not necessary in order to deter the author of the act or other persons from committing criminal offences. (2) The decision whether or not the conditions of paragraph (1) hereof are met shall be taken by the court; where the court decides in the affirmative, it shall bring the proceedings to a close no matter what stage they may have reached." Section 42 was introduced into the new Austrian Penal Code which entered into force on 1 January 1975, and is aimed at avoiding criminal trials in trivial cases, notably for reasons of procedural economy; the section is headed "acts not meriting punishment" ("mangelnde Strafwürdigkeit der Tat"). The Supreme Court and the great majority of legal commentators regard it as a clause which is not concerned with mere procedure but which provides a substantive ground for exonerating the accused (sachlicher Strafausschliessungsgrund). 23. A decision taken by a court in pursuance of section 42 to terminate proceedings is not entered in the criminal record of the person concerned. The file relating to a case closed in this manner may be used in other legal (and disciplinary) proceedings, as may, in principle, the case-file in any legal action whatever its outcome. According to Mr. Adolf, anyone may go to the court and consult the register of cases and the register of names and, at least as far as the former is concerned, ask for an extract. The Government contested these assertions, save apparently as regards the possibility of having access to the register of names. The latter simply contains a reference to the register of cases without giving any indication as to the nature of the litigation. 24. As a result of the present case, two circulars were issued on 15 January 1979 and 24 March 1980 by the relevant Austrian authorities drawing the attention of the courts to the problems raised by the application of section 42 of the Penal Code and to the need for a careful wording of the relevant decisions (see paragraphs 33 and 34 of the report of the Commission).
| 0
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train
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001-97114
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ENG
|
BGR
|
CHAMBER
| 2,010
|
CASE OF GERDZHIKOV v. BULGARIA
| 4
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Violation of Art. 6-1;Violation of Art. 13+6-1
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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4. The applicant was born in 1957 and lives in the village of Rosen. 5. In 1992 the applicant was acting as a liquidator of an agricultural cooperative. 6. On an unspecified date in 1993 a preliminary inquiry was opened against him by the police in Pazardzhik. It concerned his alleged mismanagement of property of the co-operative between April and December 1992. On 2 February 1993 the police confiscated the applicant's passport. In April 1993 and in the beginning of June 1993 he was questioned. 7. On 29 June 1994 the Pazardzhik regional public prosecutor's office instituted criminal proceedings against the applicant for mismanaging the assets of the co-operative thus causing it substantial pecuniary damage. 8. On an unspecified date in 1994 the investigator to whom the case had been assigned imposed a prohibition on the applicant's leaving the country. 9. No investigative steps were taken after the opening of the criminal proceedings and the applicant was never formally charged or indicted. 10. On at least thirteen occasions between 26 September 1994 and 5 November 2003, pursuant to oral requests by the applicant to terminate the proceedings and lift the travel ban, the Pazardzhik regional public prosecutor's office sent letters to the Pazardzhik Regional Investigation Service with instructions to close, and forward to it, the applicant's case file. Apparently, those instructions were not complied with. 11. On 2 July 2004 the Pazardzhik regional public prosecutor's office terminated the criminal proceedings against the applicant, finding that the limitation period for the prosecution of the respective offence had expired in 1997. 12. On 11 November 2004 the police lifted the travel ban imposed on the applicant (see paragraph 8 above). 13. A legislative amendment that entered into force in June 2003 introduced the possibility for an accused person to request that his case be brought for trial or terminated if the investigation had not been completed within a time-limit of one or two years, depending on the charges (Article 239a Code of Criminal Procedure, as in force until April 2006). That possibility applied with immediate effect in respect of investigations opened before June 2003. 14. Under the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) individuals can in certain circumstances seek damages for unlawful acts of the authorities. The Act does not mention excessive length of proceedings as a ground for an action for damages. Nor is there any practice in the domestic courts of awarding damages for excessive length of proceedings.
| 1
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train
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001-22732
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ENG
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TUR
|
ADMISSIBILITY
| 2,002
|
O.Ö. v. TURKEY
| 4
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Inadmissible
|
Ireneu Cabral Barreto;Mark Villiger
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The applicant is a Turkish national, who was born in 1961 and lives in Manisa. The facts of the case, as submitted by the parties, may be summarised as follows. Before his discharge from the army the applicant was the president of the Histology and Embryology Department at the Gülhane Military Hospital. On 19 December 1997 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 Nation’s Standpoint (Milli Görüş) movement. He established contacts with two other officers who were discharged from the army on account of their involvement in extreme religious movements. The applicant was involved in disseminating the ideology of the Nation’s Standpoint. He had an antisocial character and his wife carried an Islamic scarf. He refused to participate in a saving fund on the ground that his religious belief was against the notion of interest which such a fund involved. 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
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train
|
001-72118
|
ENG
|
EST
|
ADMISSIBILITY
| 2,006
|
MIKOLENKO v. ESTONIA
| 4
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Inadmissible
|
Nicolas Bratza
|
The applicants, Mr Nikolai Mikolenko, Ms Ljubov Mikolenko and their son Mr Oleg Mikolenko, are Russian nationals, who were born in 1954, 1955 and 1985, respectively, and live in Estonia. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Mr Nikolai Mikolenko, the first applicant, was born in Ukraine. At the time the application was lodged with the Court, he was married to Ms Ljubov Mikolenko, the second applicant, who was also born in Ukraine. Their son, Mr Oleg Mikolenko, the third applicant, was born in Estonia. The first and the second applicant have also another son, Bogdan, who was born in 1980. He has a permanent residence permit in Estonia. The first applicant served in the Soviet and Russian armed forces from 1975 to 1994, when he retired as a warrant officer. From 1977 to 1983 he served in the territory of the German Democratic Republic. In 1983 he was transferred to military unit no. 12129 in the Baltic military district. The first and the second applicants have been living in Estonia since then. Since 1989 the applicants have been registered as inhabitants in the apartment at Kolde puiestee 84-1 in Tallinn. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory. On 4 August 1994 the first applicant was assigned to the reserve forces by the decree of the commander of the military unit no. 12129. According to the transcript of the decree, he was discharged from the military unit and excluded from the provision of all types of supplies as of 18 October 1994. As from 1994 the first applicant worked as a manager in a private company. The second applicant has been working as a nurse in a kindergarten since 1983. On 31 March 1995 the first applicant submitted an application for a residence permit in Estonia. At that time his parents were living in Ukraine. The first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America (USA). On 9 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he would receive housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it. On 10 April 1995 the second applicant privatised (purchased on favourable conditions from the municipality) the apartment at Kolde puiestee 84-1 in Tallinn. According to the data in the land register, as at 6 December 2004, this apartment was still in the ownership of the second applicant. In the form filled out on the basis of the interview conducted with the first applicant by a staff of the aid programme on 18 April 1995 concerning the grounds of participation in the programme and the amount of financing by the bank, it was noted that the first applicant was entitled to enrol in the programme. According to the document, in reply to the question how he would describe his and his family’s feelings in connection with leaving the Baltic countries, he chose the following answer from among the multiple choices: “we are very happy about the departure”. In reply to the question why he had chosen St. Petersburg as the possible new residence, he answered: “relatives”. To the question what he would miss most when moving to the new place, he replied colleagues of his military unit. On 14 June 1995 the first applicant, holder of the certificate SP-223, issued by the aid programme, concluded a purchase agreement for an apartment at Savushkin Street 134-3-5 with the St. Petersburg City Construction Authority. According to the agreement, the price of the apartment was 27,540 US dollars (USD), of which USD 25,000 was to be paid by the United States Agency for International Development and USD 2,540 by the first applicant. On 15 June 1995 the apartment purchased by the first applicant was registered as his property by the relevant bureau of the St. Petersburg City Government. According to the information from the State Registry of the Russian Federation, submitted by the respondent Government in the context of the proceedings concerning the applicants’ legal aid request, as at 3 May 2005 the apartment was still in the ownership of the first applicant. On 11 July 1996 the first and the second applicants were granted temporary residence permits in Estonia for two years. The third applicant received a temporary residence permit on 25 November 1996. The date of its expiry was the same as the expiry date of the residence permits of his parents, i.e. 11 July 1998. On 12 July 1998 the temporary residence permits of the applicants were extended until 12 July 1999. In July 1999 their residence permits were further extended until 1 January 2000. On 1 October 1999 an amendment to the Foreigners’ Act (Välismaalaste seadus) entered into force so as to exclude the possibility of issuing or extending residence permits for persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme. On 8 May and 14 June 2000 the Minister of the Interior issued orders by which the applicants were refused extensions of their residence permits. The refusals were based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired from there. This ground applied also to the second and the third applicants as family members (spouse and minor child) of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus), which, by a judgment of 16 November 2001, dismissed the complaint. It observed that the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. According to the Foreigners’ Act such persons could not be granted extensions of residence permits. In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They claimed that they should have been exceptionally granted residence permits under section 12(5) of the Foreigners’ Act. On 10 October 2002 the appeal was heard at the Tallinn Court of Appeal. The applicants did not appear at the hearing. On the day before the hearing the first applicant had submitted to the Court of Appeal a request to adjourn the hearing due to his deteriorated health condition. The Court of Appeal, nevertheless, held the hearing. It found that the first applicant had not provided a medical certificate and that he had failed to specify the reasons why he had been hindered from taking part in the hearing. The second and third applicants had not requested that the hearing be adjourned. By a judgment of 25 October 2002 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. It noted that the first applicant had served in the Russian army at the time the treaty concerning withdrawal of the Russian armed forces from Estonia had been concluded (26 July 1994). Accordingly, he was subject to removal, together with his family members, under the treaty. The Court of Appeal also found that it was established that the applicants had received accommodation abroad within the framework of an international aid programme and that they had committed themselves to leaving Estonia. In an appeal to the Supreme Court (Riigikohus) the applicants complained that their right to take part in the hearing at the Court of Appeal had been violated. They maintained that their commitment to leave the country had not been made to the Estonian authorities. They also complained about the retroactive application of the Foreigners’ Act and that they had been discriminated against, since several persons who had taken part in the aid programme had, in fact, been granted extensions of residence permits. On 17 April 2003 the Supreme Court upheld the judgments in substance, with modifications to their reasoning. The Supreme Court rejected the complaint concerning the inability of the applicants to take part in the hearing at the Court of Appeal. It noted that the applicants’ requests to adjourn the hearing had been granted repeatedly and found that, according to the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), the Court of Appeal could have rejected the appeal on the grounds of their failure to appear. With respect to the substance of the appeal, the Supreme Court found that the interference with the applicants’ right to family life had been proportionate to the aim pursued by the State – to ensure that the professional servicemen of the former Soviet army be withdrawn from Estonia. The Supreme Court deemed the fact that Estonia had not been a party of the international aid programme irrelevant to the legitimacy of the legislation prohibiting the extension of residence permits for persons who had benefited from the programme. On 6 June 2003 the third applicant was granted a temporary residence permit in Estonia with validity until 5 June 2008, since he had attained the age of majority and thus could no longer be considered as a family member of a retired officer of the armed forces. On 18 June 2003 the first and the second applicants dissolved their marriage. On 21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the first applicant to leave the country on 17 September 2003 at the latest. On 29 July 2003 the first applicant lodged a complaint with the Tallinn Administrative Court requesting that the order be invalidated. On 11 August 2003 the Board refused to consider the second applicant’s request for a residence permit on an exceptional basis. The Board noted that, according to the applicable legislation, a request for a residence permit had to be submitted, as a rule, to an Estonian foreign representation. It established no circumstances which prevented the second applicant from doing so. On an unspecified date in 2003 the first applicant submitted to the Supreme Court a request to reopen the proceedings (teistmisavaldus) and to quash the previous administrative court judgments. He claimed that he was a subject of the Estonian-Russian agreement concerning the social guarantees to retired military personnel of the Russian armed forces in Estonia and, therefore, he and his family members could have lawfully been refused an extension of the residence permit only in the event that it had been established that he posed a threat to the national security of Estonia. On 10 September 2003 the Supreme Court refused the request. On 24 October 2003 the Tallinn Administrative Court dismissed the first applicant’s request to invalidate the 21 July 2003 order of the Board. He appealed against the judgment to the Tallinn Court of Appeal. The Court has not been furnished with information concerning the outcome of the appeal. On 29 October 2003 the police arrested the first applicant for illegally residing in Estonia. On 30 October 2003 the Tallinn City Court (Tallinna Linnakohus) imposed on him a fine of 1200 kroons (77 euros). Apparently he was released after the hearing, having been kept in detention for about 24 hours. On 31 October 2003 the Tallinn Administrative Court decided, upon a request by the police, that the first applicant had to be taken to a deportation centre for execution of the deportation order. The Administrative Court authorised his detention for up to two months starting from 3 November 2003, his immediate deportation being impossible, since he had not presented a valid identification document (the applicant could not remember where his valid passport was). According to a medical certificate submitted to the Court, the first applicant was hospitalised between 2 and 4 November 2003. He has been detained in the deportation centre since November 2003. His detention has been extended by the Tallinn Administrative Court once every two months. The Board has been, unsuccessfully, attempting to expel him to Russia. On 3 March 2005 the first and second applicants lodged new complaints to the Court, concerning the first applicant’s prolonged detention and the conditions of detention in the deportation centre. These complaints have been registered as a separate application (no. 10664/05). In the meantime, on 9 March 2004 the Board refused the first applicant’s request for a residence permit. He challenged the refusal in the Tallinn Administrative Court, which on 19 May 2004 dismissed the complaint. The judgment was upheld by the Tallinn Court of Appeal. On 20 April 2004 the second applicant was served by the Board with an order to leave the country. On 28 June 2004 she was refused a residence permit. On 26 April 2005 the Board again refused the first applicant’s request for a residence permit. Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision. Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case. According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia. The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers. According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme. In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme). In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned. Participation in the Programme was voluntary; no enrolment fee was required. After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994. According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year. The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security.
| 0
|
train
|
001-93088
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF WRONSKI v. POLAND
| 4
|
Violation of Article 6 - Right to a fair trial
|
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant was born in 1963 and lives in Gdynia. 6. On 30 March 1993 the Chief of the Gdańsk Regional Police Headquarters (Komenda Wojewódzka Policji) dismissed the applicant from the police service (he was held accountable for accepting bribes). 7. On 14 May 1993 the Chief of the Principal Police Headquarters (Komenda Główna Policji) upheld the decision. 8. In November 1992 the Gdynia prosecution authorities charged the applicant, a serving police officer at the time, with numerous counts of fraud. 9. On 30 June 1993 a bill of indictment against the applicant and eleven other suspects was lodged with the Gdynia District Court (Sąd Rejonowy). 10. The applicant did not submit any information concerning the court’s hearings between July 1993 and January 2005. 11. Two hearings, scheduled on 1 February and 8 March 2005, were adjourned as some of the suspects failed to appear. 12. Two hearings, scheduled on 12 April and 10 May 2005, were cancelled due to the judge’s illness. 13. On 7 June 2005 the court severed the charges against the applicant and four other accused. 14. Subsequently, the trial court held hearings on 12 and 26 July, 6 September, 12 October, 17 November and 12 December 2005, and 18 January, 15 February, 15 March, 19 April, 5 and 29 June and 19 July 2006. 15. On 21 July 2006 the Gdynia District Court convicted the applicant as charged and sentenced him to one year and six months’ imprisonment and a fine of 800 Polish zlotys (PLN). 16. On 25 September 2006 the applicant appealed. 17. On 11 December 2006 his appeal was dismissed by the Gdańsk Regional Court (Sąd Okręgowy). 18. On 2 October 2006 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) and asked for just satisfaction. 19. On 13 November 2006 the Gdańsk Regional Court dismissed his complaint. It limited its examination of the length of proceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act, the Regional Court found that there were no delays for which the District Court could be held responsible. Pointing to the complexity of the case and the voluminous documentation gathered in the proceedings it held that the proceedings had been conducted with due diligence and within a reasonable time. 20. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
| 1
|
train
|
001-92508
|
ENG
|
HUN
|
CHAMBER
| 2,009
|
CASE OF FERENC ROZSA AND ISTVAN ROZSA v. HUNGARY
| 3
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
6. The applicants were born in 1951 and 1949, respectively, and live in Budapest. 7. The applicants are respectively 50% and 10% shareholders in D. Ltd. By decisions of the Budapest Regional Court and the Supreme Court, in 1998 the liquidation of D. Ltd was ordered and M. Ltd. appointed liquidator. 8. In 2001 the applicants brought an official liability action against the two courts involved, claiming damages for the liquidation, which in their view had been ordered unlawfully. 9. On 6 December 2002 the Pest County Regional Court dismissed the action, holding that, although the liquidation had indeed been ordered unlawfully, the two courts’ culpability was not so extensive as to justify the establishment of their tort liability. 10. On appeal, on 11 December 2003 the Budapest Court of Appeal upheld the first-instance decision but changed its reasoning. It held that the applicants had no locus standi in the case, since their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name. 11. The applicants filed a petition for review with the Supreme Court. They pleaded that their claim did not concern any loss suffered by the company itself. Rather, they personally sought compensation for the loss in value of their own shares which they had suffered on account of the unlawfully ordered liquidation. 12. On 10 February 2005 the Supreme Court dismissed the applicants’ petition, reiterating the position that they had no locus standi in the case. This decision was served after 11 March 2005.
| 1
|
train
|
001-4564
|
ENG
|
GRC
|
ADMISSIBILITY
| 1,999
|
TSARKNIAS v. GREECE
| 4
|
Inadmissible
|
Marc Fischbach
|
The applicant is a Greek national, born in 1942 and living in Athens. He is represented before the Court by Mrs I. Kourtovik, a lawyer practising in Athens. The applicant considers himself to be part of a Macedonian ethnic minority in Greece. In 1973 he was ordained a priest in the Greek Orthodox Church. He used to live and work in the northern district of Florina and during the 1970s and 1980s became increasingly involved in the advocacy of greater cultural rights for Macedonian Greeks. In April 1992, he became a monk in the monastery of St George near Skopje. In February 1993 he was expelled from the Greek Orthodox Church. He claims that, since 1989, he has been arrested thirteen times and prosecuted for a series of offences, in particular that of abusing of his position as a priest. In January 1992 the applicant was involved in an incident in his church in the village of Aghios Athanasios. The bishop of the city of Florina, who arrived at the church to attend the mass celebrated by the applicant, was confronted with thirty or forty persons shouting insults at him and calling for the Church to support Macedonian cultural rights. The applicant was accused of disrupting a religious congregation, abusing his position as a priest and disturbing citizen’s peace. On 12 February 1996, he was tried in absentia (because he was unable to attend for health reasons) by the Salonica Criminal Court and was sentenced to forty months’ imprisonment for having disrupted a Christian congregation. The Criminal Court had previously rejected a request to adjourn the hearing. After having heard six witnesses for the prosecution, it found that on 29 December 1990, the applicant incited the congregation to violent disorder by saying to them that if the bishop arrived at the church by saying that “you must make him understand that you don’t want him to come in and if he does, blood will flow”. It also found that on 1 January 1992, while the bishop had managed to enter the church and had started celebrating the mass, the applicant unplugged the church’s microphones. The applicant appealed against this judgment to the Salonica Court of Appeal composed of three judges, which heard the case on 12 February 1997 in the presence of the applicant and his lawyer. Ten witnesses were heard, five for the prosecution and four for the defence. The Court of Appeal delivered its judgement on the same day. It found the applicant guilty of disturbing the citizen’s peace (Article 190 of the Code of Criminal Procedure), of disrupting a religious congregation (Article 200) and of abusing his position as a priest (Article 196) ; it upheld the applicant’s conviction but reduced his prison sentence to twenty-four months and converted it into a pecuniary penalty of 1 500 drachmas (GDR) per day. On 8 April 1998, the applicant appealed on points of law. He maintained that although he had invited the Appeal Court to hear ten witnesses on his behalf, the president of the Court refused to hear two of them and that this refusal had not been included in the minutes of the hearing although the applicant’s lawyer had invited the Court to do so. He also alleged that the Court of Appeal, contravening Article 339 § 2 of the Code of Criminal Procedure, had interrupted the taking of evidence and had examined in between some other small cases ; as a result, the applicant had lost the thread of his defence in violation of Article 6 of the European Convention. He maintained that the judgment of the Court of Appeal was not reasoned because it had merely reproduced the wording of the indictment and had not specified in what way the accused had actually committed the offences. In addition, he alleged that the members of the Court of Appeal and the Public Prosecutor lacked impartiality towards him. Finally, he alleged that the fact that the Court of Appeal refused to call all the witnesses for the defence amounted to a lack of public hearing. The Court of Cassation dismissed the appeal on 11 November 1997. It noted that the applicant failed to appeal to the Court of Appeal sitting in full when its president rejected the request to hear six witnesses for the defence (Articles 333 § 2, 335 § 2 and 170 § 2 of the Code of Criminal Procedure). It also noted that it did not appear from the minutes that any interruption of the taking of evidence had ever occurred during the hearing. It considered that the Court of Appeal had sufficiently motivated its judgement and held that the plea of impartiality of the judges was not, according to Greek law, a ground for quashing the judgment of the Court of Appeal.
| 0
|
train
|
001-91794
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF DOROTA AND ZBIGNIEW NOWAK v. POLAND
| 4
|
Violation of Article 6 - Right to a fair trial
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
|
4. The applicants were born in 1962 and 1965 respectively and live in Ostrowiec Świętokrzyski. 5. On 27 November 1995 the applicants lodged with the Kielce Regional Court (Sąd Okręgowy) a claim for payment against Z.G. and J.D. 6. On 7 May 2001 the first instance court gave judgment. The defendants appealed. 7. On 13 March 2002 the Kraków Court of Appeal (Sąd Apelacyjny) partly remitted the case. 8. On 28 January 2004 the Kielce Regional Court gave judgment. 9. The proceedings were terminated on 9 November 2004 by the final judgment of the Kraków Court of Appeal. 10. On 7 February 2005 the applicants lodged with the Kraków Court of Appeal a complaint about a breach of the right to a trial within a reasonable time. They specifically relied on section 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) which entered into force on 17 September 2004. 11. The applicants sought a ruling declaring that the length of the proceedings before the Kielce Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500). 12. On 16 March 2005 the Kraków Court of Appeal gave a decision in which it acknowledged the excessive length of the proceedings before the Kielce Regional Court. It awarded the applicants jointly and severally PLN 10,000 in just satisfaction. 13. On 9 May 2001 the applicants lodged a claim for payment against the City Office (Urząd Miasta) and District Office (Starostwo Powiatowe) with the Kielce Regional Court. 14. The first hearing was held on 24 October 2001. 15. On 29 October 2001 the applicants specified that they wished to continue the proceedings only against the City Office. 16. The hearing scheduled for 3 April 2002 was adjourned at the applicants’ request. 17. On 22 July 2002 the court held a hearing. 18. In a letter of 2 September 2002 the applicants requested the court to accelerate the proceedings and to list a hearing. 19. On 16 October 2002 and 12 March 2003 the court held hearings. 20. On 18 July, 30 September and 24 October 2003 the court ordered that an expert report be obtained. The expert’s report was submitted to the court on 3 January 2004. 21. On 11 February, 10 March, 28 July and 22 September 2004, 14 March and 30 May 2005 the court held further hearings, one of which was adjourned at the applicants’ request. 22. On 9 June 2005 the Kielce Regional Court gave judgment. The parties filed their appeals on 1 August 2005. 23. On 18 January 2006 the Kraków Court of Appeal upheld the first instance judgment. 24. On 10 June 2005 the applicants lodged with the Kraków Court of Appeal a complaint about a breach of the right to a trial within a reasonable time under the 2004 Act. 25. The applicants sought a ruling declaring that the length of the proceedings before the Kielce Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500). 26. On 25 July 2005 the Kraków Court of Appeal dismissed the applicants’ complaint. The court found that the Regional Court had given judgment on 9 June 2005, thus at the time of the examination of the complaint the proceedings before the court of first instance had terminated. The court further held that the purpose of the complaint about a breach of the right to a trial within a reasonable time under the 2004 Act was to accelerate the proceedings and not only to afford financial compensation. The court consequently held that in the facts of the case there was no basis for declaring that the length of the proceedings had been excessive. 27. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
| 1
|
train
|
001-68816
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,005
|
BRINKS v. THE NETHERLANDS
| 3
|
Inadmissible
|
Mark Villiger
|
The applicant, Mr Jan Herman Brinks, is a Netherlands national who was born in 1957 and lives in Groningen. Between 1987 and 1990 the applicant lived in the German Democratic Republic (“the GDR”), where he carried out academic research for a dissertation. During his stay in the GDR, he also worked as a freelance journalist for Dutch daily and weekly papers. Like most aliens from capitalist countries living in the GDR, the applicant was kept under surveillance by the GDR intelligence authorities. After his return to the Netherlands in 1990, the applicant suspected that he had attracted the attention of the then Netherlands National Security Service (Binnenlandse Veiligheidsdienst – “the BVD”) as he had the impression that his telephone conversations were being intercepted. After obtaining a magna cum laude doctorate degree in 1991, the applicant was unable to find suitable employment in the Netherlands. According to the applicant, this situation was linked to the often critical positions he had adopted in his academic and journalistic work, which, he claimed, had considerably irritated his fellow historians and politicians in the Netherlands. He submitted that Netherlands academics had repeatedly insinuated that he was a “fellow traveller” of communism. The applicant suspected that his publications and stays in the GDR and the mistrust displayed by his peers were having a negative effect on his career prospects in the Netherlands. He therefore decided to move abroad, and worked as a researcher and journalist in Germany, the United States of America and the United Kingdom in that order. The applicant returned to the Netherlands in 1998. On 11 January 2000 the applicant requested the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijkrelaties – “the Minister”), to inform him as to what data were contained in possible files held on him by the BVD. In his decision of 31 October 2000, with further additions in a subsequent decision of 13 February 2001, the Minister stated – referring to Article 10 § 1 (b) of the Transparency of Public Administration Act (Wet Openbaarheid van Bestuur – “the WOB”) and the relevant case-law under this provision of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), and Article 14 of the Intelligence and Security Services Act (Wet op de Inlichtingen- en Veiligheidsdiensten) – that no information would be provided on whether or not the BVD held current data about the applicant, since such a move could give an insight into BVD sources, working methods and current level of knowledge. The Minister had, therefore, treated the applicant’s request as a request for access to outdated information possibly held on him by the BVD. Apart from outdated material from a “sister organisation abroad”, no outdated information about the applicant had been found. After the “sister organisation” had granted permission for disclosure, the applicant was granted access to the outdated information in so far as the contents would not lead to disclosure of BVD sources or working methods, or of personal data relating to third parties. The outdated information disclosed to the applicant consisted of (parts of) six documents, including (parts of) two letters in German concerning the applicant and a copy of a letter the applicant had written on 7 September 1977 to the Public Prosecutor’s Office at the West Berlin Regional Court. In the letter, the applicant criticised in virulent terms recent searches carried out by the German investigating authorities of the homes of persons referred to by the applicant as “enemies of the Constitution and other enemies” (Verfassungsfeinden und sonstigen Feinden). The applicant ended the letter with the phrase “Death to the ‘German rule-of-law State’” (Tod an den “deutschen Rechtsstaat”). Dissatisfied with the limited information disclosed, the applicant filed an objection (bezwaar), which was dismissed by the Minister on 17 August 2001. The applicant lodged an appeal against that decision with the Groningen Regional Court (arrondissementsrechtbank), arguing, inter alia, that, as the BVD information about him had apparently been gathered during an investigation conducted in the late seventies in a Cold War context, the information could no longer be considered “current” but should instead be classified as “outdated”. The applicant’s appeal was dismissed on all points but one by the Groningen Regional Court in a judgment of 17 January 2003. With the applicant’s permission, as required by Article 8:29 § 5 of the General Administrative Law Act (Algemene Wet Bestuursrecht – “the AWB”), the Regional Court had been given access to undisclosed BVD information, without that information being disclosed to the applicant. The Regional Court held that one particular document that had not been disclosed – it being unclear whether or not it did in fact concern the applicant although it did have a link with him – should not have been withheld from the applicant under Article 16 § 1 of the 1987 Act, as it had not been established that the document contained personal data relating to a third party. The Regional Court quashed the Minister’s decision in respect of the document, finding that no adequate reasons had been given. It did, however, add that – except on that one point – it saw no reason to find the Minister’s decision incorrect. On 27 February 2003 the applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State. On 5 March 2003 the Minister took a further decision granting the applicant access to the document referred to in the Regional Court’s ruling of 17 January 2003 and confirming the remainder of his initial decision. The applicant lodged an appeal against the new decision of 5 March 2003. On 14 January 2004 the Administrative Jurisdiction Division – which, with the applicant’s permission, had also been given access to undisclosed BVD information without that information being disclosed to the applicant – dismissed the applicant’s appeal against the Regional Court judgment of 17 January 2003, upheld that judgment and dismissed the applicant’s appeal against the Minister’s decision of 5 March 2003. That decision, in its relevant parts, reads: “2.2. Under Article 3 § 1 of the WOB, anyone can address a request to a public body ... for information set out in documents concerning a public administrative matter. Pursuant to [Article 3 § 3 of the WOB] a request for information will be granted, subject to the provisions of Articles 10 and 11 [of the WOB]. Pursuant to Article 10 § 1 (b) of the WOB, no information shall be provided which could undermine the security of the State. 2.3. In the [impugned] decision the Minister informed the appellant that, after a thorough search of the archives, some outdated information had been found which was disclosed – in paraphrased form – to the applicant, and that no other outdated information on him had been found. In so far as the appellant’s request concerned current information, the Minister gave a reasoned explanation for not disclosing information that could give an insight into the current level of BVD knowledge, leaving open whether or not current information about the appellant was being held. 2.4. The Regional Court has concluded that, ...[apart from one document]..., it saw no reason to find the decision [of 17 March 2001] incorrect. 2.5. The appellant disagrees with this conclusion of the Regional Court. According to the appellant, the BVD holds much more outdated information about him than it pretends. In this connection the appellant refers to the remark in the letter of 17 March 1978 – one of the classified documents disclosed to the appellant – that an investigation of the applicant was still running. As the Minister qualified the letter of 17 March 1978 as “outdated”, the investigation mentioned in it should also be regarded as outdated, in his view, with the result that the documents relating to the investigation should be disclosed to him. The appellant fails to see why [access to] this information, which was gathered in the context of the Cold War, should be refused on the ground that it could give an insight into current sources and working methods of the BVD. The appellant cannot agree with the Regional Court’s reasoning on this point. 2.6. This argument fails. Having followed the procedure set out in Article 8:29 of the AWB, the Administrative Jurisdiction Division is, like the Regional Court, of the opinion that, apart from the [one document] disclosed to the appellant in the meantime, there is no reason to find that the [impugned] decision is incorrect. There is no evidence that outdated information concerning an investigation of the appellant has remained undisclosed. The question whether the BVD, now the General Intelligence and Security Service [Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”], holds information on the appellant which, in view of the tasks performed by the service, remains of a current nature, does not have to be answered. In this connection, the Regional Court has correctly referred to the settled case-law of the Administrative Jurisdiction Division, as it emerges from, inter alia, the rulings of 14 December 1998 concerning no. H01.97.1354, (Netherlands Administrative Law Reports (Administratiefrechtelijke Beslissingen) AB 1999, 93) and 1 July 1999 concerning no. H01.98.1287, (Administrative Case-law Reports (Jurisprudentie Bestuursrecht) JB 1999/198), which held that the Minister could refrain from disclosing information that could give an insight into the current level of knowledge held by the BVD, now the AIVD, on the basis that disclosure of such information could undermine the functioning of the service and hence the security of the State. 2.7. It follows from the above that the appeal is unfounded. The impugned decision must be upheld. The appeal directed against the decision of 5 March 2003 is equally unfounded.” No further appeal lay against this ruling. Until 1987 the Netherlands intelligence and security services were governed by the Royal Decree of 5 August 1972 regulating the duties, organisation, working methods and cooperation of the intelligence and security services (Koninklijk Besluit van 5 augustus 1972, Stb. 437, houdende regeling van de taak, de organisatie, de werkwijze en de samenwerking van de inlichtingen- en veiligheidsdiensten). In its report of 3 December 1991 under former Article 31 of the Convention in the case of R.V. and Others v. the Netherlands (nos. 14084/88, 14085/88, 14086/88, 14087/88, 14088/88, 14109/88, 14173/88, 14195/88, 14196/88 and 14197/88) the European Commission of Human Rights found that the provisions of the Royal Decree of 5 August 1972 were incompatible with the requirements of Article 8 of the Convention, in that they lacked precision and adequate safeguards. The Royal Decree of 5 August 1972 was subsequently replaced by the 1987 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten – “the 1987 Act”), which entered into force on 1 February 1988. It provided for two branches of the intelligence and security services, namely the National Security Service (“the BVD”) and the Military Intelligence Service (Militaire Inlichtingendienst – “the MID”). Under Article 8 § 2 (a) of the 1987 Act, the BVD was entrusted, inter alia, with the task of collecting information about organisations or persons who, by virtue of the aims they pursued or their activities, gave rise to serious suspicions that they constituted a danger to the continued existence of the democratic legal order or to the security or other vital interests of the State. It was also given responsibility for carrying out security screening of public officials (Article 8 § 2 (b) of the 1987 Act) and promoting measures aimed at securing information which needed to be kept secret in the interests of the State and information concerning those parts of the public service and industry which, in the view of the minister responsible, were of vital importance to society (Article 8 § 2 (c) of the 1987 Act). Article 14 of the 1987 Act provided: “The coordinator and the heads of the [intelligence or security] services are to ensure: (a) the secrecy of information to be treated as classified and of the sources of that information. (b) the safety of persons with whose cooperation the information is being gathered.” Article 16 of the 1987 Act read, in its relevant part: “1. Personal data shall be gathered, recorded and provided to third parties by a[n] [intelligence or security] service only in so far as this is strictly necessary for the performance of its tasks as defined in this Act. 2. ... 3. The Minister concerned shall, in agreement with the Minister of Justice, determine rules concerning the management of the collections of personal data that are being held by the [security] service concerned. 4. The rules referred to in the previous paragraph shall at least contain regulations concerning: (a) the purpose of the collections; (b) the secrecy of the data recorded therein; (c) the monitoring of the accuracy of those data; (d) the length of time for which data may be stored; (e) other grounds for the removal of data from the collections; (f) the destruction of removed data. 5. ...” The Minister of the Interior, in agreement with the Minister of Justice, issued the BVD Privacy Regulation (Privacyregeling BVD), which contained further rules within the meaning of Article 16 of the 1987 Act. This Regulation entered into force on 5 July 1988. According to Article 10 § 1 of the Privacy Regulation, persons about whom data had been recorded did not have a right of access to their personal data, nor did they have the right to learn whether or not personal data had in fact been recorded about them. In two rulings given on 16 June 1994 (one of which was published – see AB 1995, 238), the Administrative Jurisdiction Division found that the provisions of the 1987 Act fell short of the requirements of Articles 8 and 13 of the Convention. It found that the provisions of the 1987 Act did not comply with the requirement of foreseeability under the Convention with regard to the categories of persons about whom information could be collected, the circumstances in which information could be collected and the means that could be used for obtaining information. It further considered that a person who had been refused access to information should be given reasons for such refusal instead of a general statement referring to national security. It also found that the two existing control mechanisms could not be regarded as effective in that the National Ombudsman did not have the power to give any binding decisions and the Standing Committee on Intelligence and Security Services of the Lower House (Vaste Kamercommissie voor de inlichtingen- en veiligheidsdiensten uit de Tweede Kamer) did not have a statutory basis. Consequently, the Minister of the Interior could no longer determine requests for access to information under the BVD Privacy Regulation, but had to apply the criteria of the Transparency of Public Administration Act (“the WOB”) in dealing with such requests. This meant that each request for access to information had to be examined on an individual basis and that reasons had be given in the event of a refusal. Article 3 §§ 1 and 3 of the WOB reads: “1. Anyone can submit a request for information contained in documents about a public administration matter to a public administration body or to an institution, service or company working under the responsibility of a public administration body. 3. A request for information shall be granted subject to the provisions of Articles 10 and 11 [of the WOB].” Article 7 of the WOB provides: “1. The public administration body shall provide the information in respect of the documents that contain the requested information by (a) providing a copy thereof or providing the contents word for word in another form, (b) allowing access to the contents, (c) providing an excerpt or a summary of the contents, or (d) providing information therefrom. 2. In the choice between the various forms of information referred to in the first paragraph, the public administration body shall take into account the petitioner’s preference and need to ensure smooth operation of its activities.” Article 10 § 1 (b) of the WOB states: “No information shall be made available under this Act in so far as this: ... (b) might undermine the security of the State;” Proceedings under the WOB are governed by the provisions of the General Administrative Law Act (“the AWB”). Article 8:29 of the AWB provides: “1. Parties who are obliged to submit information or documents may, when there are substantial reasons for so doing, refuse to provide information or submit documents, or inform the court that it alone may take cognisance of the information or documents. 2. Substantive reasons shall in any event not apply to a public administration body in so far as the obligation exists, pursuant to the Transparency of Public Administration Act, to grant requests for information contained in documents. 3. The court shall decide whether the refusal or limitation on taking cognisance referred to in the first paragraph is justified. 4. Should the court decide that such refusal is justified, the obligation shall not apply. 5. Where the court decides that the restriction on taking cognisance is justified, it may, with the permission of the other party, give a ruling on the basis of, among other factors, the information or documents concerned. If permission [by the other party] is withheld, the case shall be referred to another bench.” In the light of the rulings given on 16 June 1994 by the Administrative Jurisdiction Division, the Netherlands Government decided to undertake a comprehensive review of the statutory rules governing the Netherlands intelligence and security services. This resulted in the enactment of the Intelligence and Security Services Act 2002 which entered into force on 29 May 2002, replacing the 1987 Act. The 2002 Act provides for two intelligence and security agencies, the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”) and the Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst – “the MIVD”). The AIVD’s tasks are set out in Article 6 § 2, and those of the MIVD in Article 7 § 2 of the 2002 Act. The Act also contains detailed provisions on the categories of persons about whom information may be collected, the circumstances in which information may be collected, the means that may be used for obtaining information and the manner in which information may be recorded. The 2002 Act further provides for an independent Supervisory Board (Commissie van Toezicht), entrusted with the task of monitoring the lawfulness of the activities of the intelligence and security agencies. Pursuant to Article 73 of the 2002 Act, the Ministers concerned, the heads of the agencies, the official entrusted with the task of coordinating the policies and activities of the AIVD and the MIVD, and all other officials involved in activities under the 2002 Act, are obliged to provide the Supervisory Board with any information and cooperation which the Board considers necessary to the performance of its tasks. The 2002 Act also provides for the possibility for individuals to request access to information held on them or their deceased spouse, partner, child or parent. Article 57 of the 2002 Act provides that the Regional Court of The Hague has jurisdiction to hear appeals against decisions refusing access to such information.
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train
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001-96007
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ENG
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TUR
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GRANDCHAMBER
| 2,009
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CASE OF KART v. TURKEY
| 1
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No violation of Art. 6-1
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Alvina Gyulumyan;András Sajó;András Baka;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vladimiro Zagrebelsky
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8. The applicant was born in 1954 and lives in Ankara. 9. In the parliamentary elections of 3 November 2002, as a member of the People’s Republican Party (CHP), he was elected member of parliament (MP) for the Konya constituency to the Grand National Assembly of Turkey (“the National Assembly”). 10. Prior to his election he practised as a lawyer in Konya and, in the course of his professional activities, two sets of criminal proceedings were brought against him, one for insulting a lawyer and the other for insulting a public official. 11. Once elected as an MP he enjoyed parliamentary immunity. 12. On 23 December 2002 the Karapınar public prosecutor applied to the General Directorate of the Ministry of Justice to have the applicant’s parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer. 13. On 17 January 2003 the General Directorate of the Ministry of Justice transmitted the request to the Prime Minister’s Office. 14. On an unspecified date examination of the matter of the lifting of the applicant’s parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to the National Assembly’s joint committee (“the joint committee”) under Rules 131 et seq. of the Rules of Procedure of the National Assembly. The joint committee decided to stay the proceedings until the dissolution of the 22nd Parliament. 15. The applicant challenged that decision. His file was then sent before the plenary Assembly of the National Assembly (“the plenary Assembly”). 16. On 11 April 2003 the Konya Assize Court (“the Assize Court”) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official, by virtue of Article 83 of the Constitution and Article 253 § 4 of the Code of Criminal Procedure. 17. On 4 December 2003 the Assize Court transmitted the case file to the Ministry of Justice with a view to having the applicant’s parliamentary immunity lifted. 18. On 23 December 2003 the Department of Criminal Affairs of the Ministry of Justice referred the matter to the Prime Minister. 19. The Prime Minister’s Office transmitted the case file to the joint committee. 20. On 28 May 2004, after noting that the applicant had requested the lifting of his immunity, the joint committee decided, in view of the nature of the charges, to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office. It transmitted its decision to the plenary Assembly. 21. When the plenary Assembly met on 8 December 2004 the joint committee’s report was read and appended to the minutes of the meeting. 22. On 15 December 2004 the applicant challenged the joint committee’s decision. In his pleadings he made the point that parliamentary immunity had not been introduced to render MPs unaccountable or immune from punishment, but to allow them to discharge their duties in all freedom and independence and without fear. Unlike non-liability, he argued, inviolability was by nature a relative and temporary privilege. However, the scope of the inviolability, the procedure for lifting it and the shortcomings in its implementation had undermined due respect for the National Assembly. The applicant added that it was unacceptable in a society governed by the rule of law that an arrangement originally intended to help MPs to discharge their duties should be transformed into a personal privilege. 23. On 7 February 2005 the Secretariat of the Speaker’s Office informed the applicant that the two files concerning the lifting of his immunity had been placed on the agenda of the plenary Assembly. 24. At the meeting of the plenary Assembly on 16 February 2005 the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed. 25. The applicant was re-elected as a CHP party MP for the Konya constituency in the parliamentary elections of 22 July 2007. 26. On 8 January 2008 the Speaker of the National Assembly sent him a letter informing him of progress with the procedures for lifting his parliamentary immunity. The relevant passages read as follows: “... during the 22nd Parliament [2002-07] 299 files concerning immunity were forwarded to the joint committee. In 252 cases the committee decided to stay the proceedings until the next dissolution. In 226 cases that decision was challenged. The files corresponding to those cases were placed on the plenary Assembly’s agenda for examination. However, the plenary Assembly did not examine them. During the 22nd Parliament two files concerned your immunity. The first, file no. 3/176, concerned the proceedings brought against you by the Konya-Ereğli public prosecutor for insulting a lawyer; the second, file no. 3/453, concerned the proceedings before the Konya Assize Court for insulting a public official. In both cases the joint committee decided to stay the proceedings until the end of your term of office. Following your appeal, the files were placed on the plenary Assembly’s agenda but have not been examined. In this 23rd Parliament [which started in 2007] 77 files concerning the lifting of immunity remain pending before the joint committee. Two of those files are in your name; they were given the numbers 3/107 and 3/129 following your re-election on 22 July 2007. Since the beginning of this Parliament all the files, including yours, have been sent before three preparatory committees set up by the joint committee. These committees started work on 27 December 2007 ... They are to announce their decisions within a month of that date.” 27. On 23 and 24 January 2008 the applicant filed two defence memorials against the suspension of the two sets of criminal proceedings against him. In them he repeated his wish to be allowed to exercise his right to a fair trial. 28. The reports of the joint committee recommending a stay of the criminal proceedings against the applicant until the end of his term as an MP were placed on the National Assembly’s agenda of 15 January 2009, together with the applicant’s objections to those findings. 29. The matter is still pending before the Assembly. 30. Article 83 of the Turkish Constitution, on the subject of parliamentary immunity, reads as follows: “Members of the Turkish Grand National Assembly shall not be liable for their votes and statements in the course of the Assembly’s work, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly. A member who is alleged to have committed an offence before or after election shall not be arrested, questioned, detained or tried unless the Assembly decides otherwise. This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority shall notify the Turkish Grand National Assembly immediately and directly. The execution of a criminal sentence imposed on a member of the Turkish Grand National Assembly either before or after his election shall be suspended until he ceases to be a member; the statute of limitations does not apply during the term of office. Investigation and prosecution of a re-elected deputy shall be subject to whether or not the Assembly lifts immunity in the case of the individual involved. Political party groups in the Turkish Grand National Assembly shall not hold discussions or take decisions regarding parliamentary immunity.” 31. Article 85 of the Constitution reads as follows: “If the parliamentary immunity of a deputy has been waived ..., the deputy in question or another deputy may, within seven days from the day of the decision of the Grand National Assembly of Turkey, appeal to the Constitutional Court for the decision to be annulled on the grounds that it is contrary to the Constitution, law or the rules or procedure of the Turkish Grand National Assembly. The Constitutional Court shall decide on the appeal within fifteen days.” 32. The Rules of Procedure of the Grand National Assembly of Turkey provide, inter alia: “Immunity Requests to lift immunity and the committee competent to examine them Rule 131: requests for the lifting of a member’s parliamentary immunity shall be transmitted by the Speaker’s Office to the joint committee, composed of members of the constitutional and judicial committees. ... The preparatory committee and its hearings Rule 132: the Chair of the joint committee shall appoint a preparatory committee composed of five sworn members to examine files concerning immunity. ... This committee shall examine all the documents and, if necessary, hear the member concerned; it shall not hear witnesses. The preparatory committee shall submit its report within one month of being convened. The joint committee shall finalise the report within one month. The report of the joint committee Rule 133: the joint committee shall examine the report and its appendices [submitted by] the preparatory committee. The joint committee shall decide whether to lift the member’s immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office. If the joint committee’s report recommends lifting immunity or if an objection is received within the conditions set out in paragraph 3, the report shall be examined by the plenary Assembly. If the proceedings have been stayed and that decision is not overturned by the plenary Assembly, no action may be taken against the member concerned until the end of his or her term of parliamentary office, even if the legislature has been renewed. The rights of the defence Rule 134: When a request to lift a member’s immunity has been received, the member concerned may, if he wishes, defend himself or be defended by another member before the preparatory committee, the joint committee and the plenary Assembly. The matter shall be decided on the evidence if a member who has asked to speak in his defence fails to answer the invitation to do so. In any event, the defence shall have a say. The mere fact that a member requests permission to waive his or her immunity shall not suffice.” 33. On 21 March 1994 the Turkish Constitutional Court adopted a series of judgments in cases concerning the lifting of several MPs’ parliamentary immunity. Those cases gave the Constitutional Court an opportunity to clarify the scope of parliamentary immunity. The relevant passages of the judgments read as follows: “(a) Meaning of non-liability and parliamentary immunity All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly. Quite evidently, the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law. Parliamentary immunity is not an aim; it is a means of enabling MPs to fulfil the nation’s wishes in full by perfectly reflecting the wishes of the people within the Assembly. Even though Article 83 of the Constitution is entitled ‘Parliamentary Immunity’, it actually establishes two institutions: parliamentary non-liability and parliamentary immunity. The first paragraph of the Article explains that the members of the Grand National Assembly of Turkey are not liable for their votes and statements in the course of the Assembly’s work, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Speaker, for repeating or revealing these outside the Assembly. The second paragraph of the Article stipulates that a member who is alleged to have committed an offence before or after election may not be arrested, questioned, detained or tried unless the Assembly decides otherwise. The only cases where this provision does not apply are those where a member is caught in the act of committing a crime punishable by a heavy penalty, provided that proceedings were initiated before the election, and cases subject to Article 14 of the Constitution. Article 83 of the Constitution does not specify on what grounds immunity may be lifted, and the Rules of Procedure of the Assembly do not cover the subject. That does not mean that the legislature has a free hand in the matter. The rationale for immunity and the way in which it has developed over the years show that Parliament’s powers concerning the lifting of immunity are not absolute but limited. Furthermore, the fact that immunity has a place in the Constitution means that the rules and aims of immunity must be defined in the light of the rules and aims of the Constitution. There is no doubt that the intention, when immunity was provided for in Article 83, was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered, and rightly so, from all worry and pressure. In other words, the aim of parliamentary immunity is to ensure that MPs are not prevented, even temporarily, from fulfilling their functions by arbitrary criminal proceedings. So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in the Constitution. ... Provision has been made for decisions of the Grand National Assembly of Turkey concerning the lifting of immunity to be scrutinised by the Constitutional Court with regard to their conformity not only with the Constitution but also with the Rules of Procedure ... When such decisions of the Grand National Assembly of Turkey are scrutinised, attention must be paid to the seriousness of the accusation and whether or not it is politically motivated. In addition, the decision must be in conformity with the rationale behind immunity as a constitutional institution. In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen. He enjoys all the guarantees set out in the Constitution and laws of the Republic of Turkey. All the principles that apply to citizens likewise apply to him. He may, for example, be taken into police custody, questioned, detained and, to all intents and purposes, subjected like any other citizen to all the applicable procedural rules. ...” 34. Under Article 107 of the old Criminal Code enshrined in Law no. 765 of 1 March 1926: “If the opening of proceedings is subject to authorisation, adoption of a decision or the resolution of a problem pending before another body ..., the running of time for the purposes of limitation shall be suspended until such authorisation is obtained, such decision adopted or such problem resolved.” 35. Law no. 5237 on the new Criminal Code was passed on 26 September 2004 and published in the Official Gazette on 12 October 2004. Article 67 of the Code provides: “(1) When the investigation or prosecution depend on authorisation, adoption of a decision or the necessary resolution of a problem pending before another body, the running of time for the purposes of limitation shall be suspended until such authorisation [is granted], such decision adopted or such problem resolved ... (2) Where an offence has been committed, the running of time shall be suspended from the time when: (a) the prosecutor questions or takes a statement from the suspect or the accused; (b) a decision is taken to remand the suspect or the accused in custody; (c) an indictment for the offence is issued; (d) a conviction is pronounced, even if it concerns only some of the accused parties. (3) A suspension of limitation causes time to begin to run again. Where there is more than one ground for suspension of limitation, time begins to run again from the date of the last event triggering suspension ...” 36. Under Article 253 § 4 of the old Code of Criminal Procedure enshrined in Law no. 1412 of 4 April 1929, when the criminal proceedings, and therefore the trial, are subject to a condition precedent and it is established that the condition has not been met, a decision to stay the trial is adopted until the condition has been met. On 4 April 2004 a new Code of Criminal Procedure was introduced. 37. On 29 January 2008 the Secretariat of the National Assembly took stock of the number of cases where parliamentary immunity had been lifted since 1991. It found that the National Assembly had lifted the parliamentary immunity of seventeen MPs in the course of the 19th, 20th and 21st Parliaments. According to the lists and information provided by the parties, during the 22nd Parliament 299 files concerning the lifting of immunity were pending before parliamentary bodies, but no decisions to lift immunity were taken. Since the start of the 23rd Parliament, 315 files concerning the lifting of immunity have apparently been pending before the National Assembly. 38. Article 40 of the Statute of the Council of Europe (5 May 1949) provides: “a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative [Parliamentary] Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions.” 39. The General Agreement on Privileges and Immunities of the Council of Europe (2 September 1949) includes the following provisions: “Representatives to the Consultative [Parliamentary] Assembly and their substitutes shall be immune from all official questioning and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.” “During the sessions of the Consultative [Parliamentary] Assembly, the representatives to the Assembly and their substitutes, whether they be members of parliament or not, shall enjoy: a. on their national territory, the immunities accorded in those countries to members of parliament; b. on the territory of all other member States, exemption from arrest and prosecution. This immunity also applies when they are travelling to and from the place of meeting of the Consultative [Parliamentary] Assembly. It does not, however, apply when representatives and their substitutes are found committing, attempting to commit, or just having committed an offence, nor in cases where the Assembly has waived the immunity.” 40. The Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (6 November 1952) provides: “The provisions of Article 15 of the Agreement shall apply to representatives to the [Parliamentary] Assembly, and their substitutes, at any time when they are attending or travelling to and from meetings of committees and sub-committees of the Consultative [Parliamentary] Assembly, whether or not the Assembly is itself in session at such time.” “Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.” 41. In its Resolution 1490 (2006) on the Interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe, the Parliamentary Assembly of the Council of Europe stated: “1. The Parliamentary Assembly refers to its Resolution 1325 (2003) and Recommendation 1602 (2003) on immunities of members of the Parliamentary Assembly, which underlined that immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office. ... 8. It resolves to interpret Article 15.a as follows: regardless of the national regime of immunity, Assembly representatives or substitutes shall be protected against prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country. 9. The Assembly also considers that it is appropriate for the relevant Assembly organs, when examining requests for the waiver of immunity and for the defence of immunity of its members, to question whether the competent national authorities have respected the European Convention on Human Rights as interpreted by the European Court of Human Rights and other relevant Council of Europe legal instruments and texts which the respective countries have ratified or accepted. The Assembly should express its concern when Council of Europe norms have been obviously disregarded in respect of one of its members. ... 11. Consequently the Assembly decides to: 11.1. add the following paragraph after paragraph 6 in Rule 64 of the Assembly’s Rules of Procedure: ‘a. When dealing with requests for the waiver of the Council of Europe immunity, or with requests to defend that immunity of an Assembly member, the competent Assembly bodies shall interpret Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe as follows. Assembly representatives or substitutes are immune from prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country. b. The terms ‘in the exercise of their functions’ include all official duties discharged by Assembly representatives and substitutes in the member States on the basis of a decision by a competent Assembly body and with the consent of the appropriate national authorities. c. In case of doubt, the Bureau of the Assembly shall decide if Assembly members’ activities took place in the exercise of their functions.’” 42. Article 10 of the Protocol on Privileges and Immunities of the European Communities (8 April 1965) provides: “During the sessions of the Assembly, its members shall enjoy: (a) in the territory of their own State, the immunities accorded to members of their Parliament; (b) in the territory of any other member State, immunity from any measure of detention and from legal proceedings. Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the Assembly. Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the Assembly from exercising its right to waive the immunity of one of its members.” 43. Rule 6 of the Rules of Procedure of the European Parliament, concerning the waiver of parliamentary immunity, states: “1. In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its members in performance of their duties. 2. Any request addressed to the President by a competent authority of a member State that the immunity of a member be waived shall be announced in Parliament and referred to the committee responsible. 3. Any request addressed to the President by a member or a former member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible. The member or former member may be represented by another member. The request may not be made by another member without the agreement of the member concerned. 4. As a matter of urgency, in circumstances where a member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities, the President, after having consulted the chairman and rapporteur of the committee responsible, may take an initiative to assert the privileges and immunities of the member concerned. The President shall communicate his initiative to the committee and inform Parliament.” 44. Parliamentary immunity is not a homogeneous notion. Most European states recognise two categories of immunity for parliamentarians: firstly, the “non-liability” of parliamentarians in respect of judicial proceedings for opinions expressed and votes cast in the discharge of their parliamentary duties; secondly, their “inviolability” or “immunity in the strict sense”, shielding them from all arrest, detention or prosecution for offences unrelated to their parliamentary duties without the consent of the Chamber to which they belong. This comparative law study focuses on the latter aspect of parliamentary immunity (see the Venice Commission’s Report on the regime of parliamentary immunity, 1996). 45. The precise scope of the inviolability varies considerably from one country to another. The very nature of this aspect of immunity results in a wide array of legal approaches to its implementation. In some States there is no such institution (the Netherlands, San Marino). In others its scope is very limited. For example, in the United Kingdom inviolability covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual. In Ireland and Norway parliamentary inviolability serves to prevent MPs from being arrested during sessions or on their way to or from Parliament. It therefore affords them limited protection. 46. That said, most of the States Parties to the Convention grant their MPs immunity from criminal prosecution during their term as MPs that goes beyond the exercise of parliamentary functions (Albania, Austria and Germany – if the act does not clearly fall outside the ambit of their political activities – and Cyprus, Greece, Hungary, Lithuania, Poland, Russia, Serbia, Spain and Switzerland) and/or protection against imprisonment or deprivation of liberty (arrest or detention in all those countries which provide for immunity from prosecution, as well as Belgium, France, Georgia, Portugal and Romania). In certain cases MPs are protected from body searches, house searches and interception of their communications (Georgia, Hungary, Italy, Romania and Switzerland). Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs, except in Cyprus, where such decisions lie with the courts. 47. In several States the scope of inviolability has been restricted, as witnessed by some recent constitutional reforms. In France, for example, since the constitutional reform of 1995, the Chamber’s authorisation is no longer necessary for criminal proceedings to be brought, but only for detention, arrest and other judicial supervision measures. A similar change came about in Italy when Constitutional Law no. 3 of 29 October 1993 did away with the need for the prior authorisation of Parliament in order for criminal proceedings to be brought against an MP. In Romania, since the constitutional reform of 2003, senators may be placed under judicial investigation or criminal proceedings brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators. 48. In Germany’s Bundestag the practice is generally for a new parliament to lift immunity from prosecution for all offences (with the exception of defamation of a political character) at the start of the parliamentary term. The aim of this is to protect the reputation of each MP, by ensuring that they attract less media attention if proceedings are brought against them. 49. As to the scope of parliamentary inviolability ratione materiae, that is to say the acts it covers, there is a general tendency in the States Parties to the Convention for cases of flagrante delicto to be excluded. In such cases the prior authorisation of the Chamber concerned is not required, but even this does not necessarily prevent Parliament from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures (Georgia and Romania, for example). In some countries the law excludes certain types of act from inviolability, or the criterion may be the severity of the penalty incurred (the Portuguese Constitution excludes, in certain circumstances, deliberate offences punishable with imprisonment for over three years). 50. The duration of parliamentary inviolability also varies from one country to another. Some countries extend parliamentary immunity to criminal proceedings brought prior to the MP’s election (Belgium, Germany, Hungary, Italy, Portugal and Spain). In other countries, even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP’s election to be continued, Parliament may, of its own motion or at the request of the interested party, request the suspension of the proceedings or the waiving of restrictive measures during the MP’s term of office (France, Poland and Switzerland). 51. Parliamentary immunity may be lifted in most countries. The procedure for lifting immunity is generally the same. It is usually provided for in the Chamber’s Rules of Procedure. It is set in motion by a proposal or a request for authorisation by the competent public authority (in most cases the Principal State Prosecutor), the injured party or the parliamentarian concerned. The request is transmitted to the Speaker of the Parliament, either directly or in certain cases through another authority (the Minister of Justice, the Prime Minister), then examined by a special or ad hoc parliamentary committee, which gives an opinion after hearing the MP concerned. It is then for the full Chamber to decide, with or without a debate, in private or in public, whether or not to lift immunity. The possibility of appealing against a decision of the Chamber to lift immunity exists in very few countries (Austria and Germany). 52. The possibility for MPs to waive their own parliamentary immunity is not widespread (Poland and Switzerland) and is sometimes limited to minor offences (summary offences in Hungary) or to specific offences (defamation in Ireland and the United Kingdom). Under Poland’s Constitution MPs have the right to consent to criminal proceedings. In Switzerland the Federal Assembly Act gives MPs the right to consent in writing to be prosecuted or arrested. 53. In most of the Contracting States no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to Parliament, to guarantee its smooth operation. In France provisions governing immunity are traditionally a matter of public policy and MPs cannot renounce it. Any act that violates parliamentary immunity is considered null and void. The question of immunity must be raised by a judge. A similar approach has been adopted in the European Parliament, where renunciation of immunity has no legal effect. 54. This comparative presentation does not reveal any uniform pattern of existing parliamentary practice. It is worth noting, however, that a majority of European countries have recognised parliamentary immunity and incorporated it in their constitutional systems as an essential factor in the smooth functioning of the legislature. 55. There are nevertheless marked differences in the nature and scope of the protection inviolability offers MPs. They reflect the different political and historical experiences of the States, and often illustrate the needs that underlie inviolability. It would appear that the scope of this privilege, which is considered as an inextricable part of the separation of powers, the autonomy of Parliament or the protection of the parliamentary opposition, is defined in each State in keeping with the degree of autonomy necessary for Parliament to be able to fulfil its duties.
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train
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001-72549
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ENG
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BGR
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CHAMBER
| 2,006
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CASE OF OGNYANOVA AND CHOBAN v. BULGARIA
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Violations of Art. 2;Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 13;No violation of Art. 14;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
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Christos Rozakis
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8. At approximately 2 a.m. on 6 June 1993 Mr Stefanov died after having fallen the previous day from the window of room 36 on the third floor of the police station in the town of Kazanluk. Numerous injuries were found on his body. The ensuing investigation concluded that he had voluntarily jumped out of the window of the room where he had been brought for questioning, and that all his injuries had been the result of his fall. The applicants contested these conclusions. 9. At an unknown time on 4 June 1993 Mr Stefanov, then aged twentythree, was arrested by the police in the town of Muglizh. Another person, Mr D.O., also of Roma ethnic origin, was likewise taken into custody. According to a subsequent statement of Mr D.O., he had turned himself in, whereas according to a statement of lieutenant I.C., a police officer involved in these events (see paragraph 10 below), he had been arrested. Apparently Mr Stefanov and Mr D.O. were suspected of numerous thefts and burglaries committed in complicity. The two were brought to the Kazanluk police station either later that evening or the next morning. The applicants submitted that Mr Stefanov had been in good health at the time of his arrest. The Government did not contest this assertion. 10. The events of the next morning, as described hereafter, are only known from the statements of lieutenant I.C. and chief sergeant H.B., the two police officers who participated in the events, of Mr D.O., and partly from the statement of chief sergeant B.B., an officer guarding the cell block of the police station. Apparently the only eyewitnesses to what happened in room 36, from whose window Mr Stefanov fell to the ground, were lieutenant I.C., chief sergeant H.B. and Mr D.O. 11. Lieutenant I.C. arrived at the Kazanluk police station at approximately 10 a.m. on 5 June 1993 and first proceeded to question Mr D.O. about the thefts and burglaries allegedly committed by him and Mr Stefanov. 12. The questioning took place in lieutenant I.C.’s office – room 36 on the third floor of the police station – an eastfacing room measuring 5 by 2.8 m.. It had two twowing windows, overlooking the backyard, with sills 96 cm above the floor. It seems that the south window was opened. In the middle of the room there were two desks, adjacent to each other. 13. In the back yard, beneath the room’s windows, 70 cm south of the one which was open, there was a shed for motorcycles, with a 1.95 meter high ceiling, covered with an iron sheet roof. Beside the shed there was an inspection tunnel for automobiles, leading to an underground garage. The inspection tunnel had a concrete edge. The room’s windows stood at 9.6 m above the ground, the distance between the windows and the concrete edge was 7.9 m, and that between the windows and the iron sheet roof – 5.9 m. 14. After questioning Mr D.O., lieutenant I.C. sent him back to the cell block on the first floor, and brought Mr Stefanov up for questioning. During the questioning Mr Stefanov was seated in a chair behind the south desk in room 36. Lieutenant I.C. was sitting opposite him, behind the north desk. Throughout the questioning Mr Stefanov was handcuffed. It is not clear whether his hands were secured behind his back or in front of him. 15. According to the statements made later by lieutenant I.C., sergeant H.B. and Mr D.O., during the questioning the lieutenant established discrepancies between the versions of Mr Stefanov and Mr D.O about their participation in the alleged thefts. At that point, at approximately 11 a.m., the lieutenant called sergeant H.B. and ordered him to bring Mr D.O. up from the cell block in order to be able to confront the two. Sergeant H.B. took Mr D.O. and brought him in front of room 36. Sergeant H.B. and Mr D.O. stood a little south of the room’s door, so that Mr D.O. and Mr Stefanov could not establish eye contact. Lieutenant I.C. started questioning Mr Stefanov and Mr D.O., to compare their answers. Apparently their versions differed and an argument erupted between the two, as they were accusing each other of being the mastermind of the alleged thefts. 16. Then Mr D.O. indicated with his head to lieutenant I.C. that he wanted to tell him something without Mr Stefanov hearing it. The lieutenant stood up from his chair, approached the halfopen door and stood at the doorsill. At that moment Mr Stefanov, still handcuffed, bolted from his chair, made towards the open window and climbed on the window sill by stepping on a chair placed under the window. Chief sergeant H.B. shouted: “This one is going to run”. Lieutenant I.C. turned around and saw Mr Stefanov in the window frame, one leg out in the air and the other leg inside the room. The lieutenant shouted: “Don’t jump!”, but Mr Stefanov threw his other leg out of the window and jumped. The lieutenant rushed towards the window. 17. There are inconsistencies in the lieutenant’s statements as to whether he saw Mr Stefanov falling, or only saw him after he had already hit the ground. In his report dated 11 June 1993 the lieutenant stated that he had only seen Mr Stefanov’s body supine on the ground. However, when questioned about the incident on 20 June 1994, the lieutenant maintained that when he had rushed to the window, he had been able to see Mr Stefanov’s fall, and had seen his body hit the iron sheet roof of the shed beneath the window before rolling off and onto the ground. When questioned for a second time on 21 July 1997, the lieutenant stated that he could not recall exactly the phases of Mr Stefanov’s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memories had faded because the events had taken place a long time before and had unfolded very quickly (see paragraphs 34, 36 and 56 below). 18. There are also inconsistencies in Mr D.O.’s statements as to whether he saw Mr Stefanov’s fall at all. When first questioned about the incident on 8 June 1993, he stated that he had not directly seen Mr Stefanov jump. During his second questioning on 13 December 1993 Mr D.O. maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov’s fall, but had only seen him supine on the ground. 19. Chief sergeant H.B. rushed down the stairs to the back yard, where he found Mr Stefanov lying unconscious, half on his back, half on his right side, on an iron grill in front of the garage. His handcuffs had broken, he was bleeding and breathing heavily. Chief sergeant H.B. poured water on him to try to revive him. An ambulance was called shortly afterwards and Mr Stefanov was taken to the regional hospital in Kazanluk, where he died at approximately 2 a.m. the following morning (see paragraph 26 below). 20. Having been notified about the incident at 12.10 p.m., investigator G.S. of the District Investigation Service in Kazanluk inspected the scene of the incident. Starting at 1.15 p.m., he first inspected the back yard of the police station, where Mr Stefanov had fallen to the ground, and then room 36. The minutes of the inspection state that the site of the incident had “not been preserved – the injured person having been removed”. The minutes describe the ground beneath the windows of room 36 as covered partly with an iron grill, the remainder being a concrete surface. Two bloodstains are noted: one on the iron grill, and one under it. The bloodstain under the grill measured 5 to 6 cm. During the inspection of room 36 a chair was found just beside the window and a piece of plaster 5 cm long was found under the window frame. 21. The same day, while Mr Stefanov was still alive but in a coma, colonel P., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, ordered that he be examined by Dr E.B., medical doctor at the forensic medicine ward of the Stara Zagora regional hospital. 22. At 7 p.m. on 5 June 1993 Dr E.B. examined Mr Stefanov in the presence of Dr K., a neurosurgeon from the Kazanluk regional hospital. He found that Mr Stefanov was in a coma and could not communicate. He recorded that the “onduty police officer” had told him that Mr Stefanov had jumped from the window of a room on the third floor of the police station, that he had fallen on an iron sheet roof, and then on the ground in front of the underground garage of the station, on an iron grill. 23. He noted the following injuries on Mr Stefanov’s body: “The lids of the right eye are suffused and are bluish-violet in colour. An abrasion with underlying surface, measuring 6 by 6 cm, was found in the area of the right cheekbone. An arch-shaped wound with uneven and suffused edges 2 cm long, was found on the outer edge of the right eye. Two slit-shaped parallel violet suffusions, 1 cm wide and 8 cm long, are visible on the back of the right shoulder. The distance between them is 3.5 cm. At the middle of the thorax one can observe a slanted elongated violet suffusion, measuring 4 by 1 cm. A similar suffusion, measuring 3 to 2 cm, was found on the left buttock. The right upper limb is immobilised with a plaster dressing. Three oval abrasions with underlying surface, the biggest measuring 1 by 1 cm, were found on the lateral side of the right knee. The skin on the lateral side of the right sole is suffused and bluish-violet in colour. A spotted suffusion, measuring 8 by 3 cm, was found on the inner side of the left sole. An underlying abrasion, measuring 6 to 4 cm, is visible on the lateral side of the right calf. A superficial slit-shaped wound with uneven edges and length 3 cm was found on the left parietal-temporal area.” 24. Dr E.B. concluded that the injuries described could have been sustained in a twostage fall. 25. The laboratory tests detected no traces of alcohol in Mr Stefanov’s blood or urine. 26. Mr Stefanov died at approximately 2 a.m. the following morning. 27. On the following day, 6 June 1993, Dr E.B. performed an autopsy on Mr Stefanov’s dead body. The doctor described his findings in detail in his report. He noted the following: “EXTERNAL INSPECTION[:] ... The eyelids are closed. The lids of the right eye are suffused and bluish-violet in colour. An arch-shaped wound with uneven and suffused edges, 2 cm long, is visible in the outer eye angle of the right eye, on the orbital edge. An abraded spot at the level of the skin, covered with reddish scab, 6 by 6 cm, is visible in the area of the right cheekbone. ... A slit-shaped wound with uneven and suffused edges, 3 cm long, is visible in the parietal-occipital-temporal area. Small tissue bridges are visible at the bottom of the wound. ... An oblique bluish suffusion, measuring 4 by 2 cm, is visible on the frontal part [of the thorax], in the middle part, in the projection of the sternum. Two strip-shaped bluish-violet blood suffusions, parallel to one another, measuring 8 by 2 cm, at a distance of 3.5 cm between them, are visible on the back surface of the right shoulder. ... A bluish-violet suffusion, measuring 4 by 3 cm, was found on the left buttock. ... The right armpit bone is broken in the middle third with suffusions in the musculature. A wound with an irregular shape and even edges, measuring 3 by 2 cm, is visible in this area, on the lateral surface. The bone fragments are at its bottom. Two strip-shaped grazed areas covered with whitish scab at the level of the skin, each measuring 40 by 3 mm, and a distance between them of 5 mm, were found in the area of the right wrist. Three abraded areas covered with reddish scab at the level of the skin, the biggest one measuring 1 cm in diameter, were found on the lateral side of the right knee. A similar grazed area, measuring 4 by 6 cm, was found on the lateral surface of the right calf. The skin on the lateral part of the right sole is suffused and bluish. A similar suffusion, measuring 8 by 3 cm, was found on the internal surface of the left sole. Deep skin incisions were made on the back of the corpse, and thereupon suffusions of the soft tissues and the musculature of the right part of the back, in the area of the right shoulder-blade, measuring 18 by 8 cm, vertically oriented, were found. ... A suffusion of the tissues was found in the musculature and the subcutaneous layer of the left buttock, in the projection of the above-described suffusion. INTERNAL INSPECTION[:] Head. The soft cranial membranes have suffusions on the right frontal-temporal area, on the left parietal-occipital-temporal area, below the above described lacerated-contusion wound. ... A linear fracture was found at the base of the skull, beginning from the right frontal-temporal area, passing on the roof of the right orbit, and ending in the area of the sella turcica. ... The soft meninges are suffused in the temporal parts. ... Rounded violet suffusions, with diameter of not more than 2 mm, were found at the base of the brain, in the area of the right frontal parts. ... The first, seventh, and eighth ribs on the right side are broken on the posterior sub-arm line with a suffusion in the intercostal musculature. The fractures are wide open inward.” 28. In the concluding part of the report Dr E.B. summarised the injuries on Mr Stefanov’s body as follows: “Combined cranial-cerebral and thoracic trauma following a fall from a substantial height. Fracture of the base of the skull. Cerebral contusion, cerebral oedema, with wedging of the cerebellar tonsils. Suffusion of the meninges. Fracture of ribs on the right side. Lacerated-contusion wounds on the head and the face. Suffusions of the cranial membranes, the face, the thorax, and the limbs. Abrasions on the face and the limbs. Open fracture of the right armpit bone. Suffusion of the buttocks. Lack of alcohol in the blood and the urine.” 29. Dr E.B. concluded that the death had been caused by a cranialcerebral trauma, consisting of a fracture of the skull, a contusion and a brain oedema. 30. Addressing the question of the manner in which the injuries had been caused, Dr E.B. stated: “The described traumatic injuries were caused by the impact of the body against solid blunt objects and could be sustained in a two-stage fall from a substantial height. The inspection and the autopsy revealed head and body traumatic injuries: head – on the right frontal-temporal area [and] on the left parietal-occipital-temporal area; body – front and back, more pronounced on the right side; limbs – right upper limb, lateral surface of the right leg and internal surface of the left sole. The fall on the roof of the shed produced the injuries on the right side of the forehead and the face and the front of the body. The second stage of the fall – from the roof of the shed to the ground in front of the underground garage – resulted in the injuries on the back of the body, the left parietal-occipital-temporal area of the head and lower limbs. The two chafings of the right wrist suggest sustained contact with handcuffs. The right armpit bone was broken during the first stage of the fall if the hands were handcuffed in front, and during the second stage if the hands were handcuffed on the back.” 31. Dr E.B. finished his autopsy report with the following findings: “All traumatic injuries were sustained while [Mr Stefanov was alive], is indicated by from the suffusions in the areas of the broken bones. These injuries were sustained at the same time and it is possible that they occurred at the time stated in the preliminary data. The inspection of the body and the autopsy did not reveal traumatic injuries which cannot be explained by a fall from a substantial height. At the time of his death [Mr] Stefanov was not under the influence of alcohol, but the expertise cannot confirm the same for the moment of the fall, because the alcohol test sample was taken more than twelve hours after the incident.” 32. On 8 June 1993 Mr D.O. was questioned about the incident. He stated, inter alia, that he had not directly seen Mr Stefanov jump. 33. An investigation was opened on 17 June 1993 by the Plovdiv Military Regional Prosecutor’s Office. 34. The military investigator in charge of the case, Mr S.S., collected the written reports of lieutenant I.C., chief sergeant H.B. and sergeant B.B., but did not question the officers. He started working on the case on 13 December 1993, when he questioned Mr D.O. The latter stated, inter alia, that he had not been mistreated and that Mr Stefanov body did not indicate any bodily assault at the time of his questioning in the morning of 5 June 1993. He also maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov’s fall, but had only seen him lying on the ground. 35. On 8 February 1994 the Plovdiv Military Regional Prosecutor’s Office transferred the case to the competent district prosecutor’s office, in view of the amendments to the Code of Criminal Procedure (“the CCP”) of December 1993 whereby offences allegedly committed by police officers came under the jurisdiction of the general courts (see paragraph 71 below). However, on 5 April 1994 the case was sent back to the Plovdiv Military Regional Prosecutor’s Office pursuant to special instructions by the Chief Prosecutor’s Office of 16 February 1994. On 20 April 1994 the Plovdiv Military Regional Prosecutor’s Office remitted the case file to captain I.N., a military investigator in Stara Zagora, for further action. 36. Lieutenant I.C. was questioned on 20 June 1994 by the military investigator, captain I.N. He stated, inter alia, that when he had rushed to the window, he had been able to see Mr Stefanov’s fall and had seen his body hit the iron sheet roof of the shed situated beneath the window before hitting the ground (see paragraph 17 above). 37. On 30 June 1994 investigator I.N. recommended that the investigation be discontinued, citing the lack of evidence for a criminal offence. He found that the medical expert report had established that all of Mr Stefanov’s injuries had been sustained during his twostage fall from the window. This finding coincided with lieutenant I.C.’s statement that he had seen Mr Stefanov’s body first hit the roof of the shed beneath the window and then fall on the ground in front of the underground garage. The investigator concluded that Mr Stefanov had jumped out of the window of his own will, and that this had not been provoked by the conduct of lieutenant I.C. or another police officer. 38. On 29 July 1994 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, discontinued the proceedings and sent the case file to the Kazanluk District Prosecutor’s Office for further action. He reasoned that Mr Stefanov had suddenly jumped from the window of room 36 during questioning, in the presence of lieutenant I.C. and Mr D.O. He had fallen on the ground and had immediately been taken to a hospital, where he had died despite the efforts to revive him. As could been seen from the medical expert report, the Mr Stefanov’s death had been caused by a combined cranial-cerebral and thoracic trauma, a fracture of the base of the skull, a cerebral contusion, a suffusion of the meninges, lacerated-contusion wounds on the head and the face, and suffusions of the limbs. There was no indication that lieutenant I.C. had contributed in any way to Mr Stefanov’s death. 39. On 4 August 1994 the Kazanluk District Prosecutor’s Office sent the case back to the Plovdiv Military Regional Prosecutor’s Office, stating that there was nothing for them to do since the proceedings were discontinued. 40. During the following year the case file was shuttled between various prosecutor’s offices. On 4 October 1994 the first applicant, who was apparently unaware of the latest developments, complained to the Chief Prosecutor’s Office about the delay in the investigation and stated that she had not been informed of the investigation findings. 41. In view of the amendments to the CCP of June 1995 whereby the military courts, investigators and prosecutors were restored jurisdiction over offences allegedly committed by police officers (see paragraph 71 below), on 3 August 1995 the Military Prosecutor’s Office in Sofia sent the case for review by the Plovdiv Military Regional Prosecutor’s Office with instructions to communicate its ruling to Mr Stefanov’s heirs. 42. In a decision of 27 December 1995 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, once again discontinued the investigation for lack of evidence of a criminal offence. He reasoned, without much detail, that Mr Stefanov had jumped from the open window. He had been immediately transported to a hospital, where he had died because of a cranialcerebral trauma. It had not been established that lieutenant I.C. or another police officer had abused his office, had brought about Mr Stefanov’s suicide, or had failed to discharge his or her duties. It appears that a copy of the decision was sent to Mr Stefanov’s father. 43. Apparently the applicants were not informed about these developments, although they had requested to be kept abreast of the progress of the investigation on several occasions. 44. A copy of the prosecutor’s decision was obtained by the applicants’ lawyer on 12 November 1996. On 9 December 1996 he filed an appeal against it with the Military Prosecutor’s Office in Sofia, arguing that the investigation was not comprehensive, that a number of investigative steps had not been undertaken and that various facts had not been clarified. 45. In a decision of 9 January 1997 prosecutor V.P. of the investigative department of the Military Prosecutor’s Office in Sofia found that the investigation had not been full and comprehensive. It had not been established at what time on 4 June 1993 Mr Stefanov had been arrested, who had ordered that he remain in detention after the end of the workday, or whether there had been an order for his police detention for a period of twentyfour hours. If such an order existed, it was not clear who had issued it and on what legal grounds. The legality of the police officers’ actions had to be assessed also from the point of view of Article 127 of the Criminal Code (“the CC”) (see paragraph 66 below). Another fact which had not been clarified were the circumstances of Mr Stefanov’s detention leading up to the incident on 5 June 1993. Also, it was unclear how many objects Mr Stefanov’s body had hit during the fall and what was the number of impacts. No inspection had been carried out of the roof of the motorcycle shed. It was apparent from the photographs that it was not deformed although the doctor’s report had stated that on his way down Mr Stefanov had first hit the roof and only then the iron grill on the ground. The doctor’s report had also stated that the body had sustained two blows during the fall and that all injuries could have been caused by two consecutive blows. Finally, not all persons who could have clarified the facts had been questioned, including chief sergeant H.B., chief sergeant B.B., and others who had been in the back yard and the garage of the police station and might have witnessed the fall. 46. Accordingly, the prosecutor quashed the decision to discontinue the investigation and ordered to: (i) gather all documents in the Kazanluk police station relating to Mr Stefanov’s arrest and detention on 4 June 1993; (ii) inspect the site of the incident with a view to establishing the exact material of which the metal sheet roof was made and whether there were any deformations on it; also, establish what the distance between the window and the ground was and whether the bloodstain found on the iron grill was situated directly beneath the window; (iii) perform a dummy test to determine the exact spot where Mr Stefanov’s body had hit the ground; (iv) question other possible witnesses; also, take new statements from Mr D.O. about the circumstances of his and Mr Stefanov’s detention and stay in the police station, the possible use of physical violence against them, as well as all other circumstances possibly relevant to the case; (v) prepare a three-expert forensic report to establish the cause of death and whether there were injuries on Mr Stefanov’s body which had not been caused by the fall form the window. 47. Following the remittal of the case, on 8 March 1997 an investigator inspected the iron sheet roof of the motorcycle penthouse situated beneath room 36, and performed a dummy test. 48. During the inspection it was found that the iron sheet roof had no marks of bending or deformation. 49. A humansize leather dummy was thrown twice out of the window of room 36. The first time the dummy was dropped perpendicularly and fell directly on the ground in front of the garage, without touching the iron sheet roof of the penthouse. The second time it was thrown at an angle south of the window and hit the iron sheet roof, then the concrete edge beneath the roof, and then fell on the ground. When the dummy hit the iron sheet roof during the second throwing, the roof gave. 50. On 25 March 1997 investigator S.S. questioned chief sergeant H.B. who stated, inter alia, that he had not seen Mr Stefanov’s fall in its entirety, and had no recollection of how many hits he had heard during the fall. 51. On 26 March 1997 investigator S.S. questioned chief sergeant B.B. 52. Following the dummy test, three medical experts were appointed to reexamine the conclusions about the circumstances in which Mr Stefanov’s injuries had been sustained. More specifically, they were requested to establish what was the cause of Mr Stefanov’s death and whether some of the injuries found on his body could have been the result of factors other than the fall from the window of room 36. Dr E.B., the medical doctor who had examined Mr Stefanov on 5 June 1993 and had performed an autopsy on his dead body, was one of the experts. The others were Dr H.E. and Dr T.T., medical doctors from the forensic medicine and ethics faculty of the university of Stara Zagora. 53. On 18 April 1997 the three experts delivered their report based solely on documents contained in the investigation case file. 54. The experts confirmed the previous findings about the cause of death, namely that it was the result of a cranial and brain trauma, consisting of a fracture of the base of the skull, contusion and oedema of the brain, with a wedging of the cerebellum and paralysis of the vital brain centres. Although insubstantial, the amount of blood that had entered the respiratory system, also contributed to the fatal outcome, the experts opined. 55. As to the cause of the injuries, the experts concluded that: “such injuries may be sustained in a fall that involves multiple blunt impacts. Such a fall [occurs] the body hits several hard surfaces at different heights, as indicated by the dummy test. Such information was gathered during the dummy test. When thrown at a right angle, the dummy hit the iron sheet roof situated under the window adjacent to the one from which [Mr] Stefanov fell. ...It is possible that [Mr] Stefanov ran tangentially against the edge of the iron sheet roof and that his body rolled off leaving no indentations on the roof. It [was] also possible that [Mr] Stefanov, regardless of whether his body came in contact with the iron sheet roof, hit the concrete edge on which the roof was built. This edge is visible on the photographs and is situated at approximately 23 cm from the wall of the shed. The final stage of the fall was hitting the ground in front of the garage, where the grill is located. It [was] possible that the suffusions on the back surface of the right shoulder could have resulted from an impact against the grill. The lacerated-contusion wound on the head, in case it was turned left, as well as the fracture of the right armpit and the suffusion on the buttocks, occurred during this final stage of the fall. The other injuries were caused earlier during the fall. The two abrasions on the right wrist are consistent with handcuff marks. The hit which caused the cranial fracture and the brain contusion [was] sustained in the right frontal part of the head, where the laceratedcontusion wound, the abrasion and the suffusion [were] detected. This was a heavy impact that occurred during an earlier stage of the fall, most probably against the abovementioned concrete edge. All injuries were sustained at the same time. No injuries were found which cannot be explained with a fall from a substantial height and one that involved multiple hard impacts. [There were no injuries] from sharp weapons, firearms, or electricity. No defensive injuries were found on the body or the limbs. 56. On 21 June 1997 lieutenant I.C. was questioned by captain S.S., the military investigator who was initially in charge of the investigation. The applicants’ lawyer was also present. The lieutenant stated that he could not recall exactly the mechanism of Mr Stefanov’s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memory of the events had faded because they had taken place a long time before and had unfolded very quickly. 57. Mr D.O. was not requestioned. The Kazanluk police tried to locate him but found that his whereabouts after 1993 – when he was released and apparently not prosecuted any further for the alleged thefts – were unknown. There were some indications that he was living on the territory of the Troyan municipality, in one of the mountain villages there, but his exact address was unknown, as he had not communicated it to the address register of his previous domicile, the municipality of Muglizh. His mother’s whereabouts were also unknown, his grandfather and uncle had died, and there were no other relatives in Muglizh who could provide information about him. The applicants’ lawyer requested that the investigation remain pending until Mr D.O. was located and questioned. 58. Also, no documents were gathered about Mr Stefanov’s arrest and detention on 4 and 5 June 1993. In a letter of 20 July 1997 the head of the Kazanluk police station informed the investigation authorities that up until August 1993 the persons detained for less than twentyfour hours had simply been registered and no orders for their arrest had been issued, and that the registers for 1993 had not been preserved. 59. On 29 July 1997 investigator S.S. recommended that the investigation be discontinued. He stated that the instructions of the Military Prosecutor’s Office had been complied with in the course of the additional investigation. The register of the detained persons in the Kazanluk police station was no longer available, nor were the police fill-in forms for detention. It was therefore impossible to establish who had brought Mr Stefanov to the police station. Also, an additional inspection of the death scene had been carried out, revealing that Mr Stefanov’s body had not hit the iron sheet roof, which was not deformed, but the edge beneath it, and then the ground. This was apparent from the medical expert report. Certain witnesses had been re-questioned. The re-questioning of Mr D.O. had been impossible, as he could not be tracked down. As indicated by the medical expert report, Mr Stefanov’s death had been caused by a cranialcerebral trauma, consisting of a fracture of the skull base, contusion and oedema of the brain with a wedging of the cerebellum and a paralysis of the vital brain centres. Such injuries could be the result of a twostage fall, when the body had encountered obstacles at various heights before hitting the ground. No injuries which could not be explained with such a fall had been found, nor injuries resulting from sharp weapons, firearms, or electricity. There was thus no evidence of a criminal offence by a member of the Kazanluk police. 60. In a decision of 13 August 1997 captain I.N., prosecutor at the Plovdiv Military Regional Prosecutor’s Office, discontinued the investigation. He reasoned that all instructions contained in the decision of 9 January 1997 of the Military Prosecutor’s Office in Sofia had been complied with. The dummy test, the additional medical expert report and the newly questioned witnesses had all confirmed the circumstances underlying the first discontinuation of the investigation. There were no injuries on Mr Stefanov’s body which could not be explained by a twostage fall from a substantial height. The dummy test had determined that Mr Stefanov had first hit the concrete edge under the iron sheet roof and had then fallen on the ground. A copy of the decision was sent to the first applicant with instructions that she could appeal against it. 61. On 3 and 12 February 1998 the applicants’ lawyer requested information about the progress of the investigation. He was informed that it had been discontinued, but was not given a copy of the decision of 13 August 1997. He managed to obtain a copy only on 4 March 1998, and immediately appealed it before the Military Prosecutor’s Office in Sofia. He argued that Mr D.O. had not been questioned and that the conclusions about the details of Mr Stefanov’s fall from the window were inconsistent. 62. On 31 March 1998 colonel T.Y., prosecutor at the Military Prosecutor’s Office in Sofia, dismissed the appeal, reasoning, inter alia, that Mr Stefanov had jumped in an attempt to leave the premises of the police, that no officers were responsible for this act, and that the investigation had been objective and comprehensive. 63. The applicants’ lawyer then filed an appeal with the Chief Prosecutor. 64. On 18 May 1998 prosecutor V.P., head of the investigative department of the Military Prosecutor’s Office in Sofia, to whom the appeal was apparently referred, upheld the decision to discontinue the investigation. He reasoned that there were no indications that Mr Stefanov’s “attempt to flee” had been prompted by maltreatment by the police officers who had questioned him. According to the medical expert report, all his injuries had been caused by the fall. There was no indication that any offence had been committed by a police officer, that could be connected with Mr Stefanov’s death. A copy of his decision was sent to the applicants’ lawyer on 9 June 1998. 65. By Article 115 of the CC, murder is punishable by ten to twenty years’ imprisonment. Article 116 § 1 (2) of the CC provides that if a murder is committed by a police officer in the course of, or in connection with the performance of his or her duties, it is punishable by fifteen to twenty years’ imprisonment, or life, with or without parole. 66. Article 127 § 1 of the CC makes it an offence to aid or incite suicide, if the person concerned does subsequently commit suicide or makes an attempt to do so. By paragraph 3 of that Article, it is an offence to drive another to suicide or attempted suicide through cruel treatment or systematic humiliation, if this other person is financially or otherwise dependent on the offender, on condition that the offender contemplated that eventuality. Paragraph 4 of that Article makes it an offence to act contrary to the previous paragraph even if the offender does so out of negligence. 67. Articles 128, 129 and 130 of the CC make it an offence to inflict a light, intermediate or severe bodily injury on another. Article 131 § 1 (2) of the CC provides that if the injury is inflicted by a police officer in the course of or in connection with the performance of his or her duties, the offence is aggravated. 68. By Article 287 of the CC, as in force at the material time, it was an offence for an official, when acting in the course of, or in connection with the performance of his or her duties, to illegally coerce an accused, a witness or an expert with a view to obtaining a confession, a statement or an opinion. 69. All of the above offences are publicly prosecutable (Article 161 of the CC and Article 21 § 3 of the CCP, as in force at the material time). 70. Article 192 §§ 1 and 2 of the CCP, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The prosecutor or the investigator had to open an investigation whenever he or she received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP). If the information given to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP, as in force at the material time). A prosecutor could discontinue an investigation when, inter alia, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2) of the CCP). At the material time his or her decision was subject to appeal to a higher prosecutor (Article 181 of the CCP, as in force at the relevant time). In 2001 the CCP was amended to provide for judicial review of a prosecutor’s decision to discontinue an investigation. 71. At the material time the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction over such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 72. A person may be arrested and placed in detention in the context of pending criminal proceedings, if charges have been brought against him or her (Article 146 § 1 taken in conjunction with Article 207 of the CCP). 73. A person could also be arrested by order of an investigator and detained for up to three days if he or she was suspected of having committed an offence punishable by imprisonment, but there was not enough evidence to bring charges. The circumstances in which this could occur were limited and included the cases where (i) he or she had been caught during or immediately after the commission of the alleged offence, (ii) he or she had been named by an eyewitness, (iii) overt traces of the alleged offence were found on the person’s body or clothes or in his or her place of abode, or (iv) the person tried to flee or his or her identity could not be established and there was enough information that he or she might have committed an offence (Article 202 § 1 of the CCP, as in force at the material time). 74. Section 20(1) of the National Police Act of 1976, in force at the relevant time, provided that the police could also arrest a person if (i) his or her identity could not be ascertained, (ii) he or she behaved violently or in breach of public order, (iii) he or she refused, without just cause, to appear after having been duly summoned, (iv) he or she knowingly impeded the police from carrying out its duties, (v) he or she carried or used unlicensed firearms, cold weapons, or other dangerous devices. In all these cases the police had to immediately carry out the necessary checks. After that, but in no case later than three hours after the person’s arrest, he or she had to be released, if no order for his or her detention was made. Only when the person’s identity could not be ascertained that deadline was extended to twentyfour hours (section 20(2) of the Act). 75. The “Manual on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions” (U.N. Doc. E/ST/CSDHA/.12 (1991)), published by the United Nations in 1991, includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it is noted that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details: “It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results... It is important to have as few omissions or discrepancies as possible, as proponents of different interpretations of a case may take advantage of any perceived shortcomings in the investigation. An autopsy performed in a controversial death should meet certain minimum criteria if the autopsy report is to be proffered as meaningful or conclusive by the prosector, the autopsy’s sponsoring agency or governmental unit, or anyone else attempting to make use of such an autopsy’s findings or conclusions.” 76. In a number of reports the European Commission against Racism and Intolerance at the Council of Europe has expressed concern about racially motivated police violence, particularly against Roma. Certain other bodies and non-governmental organisations have also reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. A detailed account of these reports may be found in the Court’s judgment in the case of Nachova and Others v. Bulgaria (nos. 43577/98 and 43579/98, §§ 5559, ECHR 2005...).
| 1
|
train
|
001-90549
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF KLIBER v. POLAND
| 4
|
Violation of Article 6 - Right to a fair trial
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
4. The applicant was born in 1938 and lives in Otwock. 5. The applicant lives in a block of flats in Otwock. 6. In 1981 (according to the applicant) or in 1985 (according to the applicant’s neighbour) the applicant’s neighbour fitted bars to his balcony in such a way that they could serve as a ladder to the applicant’s apartment on the first floor, and subsequently, in 1994, he adapted part of the staircase as a cellar by constructing a wall, allegedly without the required permit. 7. On 27 June 1994 the applicant informed the competent administrative authority about the construction works and requested that his neighbour be ordered to dismantle the bars and the wall on the staircase. 8. On 28 February 1995, following numerous letters from the applicant seeking to accelerate the proceedings, the Otwock District Office (Urząd Rejonowy) ordered the applicant’s neighbour to carry out some reconstruction works on the bars. It did not refer to the wall on the staircase. 9. On an unspecified date the applicant appealed to the Warsaw Governor (Wojewoda). 10. The Warsaw Governor did not give a decision within the statutory fourteen-day time-limit. Therefore, on 12 March 1995, the applicant complained to the Chief Building Inspectorate (Główny Urząd Nadzoru Budowlanego). 11. On 18 July 1995 the Chief Building Inspector allowed the complaint and ordered the Governor to give a decision within fourteen days. 12. On 7 August 1995 the Warsaw Governor upheld the first-instance decision. The Governor did not refer to the wall. 13. On 7 September 1995 the applicant lodged a complaint with the Supreme Administrative Court (Najwyższy Sąd Administracyjny). 14. On 13 February 1997 the Supreme Administrative Court quashed the challenged decision and the decision of the first-instance authority. 15. Apparently the Supreme Administrative Court scheduled another hearing to deal with a second part of the applicant’s complaint, concerning the wall constructed on his staircase. 16. On 4 June 1997 the Supreme Administrative Court gave another judgment and ordered the Otwock District Office to give a decision in the matter of the wall constructed by the applicant’s neighbour, within one month of the date of delivery of the judgment. 17. From the day on which the Supreme Administrative Court gave its second judgment, the administrative proceedings were split into two separate sets of proceedings. 18. On 6 November 1997 the Otwock District Office ordered that expert opinions concerning fire regulations be obtained and imposed on the applicant’s neighbour an obligation to produce, within three months, a new specification for the installation of the bars on his balcony. 19. The applicant’s neighbour failed to comply with the abovementioned order and, on 10 June 1998, the Otwock District Office sent him a reminder, set an additional three-week time-limit to carry out the necessary works and informed him that failure to comply with the order within the new time-limit would result in compulsory demolition of the bars. 20. The applicant’s neighbour again did not comply with the order. 21. On 16 September 1998 the Otwock District Office ordered compulsory demolition of the bars. 22. On 28 September 1998 the applicant appealed against that decision holding that the demolition order should have concerned not only the bars, but also the canopy over the applicant’s neighbour’s balcony. 23. On 17 February 1999 the applicant complained to the Supreme Administrative Court of inactivity on the part of the administration. 24. On 24 July 2002 the applicant again lodged with the Supreme Administrative Court a complaint of inactivity on the part of the administrative authorities. 25. On 21 October 2002 the Supreme Administrative Court acknowledged that “unreasonable delay” had occurred between 28 September 1998 (the date on which the applicant had lodged his appeal against the first-instance decision) and 9 October 2002 (the date on which the appellate administrative authority gave its decision, see below). However, the court, finding that the decision following the applicant’s appeal had just been given by the Mazowsze Regional Inspector of Construction Supervision, discontinued the proceedings and refused to impose a fine on the authority for delay. 26. On 9 October 2002 the Mazowsze Regional Inspector of Construction Supervision quashed the Otwock District Office’s decision of 16 September 1998 and discontinued the proceedings, finding that the challenged decision had been founded on a wrong legal basis. 27. On 9 November 2002 the applicant appealed. 28. On 25 June 2004 the Warsaw Regional Administrative Court quashed the challenged decision, which meant that the decision ordering demolition of the bars remained in force. 29. On 6 October 2004 the Mazowsze Regional Inspector of Construction Supervision upheld the decision of 16 September 1998, which had ordered the compulsory demolition of the bars. 30. On 10 October 2004 the applicant lodged with the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego), a complaint of inactivity on the part of the Warsaw Regional Building Inspector, who had failed to enforce the final judgment of the Regional Administrative Court. 31. On an unspecified date the applicant’s neighbour appealed against the decision of 6 October 2004 to the Warsaw Regional Administrative Court. 32. On 10 January 2005 the Warsaw Regional Administrative Court ordered the applicant’s neighbour to rectify some procedural shortcomings of his appeal. He failed to do so within the prescribed time-limit and consequently on 7 February 2005, the Warsaw Regional Administrative Court dismissed his appeal. 33. On 6 January 2005 the Chief Inspector of Construction Supervision found the applicant’s complaint of inactivity ill-founded and informed the applicant that the competent authority to enforce the final judgment and order demolition of the bars was the Otwock Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego). 34. On 12 July 2008 the applicant informed the Registry that the bars had been dismantled in 2005. 35. On 29 September 1997, relying on the Supreme Administrative Court’s judgment of 4 June 1997, the Otwock District Office discontinued the proceedings in respect of the wall constructed on the applicant’s staircase, finding that, at the relevant time, no building permit for such a wall had been necessary. 36. On 27 October 1997 the applicant appealed. 37. On 6 February 1998 the Warsaw Governor upheld the challenged decision. 38. On 25 March 1998 the applicant lodged a complaint with the Supreme Administrative Court. 39. On 4 July 2002 the Supreme Administrative Court ordered the Mazowsze Regional Inspector of Construction Supervision (Wojewódzki Inspektor Nadzoru Budowlanego), who had meanwhile become the authority with jurisdiction to deal with that case, to send it the file concerning the challenged decision. 40. On 24 July 2002 the applicant lodged with the Supreme Administrative Court a complaint of inactivity on the part of the administrative authorities. 41. On 7 October 2002 the Supreme Administrative Court dismissed the applicant’s complaint against the Warsaw Governor’s decision of 6 February 1998. 42. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court’s judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
| 1
|
train
|
001-99919
|
ENG
|
MDA
|
CHAMBER
| 2,010
|
CASE OF PANOV v. MOLDOVA
| 4
|
Violation of Art. 6-1;Violation of P1-1
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant, Ms Tatiana Panov, is a Moldovan national who was born in 1954 and lives in Chişinău. 6. Since the 1980s the applicant rented an apartment owned by the Municipality. 7. In 1989 the building in which the apartment was situated was damaged with the result that it was formally declared to be no longer fit for habitation. The Municipality therefore decided to provide all the inhabitants with other accommodation. 8. Between 1990 and 2000 the applicant requested the Municipality on numerous occasions to provide her with other accommodation, but to no avail. 9. On an unspecified date in 2000 the applicant instituted civil proceedings against the Municipality. On 19 February 2001 the Centru District Court granted the application and ordered that the applicant be provided with alternative accommodation. On 27 November 2001 the Court of Appeal upheld the judgment of the District Court and the judgment became final. 10. Since the final judgment was not complied with by the Municipality, the applicant lodged an action with the Centru District Court seeking a change in the manner in which the enforcement of the judgment was to be carried out. In particular, she claimed money from the Municipality in lieu of alternative accommodation. 11. On 22 July 2003 the Centru District Court upheld the applicant's action and ordered the Municipality to pay her the price of the apartment in the amount of 11,000 United States Dollars (USD). However, that decision was also not enforced. On 18 August 2004 the applicant lodged her application with the Court, complaining of the non-enforcement of the judgment of 22 July 2003. On 14 September 2004, the Centru District Court quashed the judgment of 22 July 2003 following a revision request lodged by the Municipality and reinstated the judgment of 19 February 2001. 12. The judgment of 27 November 2001 has not been enforced to date and the applicant continues to live in her old apartment. 13. According to the Government an apartment building in which the applicant's apartment will be located is currently under construction by the Chişinău Municipality.
| 1
|
train
|
001-110675
|
ENG
|
RUS
|
CHAMBER
| 2,012
|
CASE OF GENNADIY MEDVEDEV v. RUSSIA
| 4
|
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance;Free legal assistance)
|
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
|
5. The applicant was born in 1960 and is currently serving a prison sentence in the Kemerovo Region. 6. On 9 March 2001 the applicant was arrested on suspicion of murder. He was remanded in custody pending the investigation and trial. According to the applicant, from 9 March to 4 May 2001 no medical assistance was available to him and from 12 March to 15 June 2002 he was detained in appalling conditions. 7. On 3 May 2002 the applicant broke a toe on his right foot. The fracture caused him severe pain which allegedly rendered him unfit to attend the trial on 3 and 6 May 2002. 8. On 15 July 2002 the Kemerovo Regional Court found the applicant guilty of murder, abduction, disturbance of the peace and illegal possession of firearms, and sentenced him to eighteen years’ imprisonment. Both the applicant and his lawyer submitted statements of appeal. 9. On 5 September 2002 the applicant was allegedly beaten by guards. He complained to the prosecutor but to no avail. 10. On an unspecified date the Supreme Court of the Russian Federation dismissed the applicant’s request for the appointment of a lawyer to represent him before the appellate court, noting that “the applicable rules of criminal procedure [did] not provide for the appointment of a public defender to represent a defendant in appeal proceedings”. 11. On 24 April 2003 the Supreme Court acquitted the applicant on the charge of disturbance of the peace, upheld the remainder of the verdict and reduced the applicant’s sentence to seventeen and a half years’ imprisonment. The applicant was not present or represented during the hearing. The prosecutor was present and made submissions to the court. 12. On 14 May 2004 the Yurga Town Court reclassified the applicant’s conviction in accordance with the latest amendments to the Russian Criminal Code, reducing his sentence to seventeen years’ imprisonment. 13. On 16 November 2007 the Deputy Prosecutor General of the Russian Federation asked the Presidium of the Supreme Court of Russia for a supervisory review of the judgment of 24 April 2003 in view of a violation of the applicant’s right to be represented by a State-appointed lawyer before the appellate court. 14. On 28 December 2007 the Supreme Court granted the prosecutor’s request and remitted the matter for further consideration to the Presidium of the Supreme Court. 15. On an unspecified date the Supreme Court appointed counsel P. to represent the applicant in the supervisory-review proceedings. 16. On 12 March 2008 the Presidium of the Supreme Court quashed the judgment of 24 April 2003 by way of supervisory review and remitted the matter for fresh consideration. The court expressly acknowledged the violation of the applicant’s right to legal assistance. The applicant did not participate in the hearing. Counsel P. was present and made submissions to the court. 17. On 27 June 2008 the Town Court again reclassified the applicant’s conviction in accordance with the latest amendments to the Russian Criminal Code, reducing his sentence by six months. 18. On 1 July and 1 October 2008 the Supreme Court received additional statements of appeal from the applicant whereby he also requested the court to appoint a public defender to represent him. The court appointed counsel K. On 15, 16, 22 and 24 September 2008 counsel K. studied the case-file. 19. The applicant requested to take part in the appeal hearing in person. On 16 July 2008 the Supreme Court granted him leave to attend in person and ordered the applicant’s temporary transfer to a remand prison in Kemerovo (3,742 kilometres away from Moscow) to ensure his participation in the appeal hearing by means of video link. 20. On 1 October 2008 the Supreme Court held the appeal hearing. The applicant participated in the hearing by means of a video link. Counsel K. attended the hearing and made submissions to the court. According to the applicant, he was provided with an opportunity to communicate with counsel K. prior to the hearing (he did not provide further detail as regards the time and means of such communication). The court acquitted the applicant on the charges of disturbance of the peace and illegal possession of firearms, upheld the remainder of the verdict and reduced the applicant’s sentence to sixteen years’ imprisonment. The court further granted counsel K.’s application for reimbursement of his fee and awarded him 5,967.5 Russian roubles (RUB) – approximately 165.4 euros (as per the Euro foreign exchange reference rate of the European Central Bank at 1 October 2008) – to be paid by the applicant. 21. The applicant provided the following description of the appeal hearing: “The appeal hearing was conducted by means of a video link. The video link was of poor quality. The image [quality] remained unchanged, but there were interruptions in the sound and not everything that was said was understandable. ... After the court opened the hearing I was invited to make a statement. Then I asked the court to admit to the case-file the documents that proved my innocence. These were the documents showing that secretary G. had not been present at a number of trial hearings and that my lawyer had been absent from one of the court hearings. Despite that, the court hearing had not been adjourned and the court had proceeded with the examination of the witnesses. The [trial] court had not respected my right to defend myself and had proceeded with the examination of the case when I had a fracture [of the toe]. The court interrupted me, saying that I was deliberately delaying the proceedings and that they had other cases to consider after mine. After the judge rapporteur had presented the case I was invited to present my complaint. However, when I started reading out my statement of appeal the judge interrupted me, saying that those issues had been already considered in the previous appeal hearing or had been submitted in the statements of appeal. The court heard the prosecutor and [my] counsel, who failed to present any argument in my defence. He merely suggested that the charges [of illegal possession of firearms and disturbance of the peace] should be dropped owing to the expiry of the statutory time-limit for prosecution or decriminalisation of the offence. Then the judges exited to the deliberations room without giving me a chance to make my final statement. When the judges returned and pronounced their decision, I realised that neither counsel, the prosecutor, nor the court had studied my case. They were simply giving the appearance of a hearing.” 22. According to the applicant, in 2001 numerous newspapers and television channels covered his case. In one article the applicant was referred to as “a gang leader”. The regional officials who were quoted in the articles expressed the opinion that the applicant was guilty of murder, thus appearing to rule out the possibility that he had acted in self-defence. 23. For a summary of the relevant domestic provisions and practice, see the case of Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 31-39, 2 November 2010.
| 0
|
train
|
001-89506
|
ENG
|
CZE
|
CHAMBER
| 2,008
|
CASE OF FESAR v. THE CZECH REPUBLIC
| 3
|
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
|
7. The applicant was born in 1965 and lives in Bayreuth, Germany. 8. On 22 May 1996 the applicant was charged with attempted tax evasion under sections 8 § 1, 10 § 1 b) and 148 §§ 1 and 2 c) of the Criminal Code. 9. On 27 March 1997 the applicant and eight other persons, inter alia J.R., were officially indicted. 10. A main hearing before the Ostrava District Court (okresní soud) was scheduled as early as 28 April 1997 to be held in July 1997. It took place on 1 to 8 July 1997 and then on 17 July 1997. During the hearing of 3 July 1997 the applicant declared that he refused to attend further hearings; these then took place in his absence. The court requested a report from the prison doctor on the applicant’s bizarre behaviour during the main hearing of 3 July 1997 and with regard to the report on the applicant’s injury that occurred on 3 July 1997 in custody and to the report of 4 July 1997 on the use of a coercive measure against the applicant in custody due to his aggressiveness. It his report the prison doctor noted that the applicant was not able to attend the main hearings. It became necessary to carry out a psychological and psychiatric examination of the applicant, and the prison doctor did not recommend that the applicant attend the new main hearing. On 7 July 1997 the applicant’s and J.R.’s criminal case was severed for separate consideration and decision. 11. On 22 July 1997 the applicant was moved to the prison hospital whence he was transported back to the custody prison on 4 September 1997. 12. On 20 August 1997 the Regional Court submitted the applicant’s and J.R.’s criminal case to the Olomouc High Court (Vrchní soud) for the purpose of a decision on the regional prosecutor’s complaint that concerned, inter alia, J.R.’s detention during judicial proceedings. The Regional Court’s presiding judge asked the High Court for the file in order to make a copy for the applicant’s and J.R.’s severed criminal case. According to the Government, the file was lent to the Regional Court on 28 November 1997. Therefore, between 20 August and 28 November 1997 the Regional Court did not have the relevant file at its disposal. 13. On 19 December 1997 the Ostrava Regional Court (krajský soud) transferred the applicant’s and J.R.’s criminal case to the District Court as a court with jurisdiction in rem and local jurisdiction. 14. On 18 May 1998 the District Court convicted the applicant of tax evasion and sentenced him to eighteen months’ imprisonment. On the same day, the applicant was released from custody. 15. On 13 August 1998 the Regional Court dismissed an appeal by the applicant against the District Court’s judgment. 16. On 2 September 1998 the District Court approved the deduction of the applicant’s pre-trial detention from his sentence. 17. On 23 May 1996 the District Court remanded the applicant in custody under Article 67 b) of the Code of Criminal Procedure (“the CCP”), with backdated effect from 22 May 1996. The court held that there was a risk that the applicant would influence witnesses and his co-accused. 18. On 24 June 1996 the Regional Court upheld the detention order, stating that the applicant’s detention was necessary, inter alia, in order to confront him with J.R., to interview the witnesses and eventually to confront the witnesses with the co-accused. The court found, therefore, that in this stage of the proceedings, the applicant’s detention was justified under 67 b) of the CCP. 19. On 17 July 1996 the District Court rejected the applicant’s first request for release, noting that the grounds for custody still persisted under Article 67 b) of the CCP. The court noted that other persons would be examined, which was supported by the content of the confrontation carried out between the applicant and J.R. There continued to be concerns that the applicant would interfere with witnesses. 20. On 26 August 1996 the Regional Court rejected the applicant’s complaint filed on 1 August 1996 against this decision. 21. On 30 October 1996 the District Court decided to release the applicant on a request for release lodged by him on 24 September 1996. On 26 November 1996 the Regional Court, on an appeal by the Ostrava Regional Prosecutor, (krajský prokurátor), quashed the District Court’s decision. In the court’s opinion, grounds for custody still existed under Article 67 b) of the CCP, which consisted of the possibility of his interfering with witnesses who had not yet been examined, and there was also a risk of possible interference with the co-accused. 22. On 23 October 1996 the Regional Prosecutor requested an extension of the applicant’s detention due to the fact that his custody would end on 22 November 1996 and it would not be possible to conclude the case by then because of its scope. 23. On 8 November 1996 the Regional Prosecutor filed a complaint against the District Court’s decision of 5 November 1996 in which the court had rejected the Regional Prosecutor’s motion. On 26 November 1996 the Regional Court granted this complaint, quashed the District Court’s decision and extended the applicant’s custody to 26 January 1997 pursuant to Article 71 § 2 of the CCP. 24. On 16 January 1997 the District Court extended the applicant’s detention until 27 March 1997, on a request by the Regional Prosecutor of 7 January 1996, concluding that a risk still persisted that the applicant would influence witnesses. On 17 February 1997 the Regional Court rejected a complaint filed by the applicant on 22 January 1997 against the District Court’s decision, referring, inter alia, to the complex character of the case. 25. On 6 March 1997 the District Court granted a request made by the applicant on 24 February 1997 and decided to release him from custody. It found: “After examining the applicant’s requests, the opinions of the prosecutor and the ... investigation file, the court drew the conclusion that the reasons for [the applicant’s] detention ... ceased to exist. The accused ... is prosecuted for a single [offence], ... necessary investigative acts were carried out and, on 24 February 1997, the investigation was closed ... In the course of the investigation, nothing was found which would prove or indicate that the accused ... attempted to influence the witnesses or his co-accused or that he tried to jeopardise the discovery of facts, which were essential for the criminal investigation. Thus, there are no longer the original grounds for concern, within the meaning of section 67 b) of the [CCP], and taking into account that there are no other reasons for the detention, [the court] decided to release the accused from custody ...” 26. On 24 March 1997 the Regional Court, upon the Regional Prosecutor’s appeal of 12 March 1997, quashed the District Court’s decision and ordered the applicant’s continued remand in custody, stating: “The Ostrava Regional Prosecutor filed a complaint against the decision of the District Court ... maintaining that the reasons for the accused’s detention under section 67 b) of the [CCP] continue to exist, having regard to the fact that there is still a risk that, if released, the accused would influence witnesses and/or the co-accused who have not yet been interviewed by the court, and, in addition, the residence of one witness has not yet been established.” 27. On 7 May 1997 the Regional Court dismissed a further request by the applicant for release from custody, filed on 5 May 1997. On 29 May 1997 the High Court rejected a complaint by the applicant of 13 May 1997 against the Regional Court’s decision. 28. On 18 September 1997 the Regional Court rejected a request by the applicant for release from custody of 28 August 1997. On 22 October 1997 the High Court rejected a subsequent complaint by the applicant of 23 September 1997 against the Regional Court’s decision. 29. While transferring the case to the District Court (see paragraph 11 above), the Regional Court dealt of its own motion under Article 72 § 1 of the CCP with the question whether grounds for remaining the applicant in custody continued to apply, and decided to keep him in detention. On 5 January 1998 the applicant filed a complaint against this decision, which was rejected by the High Court on 22 January 1998. 30. On 20 February 1998 the applicant requested release, which the District Court rejected on 19 March 1998. The Regional Court dismissed a complaint by the applicant against this decision on 25 March 1997. 31. On 27 April 1998 the High Court rejected a request by the District Court of 9 April 1998 for an extension of the applicant’s detention under Article 71 § 3 of the CCP by four months over two years, that is to 22 September 1998. 32. On 18 May 1998 the applicant was released from custody at his request, made on 15 April 1998. 33. On 14 April 1997 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the Regional Court’s decision of 24 March 1997 claiming, inter alia, that there had been no reason for keeping him in custody. 34. On 9 May 1997 the Regional Court and the Regional Prosecutor were invited to submit their observations on the constitutional appeal. The Regional Court’s observations were submitted on 28 May 1997 and the Regional Prosecutor’s observations on 13 June 1997. 35. In subsequent period, the Constitutional Court regularly requested the ordinary courts to lend it file materials. From the Constitutional Court’s file it can be seen that requests to lend the file materials or furnish information as to the location of the file materials were made on 5 August, 2 September and 10 December 1997, 25 March, 9 April, 7 and 21 May, 18 June, 2 July, 2 and 26 October 1998, 19 January, 9 June and 4 November 1999, and 21 June, 7 July and 24 August 2000. 36. On 30 January 2001 the Constitutional Court found that the reasons for the applicant’s continued detention, as provided for in section 67 b) of the CCP, were well-founded. It stated, however, that the Regional Court had failed to reason its decision of 24 March 1997 sufficiently and that the applicant’s rights to a fair trial, guaranteed by Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), and to liberty, under Article 5 § 1 of the Convention, had been violated. It therefore quashed the Regional Court’s decision. 37. Under Article 67 b) an accused person may be remanded in custody only if there exist specific grounds to believe that he or she will try to influence witnesses or co-accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings, or will commit an offence which he or she was preparing or threatened to commit. 38. Pursuant to Article 71 § 2, a person’s detention may last as long as is necessary. If the detention lasted more than six months at the pre-trial stage and the release of the accused person would have jeopardised or substantially complicated the achievement of the aim of the proceedings, a judge can extend the detention for one year, or a chamber for two years. 39. Under Article 71 § 3 a person’s detention at the pre-trial stage and at trial should not exceed two years. If, because of the complexity of the matter or for other serious reasons, it has not been possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings, the High Court can extend the detention for the necessary period.
| 1
|
train
|
001-57510
|
ENG
|
DEU
|
CHAMBER
| 1,978
|
CASE OF KLASS AND OTHERS v. GERMANY
| 2
|
Preliminary objection rejected (victim);No violation of Art. 8;No violation of Art. 13;No violation of Art. 6
| null |
10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans-Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim. All five applicants claim that Article 10 para. 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as "the G 10"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court (Bundesverfassungsgericht). 11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.). Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed. 12. As regards the applicants’ right to apply to the Constitutional Court, that Court held, inter alia: "In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." (ibid, pp. 16-17). 13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them. On this point, the Agent of the Government made the following declaration before the Court: "To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission’s approval, authorised me to make the following statement: At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure." The contested legislation 14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained "the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic". Under the same provision, these rights were to lapse "when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order". 15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively. The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared: "The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective." 16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides: "(1) Secrecy of the mail, post and telecommunications shall be inviolable. (2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives." 17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against "imminent dangers" threatening the "free democratic constitutional order", "the existence or the security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic and the security of "the troops of one of the Three Powers stationed in the Land of Berlin". According to Article 1 para. 2, these measures may be taken only where there are factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5). Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult (aussichtslos oder wesentlich erschwert). The surveillance may cover only "the suspect or such other persons who are, on the basis of clear facts (bestimmter Tatsachen), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use" (sub-paragraph 2). 18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder (Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder), the Army Security Office (Amt für Sicherheit der Bundeswehr) and the Federal Intelligence Service (Bundesnachrichtendienst). The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2). Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3). 19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court’s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called "the G 10 Commission"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures. 20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered. The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4). 21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory. The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court’s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above). The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions. The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government. For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation. 22. According to Article 1 para. 9, sub-paragraph 5, of the G 10: "... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures." The official statement of reasons accompanying the Bill contains the following passage in this connection: "The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ... The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ..." (Bundestag document V/1880 of 13 June 1967, p. 8). 23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual’s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act). The Agent of the Government admitted that this remedy might be employed only on rare occasions. 24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law. 25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications. Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor’s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure). These provisions are not, however, in issue in the present case.
| 0
|
train
|
001-87775
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
MARTIN v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr Francis Martin, is a British national who lives in County Fermanagh, Northern Ireland. He was represented before the Court by Ms W. Stewart, Fermanagh Citizen’s Advice Bureau. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 19 January 1987, leaving four children born in 1972, 1973, 1976 and 1979. On 12 May 2000 the applicant applied for widows’ benefits. On 26 May 2000 the applicant 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 Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0
|
train
|
001-5602
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,000
|
CAGLAR v. GERMANY
| 4
|
Inadmissible
|
Antonio Pastor Ridruejo
|
The applicant, a Turkish national born in 1946, lives in Ober-Ramstadt (Germany). He is represented before the Court by Mrs Antje Martens, a lawyer practising in Ober-Ramstadt. On 9 September 1971 the applicant entered Germany by virtue of the Agreement concluded on 30 October 1961 between the Government of the Federal Republic of Germany and the Government of the Republic of Turkey on the recruitment of Turkish workers. The applicant was granted the appropriate work and residence permits. On 17 September 1987 he was granted a residence permit of unlimited duration. The applicant was first employed by a company in Rohrbach. Thereafter he worked in various restaurants. The applicant’s wife entered Germany in 1972 with the couple’s three children born in Turkey in 1964, 1968 and 1970. She holds a permanent residence permit. On 12 July 1988 the applicant was arrested and detained pending trial on suspicion of being implicated in a case of drug trafficking. By a judgment of 6 November 1991, which subsequently became final, the Darmstadt Regional Court (Landgericht) convicted the applicant of illegal drug trafficking and sentenced him to seven years’ imprisonment. The applicant’s accomplice was convicted of illegal drug trafficking and attempted importation of narcotics and sentenced to seven years’ and three months’ imprisonment. The court found that the applicant who was not a drug addict, had bought together with his accomplice, a co-national, approximately 1,000 grams of heroin for the price of 70,000 German marks. In March/April 1987 a third person supplied them with two samples of respectively half a gram of heroin. Not being satisfied with the quality, they refused to buy a larger amount. One month later further negotiations took place with the same person and with the same result. As from August 1987 the applicant’s accomplice sold several times altogether about 100 grams of heroin in quantities of 5 to 14.5 grams. According to the court, the applicant and his accomplice acted in a professional way to the detriment of the health and life of numerous drug addicts. Since 10 September 1992 the applicant served his sentence in the Darmstadt prison. He was granted day parole release and worked for a private enterprise in Weiterstadt. On 24 February 1993 the Darmstadt Regional Court ordered the applicant’s release on probation. The applicant was released on 4 March 1993. He was employed by the private enterprise until 31 August 1993. After having heard the applicant on several occasions, the Darmstadt-Dieburg Administrative Authorities ordered the applicant’s expulsion on 1 December 1993 and invited him to leave Germany within three months. The decision to expel the applicant was based on Sections 47 and 48 of the Aliens Act (Ausländergesetz) according to which an alien is to be expelled when he has been sentenced to a minimum of five years’ imprisonment and serious reasons of public safety and order justify his expulsion. The Administrative Authorities pointed out that the applicant had been convicted of drug offences, sentenced to seven years’ imprisonment and it considered that his expulsion had to be ordered on general preventive grounds having the objective of deterring other aliens. Furthermore, the applicant’s personal conduct when committing the offences indicated a specific risk of re-offending. The Administrative Authorities noted that the applicant’s wife lived for many years in Germany and was granted a residence permit. However, a medical examination did not show that she suffered from psychiatric health problems, as was alleged by the applicant. The couple’s three children were of full age and sufficiently independent to organise their life without their father. The Administrative Authorities concluded that the applicant’s expulsion was justified by the public interest, which had greater importance than the applicant’s personal interest to stay in Germany. Following the partial dismissal of his objection (Widerspruch), the applicant brought the case before the Darmstadt Administrative Court (Verwaltungsgericht). On 3 March 1998 the Administrative Court dismissed the applicant’s claim to have the expulsion order revoked. The court considered that the applicant’s conviction of drug trafficking and his term of emprisonment of seven years reflected a serious breach of public order. The applicant had direct and narrow connections with drug dealers and the drug scene. He had acted in a professional manner as was shown by the quantity of the heroin and the fact that in March/April 1987 he and his accomplice twice refused to accept offers to buy heroin because of its unsatisfactory quality. This also proved that the applicant had a profound knowledge of drugs and did not accept bad quality. Furthermore, the heroin was sold in quantities of five to ten grams during a longer period and the deals were concluded generally in the restaurants in which the applicant was employed. Finally it had to be taken into account that the applicant did not make his confession until very late in the proceedings, namely when he realised that he had no other choice. For that reason, his sentence was relatively more severe than that of his accomplice. The court added that there was no doubt that offences such as illegal heroin trafficking, because of the danger they present for the health of the users and the widespread drug-related criminality, constituted a particularly serious threat to public safety and justified the expulsion of aliens who contravened the laws on drugs for the purpose of deterring other aliens. The court found that the applicant’s conduct which gave rise to his conviction was evidence of a genuine and sufficiently serious risk that he might commit further drug offences. Furthermore, there was no indication of exceptional circumstances that would justify non-expulsion. The court noted that the applicant had been integrated into Germany after having lived there for more than 26 years with his wife and other close members of his family, and that he had been legally employed there for years. The court considered, however, that a foreign national could be denied the right to the protection of his marriage on the basis of general preventive grounds if he had committed drug offences. The applicant’s case was therefore not different from that of other aliens who after a long stay had to leave the country for having committed serious offences. Moreover, the Administrative Court found that the interference with the applicant’s right to respect for his private and family life, as guaranteed by Article 8 § 1 of the Convention, did not infringe the principle of proportionality. The measure complained of was not disproportionate to the seriousness of the offences committed by the applicant and was thus justified under paragraph 2 of this provision. On 25 June 1998 the applicant filed a request for leave to appeal (Antrag auf Zulassung der Berufung). On 28 April 1999 the Hessen Administrative Court of Appeal (Hessischer Verwaltungsgerichtshof) dismissed this request and on 4 November 1999 rejected the applicant’s request to reconsider this decision. On 22 November 1999 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicant’s constitutional complaint for adjudication and on 4 February 2000 declined to accept for adjudication the applicant’s constitutional complaint against the communication of the Hessen Administrative Court of Appeal of 4 November 1999. In the meantime, on 10 June 1999, the Darmstadt-Dieburg Administrative Authorities had informed the applicant that he would be expelled to Turkey if he did not to leave Germany before 15 July 1999. On 2 July 1999 the applicant filed an objection against this decision. He submitted that he had not committed any offence after his conviction in 1991. His personal conduct did thus not indicate any specific risk to the requirements of public order and safety. Furthermore, his wife suffered from serious psychiatric health problems and needed his help. According to him, his expulsion could not be justified only on the basis of general grounds of prevention. On 7 January 2000 the applicant applied for an interim injunction (einstweilige Anordnung) requesting to stay his expulsion pending the administrative proceedings. On 12 May 2000 the Darmstadt Administrative Court dismissed the request. It confirmed the decision to expel the applicant to Turkey reaffirming that the applicant’s personal interest to stay in Germany did not outweigh the public interest to expel him. On 4 October 2000 the Hessen Administrative Court of Appeal dismissed the applicant’s request for leave to appeal (Antrag auf Zulassung der Beschwerde). On 3 November 2000 the applicant filed a constitutional complaint against this decision and applied for an interim injunction. These proceedings are still pending.
| 0
|
train
|
001-58909
|
ENG
|
POL
|
GRANDCHAMBER
| 1,999
|
CASE OF JANOWSKI v. POLAND
| 1
|
No violation of Art. 10
|
Luzius Wildhaber;Nicolas Bratza
|
7. The applicant was born in 1937. He is a journalist and lives in Zduńska Wola, Poland. 8. According to the applicant, on 2 September 1992 he noticed two municipal guards who were ordering street vendors to leave a square in Zduńska Wola where selling was allegedly not authorised by the municipal authorities and to move their makeshift stands to a nearby market-place. The Government maintain however that the guards, who were acting on sanitary and traffic considerations, merely requested the vendors to move to a nearby market-place. The applicant further submits that he intervened, informing the guards that their actions had no legal basis and infringed the laws guaranteeing freedom in the economic field. He pointed out that the municipal authorities had not passed any resolution which would allow the guards to clear the square. The applicant observed that the guards were apparently acting only on the basis of verbal instructions from the mayor and urged the vendors to stay. The exchange between the applicant and the guards was witnessed by a group of bystanders. 9. Subsequently, on an unspecified date, the Zduńska Wola district prosecutor (Prokurator Rejonowy) instituted criminal proceedings against the applicant. On 5 January 1993 the district prosecutor lodged a bill of indictment with the Zduńska Wola District Court (Sąd Rejonowy). The applicant was charged with having insulted municipal guards while they were carrying out their duties and with having acted with flagrant contempt for legal order, an offence specified in Article 236 of the Criminal Code read together with Article 59 § 1. 10. On 29 April 1993 the District Court convicted the applicant under Article 236 of the Criminal Code of verbally insulting two municipal guards. It held that the offence was an act of hooliganism within the meaning of Article 59 § 1 of the Criminal Code. The applicant was sentenced to eight months’ imprisonment suspended for two years and a fine of 1,500,000 old zlotys (PLZ). He was also ordered to pay the sum of PLZ 400,000 to charitable institutions and court costs of PLZ 346,000. 11. On an unspecified date the applicant filed an appeal against this judgment, submitting that his conviction was based on insufficient evidence. He pointed out that the District Court had failed to establish precisely what defamatory words had been used and had only found that the applicant had called the guards “ignorant”. This word should not have been regarded as an insult but as an acceptable criticism of public servants. The applicant further contended that the trial court had wrongly applied the law since, contrary to its findings, it was evident that his acts had not involved any act of hooliganism as he had only intended to protect street vendors from illegal actions of the municipal guards. 12. On 29 September 1993 the Sieradz Regional Court (Sąd Wojewódzki) quashed the part of the contested judgment relating to the sentence of imprisonment and the order to pay PLZ 400,000 to charitable institutions. However, it upheld the fine of PLZ 1,500,000 and reduced the court costs to the sum of PLZ 150,000. The Regional Court was of the opinion that the trial court had wrongly considered that the offence at issue had been hooligan in nature as the applicant’s motive had been to defend street vendors against the acts of the municipal guards which he had considered illegal. Therefore the applicant had not acted as he did without any justifiable motive, which was a prerequisite for finding that the offence was an act of hooliganism. 13. Furthermore, the Regional Court agreed with the applicant that the Zduńska Wola municipal council had not passed any resolution prohibiting the sale of merchandise on the streets and that no public notice to this effect had been posted at the material place and time. Therefore, there were no grounds for the trial court’s finding that the applicant had demonstrated flagrant contempt for legal order. 14. Finally, the Regional Court observed that the judgment had not mentioned the abusive words used by the applicant. Nevertheless, it considered that there was sufficient evidence in the case file to conclude that the applicant had in fact insulted the guards by calling them “oafs” and “dumb” (“ćwoki” and “głupki”). These words were widely considered to be offensive and by using them the applicant had exceeded the limits of freedom of expression. The court found that the resulting conviction was rightly imposed under Article 236 of the Criminal Code whose object was to ensure that civil servants were not hindered in carrying out their duties. 15. At the relevant time the legislation provided as follows: Article 236 of the Criminal Code: “Anyone who insults a civil servant ... during and in connection with the carrying out of his official duties is liable to up to two years’ imprisonment, to restriction of personal liberty or to a fine.” “Kto znieważa funkcjonariusza publicznego … podczas i w związku z pełnieniem obowiązków służbowych, podlega karze pozbawienia wolności do lat 2, ograniczenia wolności albo grzywny.” Article 59 § 1 of the Criminal Code: “If a perpetrator has committed a premeditated offence of a hooligan nature, the court shall impose a sentence of imprisonment not lower than one and a half times the minimum sentence provided ...” “Jeżeli sprawca dopuścił się umyślnego występku o charakterze chuligańskim, sąd wymierza karę pozbawienia wolności nie niższą od dolnego zagrożenia zwiększonego o połowę …” Article 120 § 14 of the Criminal Code provided that an offence should be regarded as being of a hooligan nature if the perpetrator acted in public, without any justifiable motive or with an obviously unjustified one, thus demonstrating flagrant contempt for legal order.
| 0
|
train
|
001-23632
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,003
|
BÖHM v. GERMANY
| 4
|
Inadmissible
|
Ireneu Cabral Barreto
|
The applicant, Mr Klaus Jürgen Böhm, is a German national, who was born in 1943 and lives in Königstein. He is represented before the Court by Mr Kleine-Kosak, a lawyer practising in Freiburg im Breisgau. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a tax consultant and accountant, represented mainly low-income employees or foreigners in proceedings before the Hessian Tax Court (Hessisches Finanzgericht). In the course of these proceedings he came into conflict with R., judge and subsequently presiding judge of the competent senate of the Tax Court. In the beginning of 1988 judge R. informed the applicant on two occasions by telephone that the court had repeatedly warned him about his behaviour vis-à-vis the Court. On 8 March 1988, during the suspension of a hearing, the judges, among them judge R., mentioned in the applicant’s absence the possibility to bring the proceedings to an end by putting the applicant under pressure and imposing on him the costs of the proceedings or of an expert opinion. Thereafter the applicant successfully challenged the former presiding judge for bias. Subsequently, the Tax Court objected to the validity of the powers of attorney submitted by the applicant and excluded him from representing his clients in the further proceedings. On the applicant’s appeal, the Federal Tax Court (Bundesfinanzhof) quashed the decisions by the Hessian Tax Court given in this respect and confirmed the validity of the applicant’s mandate. On another occasion, in reply to a question of the president of the Tax Court how to proceed with the numerous cases brought by the applicant, judge R. declared at a meeting of the judges of the Hessian Tax Court held on 22 August 1990 that, as a matter of course, these cases would be disposed of and sent to Munich. On 12 and 14 November 1991, following various procedural requests and challenges for bias filed by the applicant, the Tax Court refused to accept the applicant as representative acting on behalf of his clients in further proceedings on the ground that he was unable or unwilling to make adequate oral or written submissions. On 2 December 1992 the Federal Tax Court quashed this decision. The applicant subsequently challenged judge R. for bias in numerous other proceedings. In letters of 1 and 12 February 1996, the applicant wrote to the Hessian Tax Court, among others, that judge R. had a hostile attitude to law and knowingly accepted perversion of justice. Furthermore, in a document of 1 February 1996, he compared judge R. to a judge committed to the methods of the Reichs Tax Court (Reichsfinanzhof) or the People’s Court (Volksgerichtshof). On 3 April 1996 the applicant asked a court official to tell judge R. that he was feeble-minded for having fixed a very short time-limit for the submission of numerous documents that had so far only been sent by fax. On 7 April 1998, the Kassel District Court (Amtsgericht) convicted the applicant for defamation (Beleidigung) in three cases, in accordance with Article 185 of the German Penal Code, and imposed a fine of 3,000 German Marks upon him. On 29 March 1999 the Kassel Regional Court (Landgericht) dismissed the applicant’s appeal and, upon the public prosecutor’s appeal, increased the fine to 4,800 German Marks. It found that the applicant had tarnished the reputation of judge R. in that, firstly, he had accused him of perversion of justice, secondly, compared him to a judge of the People’s Court and, thirdly, characterised him as feeble-minded. As regards the applicant’s defence that he had acted for the protection of his clients’ legitimate interests, the Court considered that the insulting remarks at issue had been unnecessary and inappropriate. The applicant could have made use of the available legal remedies. On 17 Mai 2000, the Frankfurt Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on points of law as being ill-founded. Sitting as a committee of three judges, the Federal Constitutional Court (Bundesverfassungsgericht) decided on 27 July 2000 not to entertain the applicant’s constitutional complaint. Article 185 of the Penal Code provides: “Defamation shall be punished with imprisonment for not more than one year or a fine and, if the defamation is committed by means of violence, with imprisonment for not more than two years or a fine.” Article 193 of the Penal Code provides: “Critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests, as well as remonstrance and reprimands of superiors to their subordinates, official reports or judgments by a civil servant and similar cases are only punishable to the extent that the existence of an defamation results from the form of the utterance of the circumstances under which it occurred.”
| 0
|
train
|
001-103674
|
ENG
|
RUS
|
CHAMBER
| 2,011
|
CASE OF TSARENKO v. RUSSIA
| 4
|
Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13+3
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
4. The applicant was born in 1989 and lived in St Petersburg until the time of his arrest. 5. On 12 March 2007 the applicant was arrested on suspicion of killing and/or causing grievous bodily injuries to several individuals. On the following day the Pushkinskiy District Court of St Petersburg remanded him in custody. 6. On 10 May, 14 June, 29 August and 3 December 2007 and 18 January 2008 the Pushkinskiy District Court extended the authorised period of the applicant's detention for up to a total duration of one year. 7. On 26 February, 2 April and 3 June 2008 the St Petersburg City Court authorised further extensions of the applicant's pre-trial detention until 4 August 2008. No appeal was lodged against the extension orders. 8. On 21 July 2008 the pre-trial investigation was completed and the applicant was granted access to the case file. 9. On 30 July 2008 the St Petersburg City Court granted the prosecutor's application for a further extension of the applicant's detention until 12 September 2008, that is, for a total duration of eighteen months. The City Court referred to the gravity of the charges against the applicant, the existence of a reasonable suspicion of his involvement in the commission of the alleged offences and certain “objective circumstances”, in particular, the fact that the defendants had not yet finished studying the case file. 10. On 5 August 2008 counsel for the applicant lodged an appeal against the extension order. Counsel pointed out that the City Court had failed to identify any concrete facts to justify the risks of absconding, reoffending or obstructing justice. She alleged a violation of Article 5 § 3 of the Convention. On 22 September 2008 the Supreme Court of the Russian Federation rejected the appeal, finding that the gravity of the charges could be taken into account when deciding to extend the pre-trial detention. 11. In the meantime, the prosecution applied for a further extension of the applicant's detention. It was submitted that he stood accused of a serious criminal offence and had not yet finished reading the case file. The defence objected to the extension and emphasised that the applicant had a place of permanent residence, no criminal record and positive references. 12. On 10 September 2008 the City Court granted the extension sought by the prosecution, referring to the gravity of the charges against the applicant and the medical findings that he did not have any health issues which could have required his release. The extension was granted until 4 October 2008, by reference to Article 109 of the Code of Criminal Procedure. 13. On 17 September 2008 counsel for the applicant appealed against the extension order. She submitted that neither the gravity of the charges nor the fact that the applicant had not finished studying the file were relevant or sufficient grounds for extending his pre-trial detention. On 5 November 2008 the Supreme Court rejected the appeal. Neither the applicant nor his counsel were present at the appeal hearing. 14. On 1 October 2008 the City Court granted a further extension of the applicant's detention until 4 December 2008, finding in particular as follows: “The gravity and public dangerousness of the crimes imputed to Mr Tsarenko are such that an undertaking to appear would not be sufficient to guarantee his appearance before the investigator or in court or to ensure his law-abiding conduct.” 15. In the statement of appeal, counsel for the applicant pointed out that on 10 September 2008 the City Court had already granted one extension for the purpose of studying the file and that Article 109 §§ 7 and 8 of the Code of Criminal Procedure did not provide for a possibility to grant repeated extensions for that same purpose. In her submission, a second extension of the detention period, such as the one authorised by the City Court on 1 October 2008, was contrary both to the letter of Article 109 and to its interpretation given in the Constitutional Court's judgments no. 167-O of 25 December 1998 and no. 352-O of 11 July 2006 (cited below), and was therefore arbitrary and incompatible with Article 5 of the Convention. 16. The applicant sought leave to appear in person before the appeal court. On 20 November 2008 the Supreme Court refused him leave on the ground that the applicant had not submitted a separate statement of appeal and his presence would not therefore be indispensable. In the same hearing, the Supreme Court rejected the appeal against the extension order in a summary fashion. On the issue of the alleged unlawfulness of repeated extensions, it found as follows: “The argument to the effect that the judge was not authorised to grant a second extension of the detention period for studying the criminal case file on the same grounds may not be taken into account because it is not founded on law, which was given an incorrect interpretation [sic].” 17. On 3 December 2008 the St Petersburg City Court granted a further extension of the applicant's detention until 4 February 2009, noting that the preventive measure was lawful and justified, taking into account the gravity of the charges and “information on [the applicant's] character”. On 19 January 2009 the Supreme Court refused the applicant leave to appear and rejected the appeal lodged by his counsel. It expressed the view that Article 109 § 7 permitted repeated extensions of the detention period when it was necessary to allow the defendant to finish studying the case file. 18. On 3 February and 1 April 2009 the City Court examined further requests by the prosecution for extensions of the applicant's detention and granted the extensions requested. It held that the applicant could not be released on an undertaking to appear because of the gravity and “public importance” of the crimes imputed to him. It also expressed the view that further extensions were lawful within the meaning of Article 109 § 8 of the CCrP since the requests for extensions had been made within the seven-day time-limit mentioned in that provision. 19. On 5 February 2009 counsel for the applicant and the applicant himself submitted statements of appeal against the extension order of 3 February 2009. The applicant also sought leave to appear before the appeal court. Counsel pointed out that on 3 February 2009 the City Court had already granted a fourth extension in excess of the maximum eighteenmonth detention period, which was incompatible with the requirements of Article 109 §§ 7 and 8 of the CCrP. By decision of 26 March 2009, the Supreme Court refused the applicant leave to appear, noting that his presence was not necessary because all the arguments were explained in sufficient detail in his counsel's submissions. In the same hearing, the Supreme Court rejected the appeals against the extension orders, holding that counsel had “incorrectly interpreted” the provisions of Article 109. 20. On 28 April 2009 the St Petersburg City Court extended the authorised period of the applicant's detention until 20 May 2009 for the purpose of allowing the prosecution sufficient time for complying with the legal requirement that a case be submitted for trial no later than fourteen days before the expiry of the detention period. As to the grounds for continued detention, the City Court noted that the grounds for preferring a custodial measure still obtained. 21. On 6 May 2009 the case against the applicant and other codefendants was referred for trial. On 14 May 2009 the City Court held a preliminary hearing, in the absence of the applicant and his counsel, and indicated that the custodial measure “should remain unchanged”. It did not set a time-limit for the measure or list any grounds for continuing its application. 22. On 28 May 2009 the City Court issued a decision by which it extended the detention period in respect of the applicant and six other co-defendants for a further six months. It referred to the gravity of the charges against them. 23. On 10 August 2009 the Supreme Court examined the appeals submitted by the applicant's counsel against the extension orders of 6 and 28 May 2009 and rejected them. Counsel and the applicant did not take part in the hearing. 24. On 5 November 2009 the City Court extended the period of detention in respect of all defendants for a further three months, noting the gravity of the charges and continuing examination of evidence. 25. On 6 April 2010 the St Petersburg City Court convicted the applicant and his co-defendants of various violent crimes committed for racial motives. The applicant was sentenced to three years and six months' imprisonment but relieved from serving the sentence owing to the expiry of the prescription period. The applicant was released from custody on the same day. He did not file an appeal, but two of his co-defendants did. On 21 October 2010 the Supreme Court upheld the judgment on appeal. 26. Before 24 November 2007, while the applicant was legally a minor, he was held in a special wing of remand prison no. IZ-47/1 of St Petersburg, popularly known as “Kresty”, and in remand prison no. IZ-47/2 of Tikhvin in the Leningrad Region. The applicant raised no complaints in respect of that period of detention. 27. After 24 November 2007, when he reached legal majority, the applicant was held together with adult detainees in various cells of remand prison no. IZ-47/1. 28. The Government produced, among other documents, two statements of 27 July 2009 from the director of remand prison no. IZ-47/1, according to which all the cells in which the applicant had been detained, had measured eight square metres and accommodated no more than three detainees, including the applicant. They also submitted disparate sheets from a certain register concerning transfers of detainees, all of which referred to a period prior to 24 November 2007. 29. According to the applicant, the cells measured eight square metres and were equipped with two three-tier bunk beds. The actual number of inmates ranged from four to six, including the applicant himself. The mandatory ventilation did not function and the toilet was not separated from the living area. Inmates used bed sheets to create a makeshift screen around it but warders considered it to be a violation of prison regulations and tore them down. 30. On 1 December 2008 the applicant complained about the conditions of detention to a supervising prosecutor. On 12 February 2009 the St Petersburg prosecutor sent a reply to his complaint, in which he acknowledged, in particular, that the personal space afforded to inmates in cell no. 47 was below the legal norm of four sq. m per person. On 20 February 2009 the prosecutor ordered the director of the remand prison to remedy a violation of the law and discipline those responsible. 31. According to the Government, on 31 March, 30 June and 30 July 2009 the St Petersburg prosecutor issued further warnings to the director of the remand prison, requiring him to improve the material conditions of the inmates' detention and bring them up to the applicable standards. 32. In August 2009 the applicant was transferred to a new cell of the same size which he shared with one detainee until he was released on 6 April 2010. 33. Pursuant to Article 109 § 1, the initial pre-trial detention of an accused must not exceed two months. It may be subsequently extended up to six months. 34. Further extensions to up to twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator's request for extension must be approved by the regional prosecutor (§ 2). 35. An extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences, upon an investigator's request approved by the Prosecutor General or his deputy (§ 3). 36. Extension of detention beyond eighteen months is prohibited and the detainee must be immediately released, unless the prosecution's request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (§ 4). 37. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (§ 5). 38. If access was granted on a later date, the detainee must be released after the expiry of the maximum period of detention (§ 6). 39. If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period (§ 7). 40. Within five days of receipt of the request for an extension, the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (§ 8). 41. Examining the compatibility of Article 97 of the RSFSR CCrP (now replaced by Article 109 of the CCrP) with the Constitution, on 13 June 1996 the Constitutional Court ruled as follows: “... affording the defendant a sufficient time for studying the file must not result in ... his detention for a period of an unlimited duration. In that case such detention would amount to a sanction for using by the defendant of his procedural rights and thereby induce him to waive these rights ...” 42. On 25 December 1998 the Constitutional Court issued a further clarification of its position (decision no. 167-O), finding as follows: “3. ... the studying of the file [by the defendant and his counsel] is a necessary condition for extending the term of detention [beyond eighteen months] but it may not be, taken on its own, a sufficient ground for granting such an extension... For that reason, in each particular case the prosecutor's application for extending the period of detention beyond eighteen months (Article 97 §§ 4, 6 of the RSFSR CCrP) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure cannot be revoked and the legal grounds for its continued application remain ... 6. ... Article 97 § 5 of the RSFSR CCrP expressly provides that, on an application by a prosecutor, the judge may extend the defendant's detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [trial] court, but by no longer than six months. Accordingly, the law does not provide for lodging of repeated applications for extension of the defendant's detention, even after an additional investigation [has been carried out] ... In the absence of an express legal provision for repeated extensions of detention on that ground, any other interpretation of [Article 97] would breach the prohibition on arbitrary detention within the meaning of the Constitutional Court's decision of 13 June 1996.” 43. By decision no. 352-O of 11 July 2006, the Constitutional Court confirmed its position, by reference to above-cited decision no. 167-O, that in the absence of an express provision to that effect, time-limits during the pre-trial investigation may not be repeatedly extended, particularly on the same grounds, in excess of the maximum time-limit set out in the CCrP. 44. In decision no. 271-O-O of 19 March 2009, the Constitutional Court expressed the view that Article 109 § 8 (1) of the CCrP was compatible with the Constitution. Even though this provision did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant committed the offence but mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending.
| 1
|
train
|
001-4507
|
ENG
|
SWE
|
ADMISSIBILITY
| 1,999
|
OULD BARAR v. SWEDEN
| 3
|
Inadmissible
|
Josep Casadevall
|
The applicant, born in 1974, is a citizen of Mauritania. Before the Court he is represented by Mr Peter Bergquist, a lawyer practising in Tyresö, Sweden. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden on 28 or 29 July 1997, holding a tourist visa valid until 26 August 1997. On 6 October 1997 he applied for asylum with the National Immigration Board (Statens invandrarverk), claiming that he had left his country to escape slavery. The Immigration Board held a hearing with the applicant and his lawyer in November 1997. In written submissions and at the hearing, the applicant supplied the following information. His father, who is a slave belonging to a certain clan, and his mother, who is not a slave, are divorced. He grew up with his mother in the capital Nouakchott, went to school and later sold clothes in his own shop. His father has a privileged position with his master in the city of Kiffa and has achieved that his children, though being slaves, do not have to work as such. The applicant has to visit his father’s master - who also owns the applicant - once a year. On these occasions, the applicant has to perform some minor tasks, inter alia serving tea and going to fetch people. He has never been personally threatened by the authorities, the clan or his owner and has not been politically active against the system of slavery, as there are too many Government spies and he would be at great risk if he engaged in such activities. He obtained his passport by bribing a police officer. After his arrival in Sweden, he tore up the passport and other travel documents, as he was afraid of having to return to Mauritania. The visa to Sweden was obtained through the assistance of his uncle who is the SecretaryGeneral for the Association of National Olympic Committees of Africa. He did not apply for asylum immediately, believing that it did not matter when he applied. The applicant further stated that, if expelled to Mauritania, he would be returned to his father’s master who might be angry with him as he has run away and who may punish him according to the master’s own laws. The Mauritanian authorities would not be able to – or would not want to – afford him protection. He also fears reprisals from his clan and the State, which supports the system of slavery in the country. Thus, he would be exposed to the risk of being tortured or killed upon return. By a decision of 28 January 1998 the Immigration Board rejected the applicant’s request and ordered his deportation. The Board did not contest that slavery still existed in parts of Mauritania. However, it called into question the applicant’s credibility, noting that he had disposed of his passport after his arrival in Sweden and that he had waited a long time before applying for asylum. It also took into account that he had never before expressed his opinions on slavery and that he had never been threatened. Furthermore, the Board found that it had not been shown that the applicant risked being punished for not visiting his father’s master. Finally, the Board considered that the general conditions prevailing in Mauritania did not constitute a reason for granting the applicant a residence permit on humanitarian grounds. The applicant’s appeal was rejected by the Aliens Appeals Board (Utlänningsnämnden) on 5 June 1998. The Appeals Board shared the opinion of the Immigration Board and stated, in particular, that the applicant himself had not been held in slavery prior to his leaving Mauritania but had been able to study for twelve years and later had supported himself by selling clothes in his own shop. After the Commission had indicated to the respondent Government that it was desirable that the applicant would not be deported to Mauritania until the Commission had had an opportunity to examine the present application, the National Immigration Board, by decision of 24 July 1998, stayed the execution of the deportation order against the applicant.
| 0
|
train
|
001-78898
|
ENG
|
SVK
|
CHAMBER
| 2,007
|
CASE OF OREL v. SLOVAKIA
| 4
|
Violation of Art. 6-1
|
Nicolas Bratza
|
4. The applicant was born in 1953 and lives in Slovenská Nová Ves. 5. On 16 November 1993 the applicant challenged the lawfulness of his dismissal from a job and withdrawal of a part of his pay by the employer. 6. On 3 February 1994 the Bratislava I District Court invited the applicant to pay the court fee. On 6 April 1994 the defendant foundation submitted comments on the applicant’s action. 7. As the parties did not attend the hearing scheduled for 7 June 1994, the court adjourned the case until 18 October 1994. Subsequently the applicant appeared before the court and he requested that an interim measure be issued. 8. On 31 August 1994 the Bratislava I District Court discontinued the proceedings concerning the interim measure on the ground that the applicant had failed to substantiate his request. 9. On 9 September 1994 the court invited the applicant to specify the amount which he claimed. The applicant replied on 9 November 1994. 10. On 18 October 1994 the case was adjourned as the parties were absent. 11. On 21 October 1994 the court asked the defendant for information about the applicant’s pay. The mail was returned to the court as being undeliverable. 12. On 1 December 1994 the case was again adjourned, due to the absence of the defendant. The post had returned the summons to the District Court. As the post had informed the court that the defendant foundation had moved, on 4 January 1995 the court asked two authorities for information about the new seat of the defendant. On 3 February 1995 the court was informed of the defendant’s new address. 13. The case was adjourned on 19 January 1995 and on 16 February 1995 as a representative of the defendant foundation had not appeared. The summons had been returned to the court. The representative of the defendant appeared before the District Court on 13 April 1995. He informed the court of his and the foundation’s new address. The applicant did not appear at that hearing. The court informed the representative of the defendant that a fine would be imposed on him if he failed to appear at the next hearing scheduled for 30 May 1995. 14. Hearings were held on 30 May 1995 and on 12 September 1995 in the presence of both parties. On 7 November 1995 the case had to be adjourned as the defendant was absent. 15. The applicant and a witness were unable to attend the hearing held on 30 January 1996. On the same day the defendant challenged the District Court judge dealing with the case. On 29 February 1996 the Bratislava City Court dismissed the request. 16. The defendant failed to appear before the District Court on 11 and 23 July 1996. As the mail sent by the court to both the defendant foundation and its representative could not be delivered, the court made inquiries with a view to establishing the defendant’s address. The three authorities concerned submitted their replies on 16 August 1996, on 11 September 1996 and on 5 November 1996. 17. The District Court sent letters to the representative of the defendant foundation in February and in May 1997. All three letters were returned with the indication that the addressee was not at the address indicated in the letters. 18. On 15 August 1997 the central register informed the District Court that the representative of the defendant foundation had registered his permanent stay at the address where the court had tried to reach him earlier and which the Ministry of the Interior had indicated to the court on 5 November 1996. 19. On 21 November 1997 the court asked the Bratislava III District Office for a copy of the registration file of the defendant foundation. In a letter dated 28 November 1997 which arrived at the District Court on 2 December 1997 the above administrative authority informed the court that the foundation had not requested a change in registration of the address of its seat. The letter stated that the representative had informed the District Office, on 3 September 1997, that the defendant foundation was in liquidation. 20. On 21 May 1998 the District Court asked the Bratislava III District Office for the registration file of the defendant foundation. The file was submitted to it on 9 June 1998. The letter stated that the administrative authority had already sent to the court the requested documents on 28 November 1997. 21. On 22 July 1998 the court appointed a guardian to represent the defendant foundation in the proceedings as it had been impossible to establish the new address of its seat. 22. In a letter dated 10 July 1998 the representative of the defendant foundation informed the court that he would not submit the requested information and documents as he considered that the applicant’s right to claim the sum in issue had lapsed. A new address of the defendant foundation was indicated in the header of the letter. 23. The case was adjourned on 7 September 1998 due to the absence of the parties. Both the applicant and his representative had excused their absence. The court imposed a fine of 1,200 Slovak korunas on the representative of the defendant foundation for his failure to appear. On 15 October 1998 the case was again adjourned because of the absence of the defendant. 24. On 17 November 1998 the Bratislava I District Court decided, in the absence of the defendant’s representative, that the applicant’s dismissal had been unlawful as the relevant notice had not been in conformity with the statutory requirements. It ordered the defendant to pay 608,500 Slovak korunas (SKK) to the applicant in compensation for loss of salary. It discontinued the proceedings in respect of the remainder of the applicant’s action as the applicant had withdrawn the corresponding claims. The judgment was served on the representative of the defendant on 30 April 1999. The liquidator of the defendant filed an appeal on 17 May 1999 indicating that the defendant foundation had ceased to exist by 1 November 1998. 25. On 28 May 1999 the defendant was invited to eliminate shortcomings in the appeal within ten days. The letter was returned as undeliverable on 23 June 1999. A further request was delivered to the representative of the defendant on 30 July 1999. He submitted no reply. On 10 September 1999 the file was submitted to the court of appeal. 26. On 25 February 2000 the Bratislava Regional Court adjourned the case because of the defendant’s absence. On 3 April 2000 the court received information, at its request, concerning the status of the defendant foundation. 27. On 5 May 2000 the Regional Court set a ten day time-limit for submission of the reasons for the defendant’s appeal. 28. On 31 May 2000 the Bratislava Regional Court discontinued the appeal proceedings on the ground that the defendant had failed, despite several warnings, to submit reasons for the appeal. The decision on the applicant’s action became final on 18 July 2000. 29. On 27 September 2002 the applicant requested the Bratislava I District Court that the sum which his former employer owed him should be enforced by selling his former employer’s movable property. 30. On 23 May 2000 the Bratislava I District Office decided to stop paying a social allowance to the applicant with effect from 1 June 2000. On 12 June 2000 the applicant appealed. 31. On 22 June 2000 the Bratislava Regional Office upheld the decision of 23 May 2000. 32. On 17 July 2000 the applicant challenged the administrative decisions before the Bratislava I District Court. He also filed a request for an interim measure to be issued. 33. On 15 December 2000 the District Court dismissed the applicant’s request for an interim measure. On 30 April 2001 the Bratislava Regional Court dismissed the applicant’s appeal against this decision. 34. On 20 February 2001 the Bratislava I District Court found that it lacked jurisdiction to deal with the applicant’s action concerning the above administrative decisions. The case was transmitted to the Bratislava Regional Court. 35. On 18 June 2001 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing without undue delay in the proceedings concerning his action of 17 July 2000. The Constitutional Court noted that the District Court had started considering the action nearly five months after it had been lodged, and that no procedural steps had been taken as the case fell within the jurisdiction of a different court. 36. On 21 March 2002 the Bratislava Regional Court quashed the administrative decisions challenged by the applicant. 37. On 26 September 2002 the Bratislava I District Office granted the advance payment of the allowance in issue to the applicant for the period from 1 June 2000 to 31 August 2002. 38. On 22 September 1993 the applicant’s former wife filed an action claiming that she had the exclusive right to use a flat in which she and the applicant had lived. 39. Several procedural decisions were given in the case and the Bratislava I District Court, to which the merits of the case fell to be examined, held a number of hearings. In the course of the proceedings the applicant filed a counter-claim. 40. The applicant sought an injunction giving him the right to use the flat. The request for an injunction was dismissed by a final decision which was given by the District Court on 3 June 1999. 41. On 15 May 2002 the District Court dismissed both parties’ claims. It held that the applicant and his former wife no longer lived in the flat. The applicant had waived his right to use the flat in that he had stopped living in a common household with his former wife in 1992. 42. On 15 October 2003 the Regional Court upheld the first-instance judgment which became final on 20 January 2004. 43. On 28 January 2005 the Constitutional Court rejected the applicant’s complaint about inactivity of the District Court as regards his above request for an injunction. The Constitutional Court referred to the ordinary courts’ findings in the proceedings concerning the use of the flat in issue. It held, inter alia, that the applicant had sought an injunction giving him the right to use a flat which, as it had been established, he had left in 1992 and in respect of which he had no legal title. 44. On 5 August 1996 the applicant claimed distribution of his and his former wife’s marital property. 45. The merits of the case have been examined by the Bratislava II District Court which held a number of hearings and took extensive evidence. The proceedings are pending. 46. On 27 August 1991 the applicant claimed damages before the Bratislava I District Court. The applicant alleged that the defendant had not repaired his car properly and claimed SKK 11,000 in compensation. The case was transferred to the Bratislava V District Court. That court held several hearings in 1991. On 8 August 1994 the court ordered an expert to submit an opinion. The opinion was submitted on 19 October 1994. 47. The court scheduled four hearings between 20 December 1996 and 14 March 1997. On the latter date the Bratislava V District Court ordered the defendant to pay the sum claimed to the applicant with default interest. The defendant refused receipt of mail and the District Court’s decision was served on him only on 20 October 1997. 48. On 22 July 1998 the applicant sought the enforcement of the sum in question. 49. On 6 August 1998 the Bratislava V District Court authorised an executions officer to enforce the sum. On 19 August 1998 the executions officer issued a notification of the execution. It was served on the applicant on 1 June 1999 and on the debtor on 26 May 1999. 50. On 24 June 1999 and on 20 July 1999 the executions officer issued two execution orders with a view to obtaining the sum owed by the defendant through the sale of his movable property and the withdrawal of a part of his income. On 8 July 1999 the executions officer, with the assistance of the police, established an inventory of the movable property of the debtor. The movables were not taken away as their value was low and since the debtor’s wife had promised to pay the sum in issue. Subsequently the executions officer unsuccessfully attempted to contact the debtor and his wife. 51. In a statement of 12 October 2006 the executions officer explained that it had not been shown that the debtor owned any property or that he had any income. For that reason the judgment had not been executed. 52. The execution proceedings are pending. 53. The relevant provisions of the Constitution as well as the practice of the Constitutional Court are described in detail in, for example, Jakub v. Slovakia, no. 2015/02, §§ 25-38, 28 February 2006 or Savka v. Slovakia, no. 77936/01, 30 May 2006).
| 1
|
train
|
001-75631
|
ENG
|
RUS
|
CHAMBER
| 2,006
|
CASE OF GRIDIN v. RUSSIA
| 4
|
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1961 and lives in Aleksin in the Tula Region. 5. On 11 October 2001 the Sovetskiy District Court of Tula granted the applicant’s claim against the Tula Regional Department of the Federal Employment Service and awarded him RUR 5,294.69 (EUR 197). On 16 April 2002 the Tula Regional Court upheld the judgment on appeal. 6. On 23 May 2002 the Sovetskiy District Court altered the judgment, indicating that the award was payable by the Ministry of Finance at the expense of the Treasury. 7. On 12 February 2003 the Tula Regional Department of the Ministry of Finance applied for supervisory review of the judgment. On 31 August 2004 the Tula Regional Court refused their application. 8. On 3 December 2004 the Treasury paid the amount outstanding to the applicant’s bank account.
| 1
|
train
|
001-71541
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,005
|
SOLOSHENKO v. UKRAINE
| 4
|
Inadmissible
| null |
The applicant, Mr Pavlo Volodymyrovych Soloshenko, is a Ukrainian national who was born in 1958 and lives in the town of Bogodukhiv, the Kharkiv region, Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. In October 2002 the applicant instituted proceedings in the Bogodukhiv City Court against the Kharkiv Regional Department of Chernobyl Affairs, seeking recovery of food allowance arrears (an extraordinary compensation for food expenses) for the period from 1 December 2001 until 31 December 2002, to which he was entitled having been a relief worker during the 1986 Chernobyl Nuclear Plant disaster. On 4 February 2003 the court ordered the department to pay the applicant UAH 921.84 in compensation. On 25 March 2003 the court issued a writ of execution for the judgment. On 5 May 2003 the same court granted the department an extension of the time-limit for lodging its appeal against the judgment. The applicant did not appeal against that decision. On 24 June 2003 the Kharkiv Regional Court of Appeal upheld the judgment of 4 February 2003. The decision of 24 June 2003 was not appealed in cassation. On 17 July 2003 the applicant submitted to the Dzerzhynsk Local Bailiffs’ Service of Kharkiv the writ of execution for the judgement of 4 February 2003, seeking initiation of the enforcement proceedings. On 18 July 2003 the Bailiffs’ Service postponed initiation of those proceedings on the ground that the writ of execution did not contain information about the debtor’s bank accounts. It sent the writ to the Bogodukhiv City Court for corrections to be made by 28 July 2003. According to the Government, the Bogodukhiv City Court issued another writ in respect of the judgment at issue on 1 December 2003. On 9 February 2004 the Bailiffs’ Service instituted enforcement proceedings. On 18 October 2004 the Bailiffs’ Service discontinued the enforcement proceedings in the light of the full execution of the judgment of 4 February 2003.
| 0
|
train
|
001-57438
|
ENG
|
NLD
|
CHAMBER
| 1,988
|
CASE OF BERREHAB v. THE NETHERLANDS
| 2
|
Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award
|
C. Russo
|
7. Mr. Berrehab, a Moroccan citizen born in Morocco in 1952, was permanently resident in Amsterdam at the time when he applied to the Commission. His daughter Rebecca, who was born in Amsterdam on 22 August 1979, has Netherlands nationality. She is represented by her guardian, viz. her mother, Mrs. Koster, who is likewise a Netherlands national. 8. After marrying Mrs. Koster on 7 October 1977, Mr. Berrehab sought permission to stay in the Netherlands where he had been for some time already. The Ministry of Justice granted him permission on 25 January 1978 "for the sole purpose of enabling him to live with his Dutch wife", and then renewed it until 8 December 1979. From November 1977 Mr. Berrehab worked for a self-service shop. On 9 March 1978, a work permit was issued to him under the Aliens (Work Permits) Act 1964 (replaced since 1 November 1979 by the Employment of Aliens Act). This permit was renewed on 18 October 1979. From April 1981 to April 1983 Mr. Berrehab was employed by a cleaning firm. 9. On 8 February 1979, his wife sued for divorce. The Amsterdam Regional Court (Arrondissementsrechtbank) granted the divorce on 9 May 1979 on the ground of the irretrievable breakdown of the marriage, which was dissolved by registration of the decision in the Civil Registry of Amsterdam on 15 August 1979. By an order of 26 November 1979, the Amsterdam Regional Court appointed Mrs. Koster guardian of her daughter, Rebecca, who had been born in the meantime, and appointed the girl’s father as an auxiliary guardian (toeziende voogd). On 5 February 1980, it ordered the latter to pay the Child Welfare Council 140 guilders a month as a contribution to the cost of maintaining and educating his daughter. When Rebecca was born, her father and Mrs. Koster agreed to ensure that the child had frequent, regular contacts with her father. On 27 February 1984, they had a notary legalise an agreement between them as to arrangements for these contacts and certify that over the previous two years Mr. Berrehab had seen his daughter four times a week for several hours each time. 10. On 7 December 1979, Mr. Berrehab made an application for renewal of his residence permit. The head of the Amsterdam police refused the application on the same day, stating that it would be contrary to the public interest to renew the permit, regard being had to the fact that Mr. Berrehab had been allowed to remain in the Netherlands for the sole purpose of living with his Dutch wife, which condition was no longer fulfilled on account of the divorce. By letter of 26 December 1979, Mr. Berrehab asked the Minister of Justice to review this decision. He pointed out among other things that he needed an "independent" residence permit in order to fulfil his moral and legal obligations as a father. He said he had sufficient means of subsistence and that he was in a position to bear part of the costs of Rebecca’s upbringing and education. 11. The Minister did not reply within the statutory period of three months, which under Netherlands law constituted an implied rejection of the request. Mr. Berrehab consequently appealed, on 23 April 1980, to the Litigation Division (Afdeling Rechtspraak) of the Raad van State. He stated that he could not see how the grant to him of a residence permit could be prejudicial to the national interest, particularly since he was under various legal obligations as a father and he had been able to support himself since 1977 by working. At the hearing on 14 March 1983, he claimed that the impugned decision infringed Article 8 § 1 (art. 8-1) of the Convention on the ground that it prevented him from remaining in contact with his daughter whom he saw regularly four times a week. The Raad van State dismissed his appeal on 9 May 1983. It recalled in the first place that, under section 11(5) of the Aliens Act of 13 January 1965 (Vreemdelingenwet - "the 1965 Act"), renewal of a residence permit could be refused in the public interest. As the Minister of State for Justice had pointed out, Mr. Berrehab no longer satisfied the condition upon which the grant of his residence permit depended; consequently, the refusal appealed against could be justified under section 11(5). As for Mr. Berrehab’s obligations to his daughter, the Raad van State held that the fulfilment thereof did not serve any vital national interest and that those obligations subsisted independently of his place of residence. It added that four meetings a week were not sufficient to constitute family life within the meaning of Article 8 (art. 8) of the Convention and that the impugned decision would, moreover, not necessarily entail a break in relations between the child and her father, as the latter could remain in contact with his daughter by agreement with his ex-wife. 12. On 30 March 1983, Mr. Berrehab was dismissed by his employer with effect from 15 April. He was, furthermore, arrested on 28 December 1983 for the purpose of his deportation. He made an urgent application (kort geding) to the presiding judge of the Amsterdam Regional Court, but withdrew it shortly after the execution of the impugned deportation order on 5 January 1984; on 18 January, the presiding judge accordingly held that there was no ground on which to give a decision. In 1984, Rebecca and her mother spent two months with Mr. Berrehab and his family in Morocco. On 28 August 1984, Mr. Berrehab applied to the Netherlands Embassy in Rabat for a three-month residence permit. After an initial refusal he obtained a visa valid for one month, for the purpose of enabling him to exercise his rights of access. Accordingly, he went to the Netherlands on 27 May 1985 where he requested an extension of his visa until the following 27 August. His request having been turned down on 6 June, he lodged an appeal with the Raad van State, accompanied by an urgent application. Hearing the latter application, the President of the Litigation Division decided, on 20 June, that the applicant should be treated - subject to a condition which is not relevant to this judgment - as if he had been granted a visa valid until 27 August. 13. On 14 August 1985, Mr. Berrehab remarried Mrs. Koster in Amsterdam. On 9 December 1985, the Ministry of Justice granted him permission (which he had sought on 29 August) to reside in the Netherlands "for the purpose of living with his Dutch wife and working during that time". 14. The Netherlands authorities pursue a restrictive immigration policy. The authorities, however, permit exceptions prompted, inter alia, by the wish to honour the obligations flowing from the Convention, by the country’s economic well-being and by humanitarian considerations, including the reuniting of families. The entry requirements and the grounds on which aliens may be expelled are laid down primarily in the 1965 Act and its implementing regulations. In addition to these legal provisions, there is the "Circular on Aliens" (Vreemdelingencirculaire), which is a body of directives drawn up and published by the Ministry of Justice. The right to stay is therefore governed in principle by sections 8-11 of the Act. A prolonged stay requires the authorisation of the Minister of Justice or a body acting under his control. A refusal to grant an authorisation must be accompanied by a statement of the reasons on which it is based. An appeal lies to the Minister of Justice and then, if need be, to the Raad van State. An application is usually granted - normally for one year - only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds. Foreigners married to a Netherlands national fall into the latter category; they may obtain a residence permit "in order to live with their spouse" in the Netherlands and, if appropriate, "in order to work there during that time". 15. This policy, however, has changed over the years. Foreigners coming to live with their husbands or their wives were initially granted resident status and a conditional residence permit. That status was forfeited if the marriage in respect of which it was granted was dissolved, in which case the foreigner had to leave the country. In order to enhance the position of foreigners lawfully established in the Netherlands, the Minister of State for Justice felt it necessary to soften the line followed in this respect. Under the terms of the "Vreemdelingencirculaire" (Chapter B 19, paragraph 4.3), foreigners who had been married for more than three years and had lived with their spouses in the Netherlands for at least three years prior to the dissolution of their marriage were enabled to apply for an "independent" residence permit; the underlying idea was that after that length of time they would have forged sufficient links with the country for it to be unnecessary to make their status subject to conditions. It was subsequently thought advisable to make further changes in the regulations in favour of this category of foreigner. The requirement of three years’ marriage was retained but the requisite period of residence was reduced to one year. The purpose of this relaxation was to improve the often precarious position of divorced women, particularly those of Mediterranean origin; it was felt that they ought to be permitted to stay in the Netherlands with a status independent of that of their former husbands. This policy was later refined still further, when it was decided that even where the aforementioned conditions were not met, overriding humanitarian considerations might justify the grant to a foreigner of authorisation to remain on Netherlands territory on an independent residence permit, for example if he had close links with the Netherlands or with a person resident there. According to the Government, this was an exceptional measure that was rarely applied. 16. As far as the Netherlands case-law on aliens is concerned, a distinction must be drawn between the courts hearing urgent applications - the civil courts up to and including the Court of Cassation at last instance - and the court conducting a full examination of the merits of the case, namely the Litigation Division of the Raad van State. While the Court of Cassation in its decisions in other fields, such as the right of access, had already favoured a fairly broad conception of "family life" (see in particular the leading case decided on 22 February 1985, in Nederlandse Jurisprudentie, 1986, no. 3), the Litigation Division of the Raad van State had tended to take a narrower view. Its decision in the instant case is fully in line with that tradition. Several of its most recent decisions, however, suggest that it is going to adopt the principle laid down in a Court of Cassation judgment of 12 December 1986 concerning aliens, from which it emerges that cohabitation is not a sine qua non of "family life" for the purposes of Article 8 (art. 8) of the Convention (Nederlandse Jurisprudentie, 1988, no. 188). The Court of Cassation recently had before it a case similar to the present one. A court of appeal, hearing an urgent application, had held that where a foreigner threatened with expulsion pleads the right to respect for his own and his child’s family life, the onus is on him to show that the minor’s interest is sufficiently important to outweigh the State’s interest. On appeal, the Court of Cassation quashed the decision on 18 December 1987 (Rechtspraak van de Week, 1988, no. 9). It fell to be decided whether "family life" existed between the alien and his child, and the Court of Cassation began by emphasising that the child was a legitimate one. It went on: "For the duration of the marriage, there existed between Garti and his son a relationship that amounted to family life within the meaning of Article 8 (art. 8) of the ... Convention .... Neither the cessation of cohabitation nor the divorce ended that relationship. It must also be noted that, as Garti claimed and as the Court of Appeal apparently regarded as having been established, Garti and his son remained in close touch after the cessation of cohabitation." The decision was quashed on the ground, inter alia, that the appeal court had lost sight of the fact that: "if, in such a case, the expulsion of a foreigner must be regarded as an interference with his right to respect for family life within the meaning of Article 8 (art. 8) ..., the sole means of determining whether that interference is justified or may be justified is to weigh, in the light of the facts of the case and the policy directives (beleidsregels) in force, the seriousness of the interference with the right of the foreigner concerned and his minor child to respect for their family life against the interests served by those policy directives, and in so doing one may, in order to assess the seriousness of the interference, have regard notably to the length of time during which those concerned have lived together, to the nature and degree of intensity of the contacts maintained after cohabitation came to an end and to whether it is the parent or the child who is threatened with expulsion".
| 1
|
train
|
001-91848
|
ENG
|
GRC
|
GRANDCHAMBER
| 2,009
|
CASE OF GOROU v. GREECE (No. 2)
| 2
|
Preliminary objections dismissed (ratione materiae);No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award
|
Alvina Gyulumyan;András Sajó;Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Loukis Loucaides;Mark Villiger;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky;Volodymyr Butkevych;Zdravka Kalaydjieva
|
10. The applicant is a civil servant in the Ministry of National Education. At the relevant time she was on secondment to the Bureau for the primary education of Greek children abroad, in the city of Stuttgart. On 2 June 1998 she filed a criminal complaint for perjury and defamation against S.M., with an application to join the proceedings as a civil party, but without claiming compensation. S.M., a civil servant in the same Ministry, was the applicant's immediate superior. She alleged in particular that, in connection with an administrative investigation opened against her, S.M. had stated that she did not observe working hours and did not get on well with her colleagues. 11. On 26 September 2001, when the case was heard before the Athens Criminal Court, the applicant reiterated her civil-party application, claiming 1,000 drachmas (about 3 euros) and adduced her arguments. On the same day, the Athens Criminal Court acquitted S.M. of the charges against him, finding that the applicant's allegations were unsubstantiated. In particular, after examining all the evidence, the court considered that the offending remarks had been truthful and that it had not been the defendant's intention to defame or insult the applicant (judgment no. 74941/2001). 12. On 5 August 2002 this judgment was finalised and entered in the register of the Criminal Court. 13. On 24 September 2002 the applicant requested the public prosecutor at the Court of Cassation to lodge an appeal on points of law against the Athens Criminal Court's judgment no. 74941/2001, under Article 506 § 2 of the Code of Criminal Procedure. She alleged, in particular, that the judgment did not contain sufficient reasoning. 14. On 27 September 2002 the public prosecutor at the Court of Cassation returned the applicant's letter with the following handwritten comment on the actual request: “There are no legal or well-founded grounds of appeal to the Court of Cassation”. 15. The Code of Criminal Procedure contains the following relevant provisions: “(1) The present Code specifies the instances in which a judge gives a decision or makes an order. Orders shall also be made by the public prosecutor where he has a statutory obligation to take measures during a judicial investigation in a case or when hearings have been adjourned by the court ...” “Judgments, orders of the chamber of judges, and orders of the investigating judge or of the public prosecutor shall give specific and precise reasons ... ... Even where it is not required by a specific provision, all judgments and orders shall include reasoning, whether they are final or interlocutory and whether or not they depend on the discretion of the judge hearing the case.” “Remedies may be used solely by persons who are expressly afforded such right by law ...” “(1) ... an appeal on points of law may be lodged (a) by the defendant; (b) by a third party whose civil liability has been engaged in the conviction judgment and who has acknowledged such liability; (c) by a civil party named in the conviction judgment, but only in respect of that part of the judgment in which he or she is awarded damages or is recognised as being entitled to compensation, or in which his or her claims have been dismissed as being devoid of legal basis; (d) by the public prosecutor. The Principal Public Prosecutor at the Court of Cassation shall be entitled to appeal on points of law against any decision within the time-limit provided for in Article 479 § 2 ...” “The quashing of an acquittal on points of law may be sought: (a) by the defendant, if he or she has been acquitted for expressing remorse; (b) by the principal public prosecutor ... if the acquittal has been the consequence of a misinterpretation of a substantive criminal-law provision within the meaning of Article 510 of the Code of Criminal Procedure; (c) by the person who laid the charge or the complainant, if he or she has been ordered to pay damages and costs.” “(1) ... The Public Prosecutor at the Court of Cassation shall summon the appellant in cassation and other parties to the proceedings, by a summons served on them in accordance with Articles 155 to 161 and within the time-limit provided for in Article 166, before the Court of Cassation or its plenary assembly ... (2) Where the appeal on points of law has been lodged by a public prosecutor, he shall not be summoned but shall be represented by the public prosecutor at the Court of Cassation. ...”
| 1
|
train
|
001-84334
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF ZUBAYRAYEV v. RUSSIA
| 3
|
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens
|
6. The applicant was born in 1967 and lives in Nice, France. Before 1999 the applicant was a resident of the village of Starye Atagi in Chechnya. He also submitted the complaint on behalf of his close relatives: his mother, Malika Zubayrayeva, brother Khasan (also spelled Khasin) and sisters Aset and Petimat Zubayrayeva, who are not applicants in the present case. 7. The facts of the case were partly disputed by the parties. Accordingly, the Court requested the Government to submit copies of the criminal investigation file. The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the Government is set out in Part B below. 8. In October 1999 the applicant applied for asylum in Belgium. He said that he had served in the national security service of the self-proclaimed “Chechen Republic of Ichkeria”. 9. The applicant’s parents, brothers and sisters remained in Chechnya. His family lived in their house at 103 Nagornaya Street in the village of Starye Atagi. 10. The applicant’s mother, Malika Zubayrayeva, testified that in the early hours of 17 September 2000 the family had been woken by loud screams. A large group of men in camouflage uniforms and, in some instances, masks, whom she identified as belonging to the Russian special services (“spetsnaz”), entered the house and forced all the inhabitants outside. They were not allowed to get dressed and no reasons were given for their intervention. According to her, the intruders wore insignia of the Russian army and spoke Russian without an accent. 11. According to the applicant, the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected. The servicemen read out the names in the passports one by one. One of the applicant’s brothers, Magomed, was not at home that night and the men asked about his whereabouts. The applicant’s father Salaudi (also spelled Salavdi) Zubayrayev replied that he was not at home. The intruders hit the applicant’s other brother, Khasan Zubayrayev (born in 1977), with a rifle butt on the head and led the applicant’s father away. They then forced the women into one of the rooms. In the meantime others opened all the rooms in the house and searched them. They collected valuables and family photographs. 12. Once the armed men had left, the women went outside and found Khasan in the courtyard. The body of the applicant’s father was found about 100- 200 metres from the house. He had been shot in the back of the head with an automatic rifle. 13. On the same night and in similar circumstances four other persons were killed in Starye Atagi: Musa Abubakarov (aged about 70), Zaur Demilkhanov (who was born in 1982), Vakha Elmurzayev (aged about 70) and Isa Elmurzayev (aged about 30). 14. The applicant submitted that on 18 September 2000 the Russian television news had announced that several persons, including the applicant’s father, had been killed the previous night in Starye Atagi by religious extremists – the “wahhabists”. 15. The Government submitted that in the early hours of 17 September 2000 a group of unidentified persons armed with automatic weapons had entered the village of Starye Atagi and murdered five men, all of whom had been shot with automatic weapons. The Government stressed that all the persons killed had been loyal to the federal authorities, and openly expressed their negative opinion of “wahhabists.” The Government also stressed that one of the persons killed was the son of a police officer from the Ministry of the Interior. They submitted that there was no reason to suspect that the killings had been committed by State agents. 16. The applicant submitted that on 17 September 2000 the family had been preparing for Salaudi Zubayrayev’s funeral when they learnt that there were investigators present at the crime scene. The applicant’s younger brother Khasan had gone to see them. He had taken along cartridges he had found near his father’s body – nine from a Kalashnikov 5,45 millimetre automatic rifle and three from a 9 mm Makarov pistol. 17. At the place where his father’s body had been found the applicant’s brother saw a group of servicemen surrounded by villagers. He inquired who was the most senior and gave him the cartridges. The officers stated that they had come from the Grozny District Prosecutor’s Office. The applicant’s brother had tried to explain that he was the son of the person killed and a witness of the crime, and that other members of the family were at home preparing the body for burial. As the officers did not seem to be interested in his statements, he had tried to obtain their names and ranks. In response one of the officers had rudely asked if he also wanted to know his home address in Russia. The officers had shouted at him and the other villagers, and had ordered them to disperse and made threats. They had not visited their house. None of the family members were questioned that day or later about the circumstances of the murders, nor had anyone come to their house to take pictures of the body or to collect other relevant evidence. 18. The applicant said that his father had been buried on 17 September 2000 at the village cemetery. The family members had not contacted a doctor or taken pictures of the body before the burial. Nor had they contacted any representatives of the military or investigative bodies, as they considered this to be a waste of time in view of the prosecutors’ attitude. They were never contacted by the authorities in relation to the murder. 19. The Government submitted that on 17 September 2000, immediately following the receipt of news of the murders in Starye Atagi, a group of investigators had arrived in the village and taken immediate action. They had submitted copies of documents that had been drawn up by the investigators on 17 September 2000, including descriptions of the scenes of the murders and of the bodies, including that of Salaudi Zubayrayev. The team had also collected cartridges and bullets (see paragraphs 44 and 45 below). The Government denied that the investigators had ever mistreated the relatives of the victims and noted that the case file contained no complaints from the victims or anyone else of reprehensible conduct on the part of the officers of the law-enforcement bodies. 20. On 17 September 2000 the Grozny District Prosecutor’s Office opened a criminal investigation into the murders of five men in Starye Atagi under Article 105 § 2 of the Criminal Code (the provision applicable to multiple murders). The investigation was assigned case file no. 18040. 21. On the same day the acting Grozny District prosecutor informed the prosecutor of Chechnya about the events and the action that had been taken by his office in the aftermath of the murders. His note referred to the information collected in Starye Atagi, including the examination of the scenes of the crime and of the bodies and to the cartridges and bullets that had been collected. It concluded by saying, on the basis of the statements of the local residents, that the crime had probably been committed by illegal armed groups . 22. On 17 October 2000 the Grozny District Civil Registration Office issued a death certificate for Salavdi Dzhamilovich Zubayrayev, who had been born in 1935. Death was recorded as having occurred on 17 September 2000 in Starye Atagi. 23. At the end of September 2000 the applicant wrote to the Council of Europe Commissioner for Human Rights, complaining of the murder of his father and other persons in Starye Atagi and of the absence of an investigation. In a reply dated 5 December 2000 the Commissioner for Human Rights expressed his sympathy and promised to raise the issue with the Special Envoy of the Russian President in Chechnya for Rights and Freedoms, Mr Kalamanov, at a meeting which was due to take place the same day. 24. On 17 November 2000 the investigation was adjourned because the killers could not be identified. It does not appear that anyone was granted victim status in the proceedings at that time or that information about the adjournment was communicated to the victims’ relatives. 25. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular eye-witnesses and other witnesses were to be questioned, victim status was to be granted to the relatives of those killed, information concerning the personalities of the deceased was to be collected and forensic and ballistic tests were to be carried out. 26. On 19 May 2001 the investigation was adjourned. It does not appear that any investigative activity took place between November 2001 and October 2004. 27. In September 2004 the present application was communicated to the Russian Government. 28. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order contained criticism of the investigation that had been carried out up to that point and referred to a number of basic investigative steps that needed to be taken (see paragraph 49 below). 29. In October 2004 the relatives of the five men who had been killed in Starye Atagi on 17 September 2000 were questioned and granted victim status. According to the Government, they stated that their relatives had been killed in the early hours of 17 September 2000 by unknown armed men wearing masks. They did not have any suspicions as to the identity of the killers. The Government referred to their statements, but did not submit any copies. They also referred to undated statements of other residents of Starye Atagi, who likewise did not possess any information about the identity of the killers. 30. The Government further submitted that in November 2004 a certain Rustam Z. had been charged with participating in an illegal armed group and involvement in the murder of Mr Demilkhanov on the night of 17 September 2000. Later Rustam Z. retracted his statements in this regard, alleging that they had been made under duress. In March 2005 the charges relating in part to his involvement in the murders on 17 September 2000 were dropped. The investigation of the charges against Rustam Z. was at some point joined with the investigation of the five murders, but after the charges against him were dropped, the cases were separated (see paragraphs 51-54 below). 31. The Government added that the investigation into the murders committed in Starye Atagi on 17 September 2000 had been adjourned and reopened on four occasions. 32. In their observations, the Government also stated that the relatives of Salaudi Zubayrayev had not been interviewed or been granted victim status in the proceedings in view of their departure from Russia. In October 2004 the investigation questioned and granted victim status to Mrs. E., Salaudin Zubayrayev’s daughter-in-law. She stated that she had been in Grozny at the relevant time but had no additional information about the circumstances of the crime. 33. The Government added that the investigation had failed to establish the identity of the culprits and no one had been charged with the crime. However, the implication of servicemen or representatives of other State authorities had not been established. The investigation had focused on the main theory that the murders had been committed by members of illegal armed groups in order to intimidate the civilian population and to destabilise the district, especially as one of the persons killed was the son of a police officer from the Ministry of the Interior. 34. Following the Court’s decision on admissibility in September 2006 and a request to produce documents from the investigation file, the Government submitted about 50 pages of documents from the case file, which contained over 300 pages. The documents are summarised below in Part B, and, in addition to the initial documents drawn up on 17 September 2000, contained the prosecutor’s decisions to adjourn and reopen the investigation and papers relating to the charges against Rustam Z. Relying on the information obtained from the Prosecutor General’s Office, the Government observed that the investigation was in progress and that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses. However, they agreed to produce several documents whose “disclosure did not contravene the requirements of Article 161”. 35. The applicant’s relatives stated that on 10 December 2000 three armoured personnel carriers (APCs) and one Ural truck with soldiers had arrived at their family home. The applicant’s two brothers, Magomed and Khasan, had run away through the backyard when they heard the vehicles approaching. The applicant’s mother had remained in the house with her daughters and daughters-in-law. 36. According to the applicant’s mother, servicemen wearing masks had entered the house, asked the women about the whereabouts of the men, and then asked if anyone had complained “to Europe”. They had also asked them about electronic equipment found in the house and whether they had any weapons or money. The applicant also alleged that the military had taken a number of valuables from the house. The neighbours had later told the Zubayrayev family that the hull and registration numbers of the APCs and the Ural truck were covered with mud and that they had not been allowed to get sufficiently close to note them down. 37. The raid on the Zubayrayevs’ house on 10 December 2000 had been reported by NGO Memorial in their monthly monitor of human-rights violations in Chechnya. In February 2001 the applicant had again written to the Council of Europe Human Rights Commissioner, to inform him that pressure was being exerted on his family. 38. Early in the morning of 14 January 2001 the applicant’s family’s house had again been searched by servicemen. After that the applicant’s remaining family had left the house, as they feared for their lives and security and did not trust the Russian authorities any more. 39. The applicant presented his mother’s written account of these events, countersigned by her and her other children who had been living with her at that time. 40. In February 2001 Obyedinennaya Gazeta published an open letter from the residents of Starye Atagi to Mr Aslakhanov, a member of the State Duma. The letter, which was signed by the head of the village council and 150 villagers, complained of several “mopping-up” operations in the village in 2000 – 2001, including on 14 January 2000, when the Zubayrayev family home was raided. The letter further listed 57 inhabitants of the village who had lost their lives since October 1999, among them the applicant’s father and four other men, who had been killed on the night of 17 September 2000 by unknown persons wearing camouflage uniforms and masks and speaking Russian. 41. In March 2001 the applicants’ remaining family left Russia and sought asylum abroad. 42. The Government denied that there was any information to suggest that the members of the applicant’s family had been ill-treated or that their homes had been searched or their possessions confiscated. 43. In December 2006 the Government informed the Court of the progress of the investigation and produced several documents from the case file. Altogether, they produced 34 documents running to 52 pages from the file, which, as can be ascertained from the page numbering, comprised over 300 pages. Below is a summary of the documents concerned. 44. On 17 September 2000 the investigative group of the Grozny District Prosecutor’s Office compiled a report on the scene of the crime. The five-page handwritten document contained a description of each individual site where the killings had been carried out, a brief description of the bodies of the victims and a list of the cartridges and bullets that had been collected at the sites, some of which bore production numbers. In relation to the applicant’s father the report read: “the body of Salaudi Zubayrayev was examined in his house. The body bears two gunshot wounds to the dorsum and two to the head: one to the back of the head and one to the right temple area.” 45. On 17 September 2000 the Grozny District acting prosecutor drew up the following account of the events for the Chechnya Prosecutor: “At 9.30 a.m. on 17 September 2000 the Grozny District Prosecutor’s Office was informed by the Grozny Temporary District Department of the Interior (VOVD) of the murder of five inhabitants of Starye Atagi. Following this message, at 10 a.m. a group of [investigators of the district prosecutor’s office and the VOVD] set out to the scene of the crime. There, a number of operative and immediate investigative steps were taken, as a result of which it was possible to establish the following. On the night of 16 to 17 September 2000, at about 2 a.m., a group of persons using a number of vehicles (probably including a grey Volga car without number plates) had burst into the village. The group was composed of about 14-18 persons wearing new camouflage uniforms of a green-yellow colour and armed with automatic weapons, hand-pistols and knives. Between 2 a.m. and 3 a.m. the group murdered five inhabitants of the village; one person was wounded and a Volga car was damaged by gunfire. Abubakarov Musa, who was born in 1928 in Starye Atagi and was of Chechen ethnic origin and disabled, was taken out of his house at 15 Pochtovaya Street and shot dead in the street, about 200 metres from his home. The body bears gunshot wounds to the head (4) and back (1) and a knife wound to the chest. Demilkhanov Zaur Gikhaniyevich, who was born on 28.04.1981 in Grozny and was of Chechen ethnic origin and unemployed, was killed in his house at 155 Nagornaya Street, in the presence of his parents. The body bears gunshot wounds to the head (2), back and legs (2). Elmurzayev Vakha Elmurzayevich, who was born on 21.03.1934 in the village of Zony and was of Chechen ethnic origin and unemployed, was taken out of his house at 150 Nagornaya Street by the assailants and killed in the courtyard of the house at 156 Nagornaya Street. The body bears injuries from blunt instruments to the head, gunshot wounds to the chest and abdomen (6). Elmurzayev Isa Vakhovich (son of Vakha Elmurzayev), who was born on 15.03.1967 in Starye Atagi and was of Chechen ethnic origin and disabled, was killed in his house at 150 Nagornaya Street. The body bears gunshot wounds to the neck (1) and chest (4). Zubayrayev Salavdi Khamilyevich, who was born in 1935 in Starye Atagi and was of Chechen ethnic origin, lived in his house at 105 Nagornaya Street. He was taken out of his house by the assailants and killed in Podgornaya Street, about 100 metres away. The body bears gunshot wounds to the back (3) and head (2). The same armed persons also attacked Moldy [M.], who was at his home at 50 Sheripova Street. He received gunshot wounds to both legs and the abdomen. However, he managed to escape from his assailants and his neighbours immediately took him to hospital in a Volga car, where he received first aid. While [M.] was being driven to the hospital, the vehicle [he was travelling in] was shot at and damaged. After the assault the criminals left Starye Atagi in an unknown direction. As the statements of the witnesses show, the criminals used automatic weapons (AK, AKM), hand pistols (PM) and knives. The firearms were equipped with silencers. Attempts from fellow villagers to intervene were cut off by threats and shots fired in the air. Between themselves the criminals spoke Russian, some with a Chechen accent. They did not make any demands of the victims or take any property. They acted in a coordinated way, according to a plan, with remarkable audacity and cynicism. The murders were committed in the presence of relatives and fellow villagers. The victims had no family, personal or business connections with or dependencies on each other. They did not participate in political or public life. There is no information concerning their possible involvement with illegal armed groups. During the on-site inspection each of the places where the victims were killed was examined, as were the sites where [Mr M.] was attacked and the Volga car shot at. The investigators took a large number of photographs of the relevant spots and traces of blood and collected a number of cartridges and bullets (5,45 millimetre, 7,62 millimetre – that is to say AKS-74U and AKM accordingly, 9 millimetre – PM). On 17 September 2000 the Grozny District Prosecutor’s Office opened criminal investigation file no. 18040 under Article 105 part 2 (a) of the Criminal Code. ... The main theory of the investigators is that the crime was committed by members of illegal armed groups in order to scare the local population and to destabilize the situation in Grozny District, in order to provoke a conflict between the population and the acting federal authorities. The investigators are also looking at other possible explanations. It should further be noted that the crime has been widely reported and prompted an outcry by a large section of the public. It has given rise to antagonism on the part of the population of Starye Atagi towards the law-enforcement authorities and allowed them to disparage the work of the law-enforcement bodies and the federal authorities in general. The villagers are certain that the crimes were committed by members of illegal armed groups. The investigative team who came to Starye Atagi on 17 September 2000 were criticised by the local residents who said that the federal authorities and law-enforcement bodies were unable to protect them against criminal attacks by illegal armed groups; as an example of this they referred to the events of 17 September 2000.” 46. On 17 November 2000 the investigation was adjourned because the identity of the killers could not be established. 47. On 5 April 2001 the investigation was resumed. The Chechnya Prosecutor’s Office ordered a number of steps to be taken, in particular that eye-witnesses and other witnesses be questioned, victim status be granted to the victims’ relatives, information concerning the personalities of the deceased be collected, and forensic and ballistic expert reports carried out. 48. On 19 May 2001 the investigation was adjourned. It does not appear that this information was conveyed to anyone outside the Grozny District Prosecutor’s Office. 49. On 16 October 2004 the investigation was resumed pursuant to an order of the Grozny District Prosecutor. The order noted that one Moldy M., who had been wounded on 17 September 2000, had not been questioned. The district prosecutor stated that he should be questioned and granted victim status in the proceedings and that a medical expert report should be ordered. Furthermore, the investigating authorities were to collect statements from relatives of the five men who had been killed and to accord them victim status. They were also to question neighbours, police officers and local public officials about the personalities of the victims and the circumstances of the crime. They were instructed to make an official inventory of the real evidence pertaining to the case, notably the bullets and cartridges, and to obtain the results of a ballistic expert’s report, which had apparently been commissioned in October 2000. 50. In November 2004 the Grozny District Prosecutor extended the term of the investigation for one month. He noted that a number of procedural steps had been carried out in the meantime, in particular, Mr M. had been questioned and, he and the relatives of the five persons killed had been granted victim status in the proceedings. Witness statements had been collected from villagers, police officers and local officials in Starye Atagi. A number of expert reports had been commissioned and in some cases the results had already been obtained. However, a number of other investigative actions were still pending and therefore the term of the investigation was extended. 51. On 2 November 2004 a certain Rustam Z. was arrested and charged with participation in an illegal armed group (Article 209 part 2 of the Criminal Code) and murder committed by a group (Article 105 part 2 (j)). 52. On 18 November 2004 the acting deputy to the Chechnya Prosecutor ordered the joinder of the proceedings in criminal investigation file no. 51979 against Rustam Z. and criminal investigation file no. 18040 concerning the murder of five persons in Starye Atagi on 17 September 2000. The decision referred to a statement of 1 November 2004 in which Mr Z. had admitted his involvement in the murders. He stated that since 2002 he had been a member of an illegal armed group, at that time headed by “Emir Mussa Salayev”. In 2000, before becoming a full member of the gang, he had been asked by one of its members to assist in “settling the scores” with the Starye Atagi local police inspector [Mr Demilkhanov]. It was thus established that the investigation concerned the same set of events and the proceedings were joined to case no. 51979. 53. Rustam Z. was questioned again on 11 November 2004 and stated that in the evening of 16 September 2000 he had been asked to keep watch outside the house of the police officer. He had heard shots fired inside the house. After about 30 minutes he saw that other members of the gang had brought an older man to the house and heard further shots being fired. The gang members later told him that they had not found the police inspector at home and had killed his son [Zaur Demilkahnov] in his bed because they had mistaken him for his father. He had later learnt that the gang members had killed several other persons in the village that night. 54. On a later date Mr Z. stated that he had made his statement under duress from the police officers who had arrested him and that he had not taken part in the killing of Zaur Demilkhanov. His relatives testified that Rustam R. had been in Ingushetia from 1999 to 2002, together with the rest of the family. He had not been in Chechnya even for short periods prior to 2002. On 15 March 2005 the murder charges were withdrawn. As a result, on 23 April 2005 the two criminal cases were again severed and the five murders of 17 September 2000 were reassigned to case file no. 18040. In April 2005 Mr Z. was charged with participation in an illegal armed group, armed robbery, the illegal handling of arms and explosives and stealing identity documents. 55. On 1 May 2005 investigation no. 18040 was adjourned. The victims were informed of that decision and of the possibility of an appeal. 56. On 14 November 2006 the investigation was resumed, before being further adjourned on 14 December 2006 and reopened on 20 December 2006. The victims were informed.
| 1
|
train
|
001-76923
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,006
|
ANDORKA v. HUNGARY
| 3
|
Inadmissible
| null |
The applicants, Mr Károly Andorka and Mr Ferenc Vavra, are Hungarian nationals who were born in 1967 and 1941 and live in Szeremle and Baja, Hungary, respectively. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 September 1996 the Baja District Public Prosecutor’s Office preferred a bill of indictment against the applicants, charging them with bribery and other offences. On 14 October 1996 the case was assigned to the Baja District Court. This court suspended the proceedings on 22 September 1998 with a view to obtaining the Constitutional Court’s ruling on a procedural question. After the constitutionality proceedings had been terminated on 29 May 2001, the bill of indictment was served on the applicants on 25 June 2001. In the ensuing proceedings, the applicants were assisted by defence counsel of their choice. On 4 September, 6 and 7 November and 13 December 2001, the District Court held hearings and, on the latter date, found the applicants guilty of bribery. They were sentenced to fines. On appeal, on 19 December 2002 the Bács-Kiskun County Regional Court held a public hearing, which the applicants did not attend, despite having been properly summoned. Their lawyer was present. The court upheld the applicants’ conviction. In application of section 267 § 2 of the (Old) Code of Criminal Procedure, the judgment was served on the applicants’ lawyer on 23 January and on the applicants on 28 and 30 January 2003, respectively.
| 0
|
train
|
001-98075
|
ENG
|
FIN
|
CHAMBER
| 2,010
|
CASE OF ILTALEHTI AND KARHUVAARA v. FINLAND
| 4
|
Violation of Art. 10;No violation of Art. 6-1
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant company is based in Helsinki. The second applicant was born in 1954 and lives in Helsinki. The applicant company publishes a nationwide newspaper called Iltalehti and the second applicant is the editor-in-chief of that newspaper. 6. On 4 December 1996 A., the National Conciliator (valtakunnansovittelija, riksförlikningsmannen) at the time, and B., his female friend, entered late at night A.'s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A.'s grown-up children, led to A.'s arrest. Following this incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage (vahingonteko, skadegörelse), and B. to a fine for assault. On 17 January 1997 the Council of State (valtioneuvosto, statsrådet) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court (hovioikeus, hovrätten) upheld the judgment with respect to B. As regards A., the case was discontinued as he had died on 14 May 1998. On 15 December 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused B. leave to appeal. 7. On 17 January 1997, one day after the Helsinki District Court judgment, the Iltalehti newspaper published an article about A. and B. with a title “A. defends fiercely his post”. The article focused mainly on A.'s conviction but in the caption to B.'s picture, her name, conviction and the fact that she was A.'s female friend were mentioned. Prior to this article, the identity of B. had been revealed at least in a Finnish magazine on 7 January 1997 (see Tuomela and others v. Finland, no. 25711/04, 6 April 2010). 8. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident on 4 December 1996 and the circumstances surrounding it. On an unspecified date they made such a request with respect to the second applicant, claiming that the article published in Iltalehti had invaded B.'s privacy. Investigations started in respect of the second applicant on 20 April 1997. 9. On 14 March 2000 the public prosecutor brought charges under chapter 27, section 3(a) of the Penal Code against the second applicant in Vantaa District Court. B. concurred with the charges brought by the public prosecutor and pursued a compensation claim against both applicants, which was joined to the criminal charges. The applicant company was summoned on 10 April 2000. 10. On 8 November 2002 the court, after having held an oral hearing on 4 November 2002, first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions, the conclusions and the summary of the case. Additionally, the identity of B. was not to be revealed in the public parts of the case file. As to the merits of the case, the court sentenced the second applicant to pay twenty day-fines, amounting to 2,040 euros (EUR), for invasion of B.'s private life. Moreover, the applicants were jointly ordered to pay B. EUR 10,000 plus interest for non-pecuniary damage as well as her costs and expenses. 11. The District Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B.'s name had been mentioned twice in the context of an interview with A., had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to A.'s dismissal from his post as National Conciliator did not justify revealing her identity. Nor was B.'s conviction of a kind that would have justified revealing her identity. The applicants, therefore, had had no right to reveal B.'s name or to publish her picture. As to the intent, the District Court found that invasion of private life was punishable only if intent could be shown. As the second applicant had not prevented the invasion of B.'s private life, this omission fulfilled the intent criteria. 12. By letter dated 9 December 2002 the applicants appealed to the Helsinki Appeal Court, claiming, inter alia, that the provision of the Penal Code in question did not define with sufficient clarity which acts fell within its scope, and that a disclosure of a convicted person's name could not be considered as falling within the scope of private life. Moreover, the lack of evidence was used to the detriment of the second applicant. 13. On 12 October 2004 the Appeal Court, without holding an oral hearing, partly upheld the District Court judgment. The court balanced the right to freedom of expression against the protection of private life in the light of the Court's case-law. It found that, according to the preparatory works and the national and the Court's case-law, the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that B. was not a public figure, and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. However, since the convictions of A. and B. were closely linked in this case, B.'s name and conviction could lawfully have been mentioned. Nevertheless, the publishing of a big picture of B. was not necessary and therefore invaded her privacy. As to the intent, the omissions of the second applicant could not be regarded as proving his intent to invade B.'s privacy and, consequently, the charges against him were dismissed. He was also exonerated from paying B. non-pecuniary damages as well as her costs and expenses. The non-pecuniary damages payable by the applicant company were lowered to EUR 5,000. In total the applicant company paid EUR 14,374.47 as compensation. 14. By letter dated 13 December 2004 the applicant company applied for leave to appeal to the Supreme Court, reiterating the grounds already presented before the Appeal Court. Moreover, it claimed that, in declaring that the case file was to remain secret, the Appeal Court had not given any reasons which would constitute sufficient grounds for the measure, that the length of the proceedings had exceeded a reasonable time, and that the restrictions on freedom of expression were neither necessary nor justified in this case. 15. On 15 August 2005 the Supreme Court refused the applicant company leave to appeal. 16. The relevant domestic legislation and practice are outlined in the Court's judgment in Flinkkilä and others v. Finland (no. 25576/04, §§ 19-44, 6 April 2010). 17. The relevant international materials are outlined in the Court's judgment in Flinkkilä and others v. Finland (cited above, §§ 45-47).
| 1
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train
|
001-61799
|
ENG
|
NLD
|
CHAMBER
| 2,004
|
CASE OF L. v. THE NETHERLANDS
| 1
|
Violation of Art. 8;Not necessary to examine Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award
| null |
7. The applicant was born in 1975 and lives in Breda. He had a relationship with Ms B. from mid-1993. On 14 April 1995 a daughter, named A., was born to Ms B. and the applicant. 8. Pursuant to Article 1:287 § 1 of the Civil Code (Burgerlijk Wetboek), as then in force, Ms B. obtained guardianship (voogdij) of A. The applicant was appointed as A.’s auxiliary guardian (toeziend voogd) on 19 May 1995 by the Enschede District Court judge (kantonrechter). The applicant’s auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code came into force abolishing that function. 9. The applicant and Ms B. did not formally cohabit, but the applicant visited her and A. on a regular basis. He also babysat and took care of A. on several occasions. Ms B. sometimes consulted the applicant about A.’s hearing problems. The applicant did not formally recognise (erkenning) A., as Ms B. refused to give her permission and her family also opposed such recognition. Although the applicant could have sought judicial consent for recognising A. (see paragraph 17 below), he did not avail himself of this possibility, considering that it would stand little chance of success. Moreover, the applicant preferred to respect the position adopted by Ms B. and her relatives, and maintain the de facto family ties he had with his daughter rather than establish formal legal ties with her. 10. In August 1996 the applicant’s relationship with Ms B. broke down. On 23 January 1997 the applicant requested the Almelo Regional Court (arrondissementsrechtbank) to grant him access (omgangsregeling) to A. one weekend every fortnight and some weeks during the holiday period. In those proceedings Ms B. argued primarily that the applicant’s request should be declared inadmissible in that there had never been any family life within the meaning of Article 8 of the Convention between the applicant and A. and, in so far as family life had existed, it had ceased to exist after the end of her relationship with the applicant. In the alternative, Ms B. argued that to grant the applicant access would not be in A.’s interests. Ms B. further submitted that the applicant had behaved badly towards her (violence and financial abuse) and had shown little interest in A. She indicated, lastly, that A.’s hearing was impaired and that her daughter thus required a special approach of which she deemed the applicant incapable. 11. By a decision of 26 February 1997, the Almelo Regional Court accepted that there was family life within the meaning of Article 8 of the Convention between the applicant and A., and that this family life had not ceased to exist since the breakdown of the applicant’s relationship with Ms B. It consequently declared the applicant’s request admissible. However, given the difficulties between the applicant and Ms B., the Regional Court decided to order the Child Care and Protection Board (Raad voor de Kinderbescherming) to conduct an investigation and to report to it on the feasibility of an access arrangement. 12. Ms B. filed an appeal against this decision with the Arnhem Court of Appeal (gerechtshof). By a decision of 16 September 1997, the Court of Appeal quashed the decision of 26 February 1997 and declared the applicant’s request inadmissible. In its decision, the Court of Appeal stated: “3.1 Out of the parties’ relationship (lasting from mid-1993 to August 1996), A. was born. Mr L. is the biological father of A. He has not recognised the child. The mother holds parental authority over A. by law. ... 4.5 In addition to what is stated under 3.1, the following, as contended by one side, and not, or insufficiently, disputed by the other, has been established or become plausible. The father was present at A.’s birth. He has never been formally registered at the mother’s address, but (up to August 1996) regularly visited the mother. He has also changed A.’s nappy a few times [enkele malen] and has babysat her once or twice [een enkele keer], but not since August 1996. Further, the mother has on several occasions [verschillende keren] had contact by telephone with the father about (the hearing problems of) A. 4.6 In the light of the above facts and circumstances, it has been insufficiently established that the father has a close personal relationship with the child – who at the time of the breakdown of the parties’ relationship was one year old – or that there is a link between him and the child that can be regarded as ‘family life’ within the meaning of Article 8 of the Convention. The further circumstances relied on by the father, from which it would appear that he has a close personal relationship with the child, have – in contrast to the substantiated denial thereof by the mother – not been established. The terminology used by the mother in the proceedings (she spoke about ‘a relationship until October 1996’ and ‘my ex-partner’) cannot, either in itself or in connection with the above circumstances, lead to a different conclusion. ... 5.1 On the basis of the above considerations, the impugned decision is quashed, and the father’s request is declared inadmissible.” 13. The applicant’s subsequent appeal on points of law was dismissed by the Supreme Court (Hoge Raad) on 5 June 1998. The Supreme Court rejected the argument that the mere biological link between the applicant and A. was sufficient to attract the protection of Article 8 of the Convention. It held that “family life” for the purposes of Article 8 implied the existence of further personal ties in addition to biological paternity. As to the lack of existence of such further personal ties, it accepted the findings of the Court of Appeal. 14. A child born out of wedlock had the status of the natural child of its mother. It became the natural child of its father after being recognised by the latter – the “father”, for the purposes of this provision, being the man who recognised the child, whether he was the biological father or not (Article 1:221 of the Civil Code). 15. A child born out of wedlock automatically had legally recognised family ties (familierechtelijke betrekkingen) with its mother and her relatives. Recognition by the father entailed the creation of a legally recognised family tie between him and the child, as well as between the child and the father’s relatives (Article 1:222 of the Civil Code). At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child, and the mother’s surname if not (Article 1:5 § 2 of the Civil Code). 16. Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by the Registrar of Births, Deaths and Marriages or a notary public (Article 1:223 of the Civil Code). A deed of recognition drawn up by the registrar was entered in the register of births (Article 1:21 § 3 of the Civil Code). At the request of an interested party, the regional court could order that a deed be entered in the appropriate registers (Article 1:29 § 1 of the Civil Code). 17. Recognition without the mother’s prior written consent was void (Article 1:224 § 1 (d) of the Civil Code). However, in view of the right of the father and the child to respect for their “family life”, as guaranteed by Article 8 of the Convention, the Supreme Court construed this provision in such a way that the mother’s effective right of veto could be overridden, if she abused it, by alternative judicial consent. However, such judicial consent could only be sought by a biological father whose relationship with his child was such that it should be considered to amount to “family life” within the meaning of Article 8 of the Convention (see Hoge Raad, 8 April 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – (NJ)) 1989, no. 170). In a situation where the mother was raising the child alone, judicial consent would only be given if the mother had no interest warranting protection in refusing to give her permission (see Hoge Raad, 22 February 1991, NJ 1991, no. 376, and Hoge Raad, 17 December 1999, NJ 2000, no. 121). 18. On 1 April 1998 a new Article 1:204 of the Civil Code came into force. It still provides that, for a man to recognise a child who is not yet 16 years old as his, the prior written consent of the mother is required (Article 1:204 § 1 (c)). If the mother has not given her consent, it may be replaced by the consent of the regional court (Article 1:204 § 3). However, the man who seeks alternative judicial consent must be the child’s biological father; in addition, recognition must not be detrimental to the mother’s relationship with the child or to the child’s own interests (ibid.). Furthermore, the child’s written permission is required if he or she has reached the age of 12 (Article 1:204 § 1 (d)). 19. According to the Supreme Court’s case-law under Article 1:204 § 3 of the Civil Code, the procedure for obtaining judicial consent must entail a judicial balancing exercise between the interests of the persons concerned, the point of departure being that both the child and its biological father should in principle be entitled to have their relationship acknowledged in law as a legally recognised family relationship (familierechtelijke betrekking). However, the judge must balance the father’s interests in obtaining recognition against any conflicting interests of the mother or the child or both. The mother’s interest is defined in Article 1:204 § 3 as having an undisturbed relationship with the child (see Hoge Raad, 16 February 2001, Rechtspraak van de Week (Weekly Law Reports) 1989, no. 52). 20. Also on 1 April 1998, Article 1:207 was introduced into the Civil Code, pursuant to which a child may request the regional court to issue a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap) in order to have a legal tie established between him or her and the biological father. No time-limit applies for lodging such a request. 21. Pursuant to Article 1:392 of the Civil Code, parents – namely, the persons who have become a legal parent of a child either ipso jure, or through recognition, a judicial declaration of paternity, or adoption – are obliged to provide for the maintenance of their minor children. The absence of recognition of a child does not absolve the biological father of his maintenance obligations towards this child. Pursuant to Article 1:394 of the Civil Code, the biological father of an unrecognised child remains liable to pay maintenance until the child has come of age. Until 1 April 1998, when this provision was amended as a consequence of the introduction of the possibility of seeking a judicial declaration of paternity, Article 1:394 § 3 provided that the supposed biological father of an illegitimate, unrecognised child was the man who had had intercourse with the mother between the 307th and 179th day before the birth of the child. 22. Access rights are regulated by Articles 1:337a-h of the Civil Code. 23. The relevant part of Article 1:377a of the Civil Code provides as follows: “1. The child and the parent who does not have custody are entitled to have access to each other [omgang met elkaar]. 2. The judge shall, at the request of the parents or of one of them, establish an arrangement, for a definite or indefinite period, for the exercise of the right of access or shall deny, for a definite or indefinite period, the right of access. 3. The judge shall only deny the right of access if: (a) access would seriously impair the mental or physical development of the child; (b) the parent is deemed to be manifestly unfit for or manifestly incapable of access; (c) the child is at least 12 years old and has, when being heard, manifested serious objections against allowing the parent access; or (d) access would for another reason be contrary to the weighty interests [zwaarwegende belangen] of the child.” 24. The relevant part of Article 1:377f of the Civil Code reads as follows: “1. Without prejudice to the provisions of Article [1:]377a [of the Civil Code], the judge may, on request, establish an access arrangement between the child and the person having close personal ties with it. The judge may reject the request where the interests of the child oppose granting it, or where the child is at least 12 years old and objects to it.” 25. According to the case-law of the Supreme Court, a request by a biological father for access to a child whose paternity he has not recognised is to be examined under Article 1:337f, and not under Article 1:337a, of the Civil Code, in that he is not a “parent” within the meaning of Article 1:337a. Where the father of a child born out of wedlock has recognised the child, a request for access is to be examined under Article 1:377a of the Civil Code (see Hoge Raad, 15 November 1996, NJ 1997, no. 423, and Hoge Raad, 26 November 1999, NJ 2000, no. 85). 26. In several cases in which a biological father has claimed a right of access to his child under Article 8 of the Convention, the Supreme Court has held that mere biological fatherhood in itself is insufficient to establish the existence of “family life”. According to the Supreme Court, such a relationship can only be regarded as involving “family life” where there are additional circumstances, such as regular contact with the child, from which it ensues that the tie with the father can be regarded as constituting “family life” (see Hoge Raad, 26 January 1990, NJ 1990, no. 630; Hoge Raad, 19 May 2000, NJ 2000, no. 545; and Hoge Raad, 29 September 2000, NJ 2000, no. 654).
| 1
|
train
|
001-90836
|
ENG
|
POL
|
ADMISSIBILITY
| 2,008
|
GRUDZINSKI v. POLAND
| 4
|
Inadmissible
|
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr Albert Grudziński, is a Polish national who was born in 1945 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. J.G., the applicant's legal predecessor, owned a brickyard located in Błonie. By virtue of a decision issued on 2 November 1950 the Minister of Light Industry (Minister Przemysłu Lekkiego) nationalised the brickyard pursuant to the Law of 3 January 1946 on Nationalisation of Principal Sectors of National Economy. In 1991 J.G. made an application to the Minister of Industry and Commerce (Minister Przemysłu i Handlu) for annulment of the 1950 decision on nationalisation. On 23 February 1993 the Minister declared the 1950 decision null and void. The Błonie municipality appealed against that decision. On 1 December 1993 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed its appeal. On 30 December 1993 J.G. requested the Minister of Industry and Commerce to award her compensation for damage sustained as a result of the nationalisation decision. In May 1994 the Minister ordered J.G. to indicate the actual damage (szkoda rzeczywista) sustained in connection with the nationalisation. In April 1995 J.G. submitted that her compensation claim amounted to 3,378,233 Polish zlotys (PLN). On 11 December 1996 the Minister awarded J.G. compensation in the amount of PLN 1,819,895. J.G. contested the amount of the award. In January 1997 she sued the State Treasury before the Warsaw Regional Court (Sąd Wojewódzki), seeking further compensation in the amount of PLN 1,558,338. On 10 December 1998 the Regional Court dismissed her claim. J.G. appealed against that judgment to the Warsaw Court of Appeal (Sąd Apelacyjny). Following J.G.'s death, the applicant and her four other successors became parties to the proceedings before the Court of Appeal. On 27 April 2001 the Court of Appeal upheld the judgment of the Regional Court. In August 2001 the applicant and other co-plaintiffs lodged a cassation appeal against the judgment of the Court of Appeal. They also requested to be exempted from court fees required for proceeding with their cassation appeal. They claimed that due to their difficult financial situation they could not afford to pay them. The applicant stressed that his monthly salary amounted to 5,560 PLN. However, he had to support his unemployed wife and his mother-in-law. On 27 September 2001 the Court of Appeal dismissed their application for exemption from court fees. Its decision was not reasoned and no appeal lay against it. On 8 October 2001 the Court of Appeal ordered the applicant and other co-plaintiffs to pay court fees in the amount of PLN 79,516.90. On 27 November 2001 it rejected their cassation appeal for failure to pay the court fees. The applicant did not appeal against this decision although it would have been open to him to have done so under the Code of Civil Procedure. The legal provisions relating to setting court fees as applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-9). Article 394 of the Code of Civil Procedure as applicable at the material time, guarantees a party to proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain decisions, specified in this provision. An appeal is available against a refusal of exemption from court fees when such decision has been given by a firstinstance court. The Supreme Court has held in a number of its decisions that no appeal is available against an interlocutory decision on court fees given by a second-instance court. Court fees for lodging such an interlocutory appeal should amount to one fifth of the court fee due in the proceedings. Pursuant to Article 380 of the Code of Civil Procedure, on the request of a party, a second-instance court shall consider the interlocutory decisions of the first-instance court against which that party could not have filed an interlocutory appeal. The Supreme Court has also held on many occasions that when examining an interlocutory appeal against a decision to reject a cassation appeal for failure to pay court fees, it would also consider the previous decision on refusal to give an exemption from the payment of court fees (see I CZ 259/99 unpublished, I CZ 81/2006, OSNC 2007 No. 2, item 36).
| 0
|
train
|
001-22823
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,002
|
MADSEN v. DENMARK
| 2
|
Inadmissible
|
Christos Rozakis
|
The applicant, Hans Eigil Madsen, is a Danish national, who was born in 1974 and lives in Glostrup. He is represented before the Court by Mr Harlang, a lawyer practising in Copenhagen The respondent Government are represented by their Agent Mr Hans Klingenberg, the Ministry of foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. From 25 April 1998 until 23 May 2000 the applicant was employed, notably as a passenger assistant by a Danish shipping company, henceforth called DFDS (Scandinavian Seaways), and he was a member of a trade union, henceforth called DSRF (Dansk Sø-Restaurations Forening). In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board. At the relevant time he worked in shifts of 16 days at work on board followed by 8 days of leave on land. DFDS had issued a circular on 15 April 1993 laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company/shipmaster. On 11 June 1999 DFDS issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of 0.2 per mille and when on leave on board 0.4 per mille. When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test. A passage headlined “control” stated: “By request of authorities, the Captain or DFDS all employees are under an obligation to submit to tests for alcohol, drugs or any other intoxicating substances. The employees can expect to undergo such a test without notice at least once a year.” A passage headlined “violation of these regulations” stated inter alia: “A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal...” A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it. In the summer of 1999 DFDS introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine. In letters of 6 July and 2 August 1999 DSRF and another trade union henceforth called RBF (Restaurationsbranchens Forbund) informed DFDS that they could not approve of the new set of regulations. Thus, a conciliation meeting was held on 28 July 1999 between the employer and the said trade union, but the parties failed to reach an agreement. On 15 September 1999 the applicant, allegedly without any kind of suspicion, was requested to provide an urine sample behind a screen in a room in which a person from a British company called Medscreen, hired for this purpose, was present. It appears that no trace of alcohol or drugs was found. DSRF and RBF instituted civil proceedings against DFDS before a Court of Arbitration claiming that DFDS should acknowledge that the control procedure introduced by the regulations of 11 June 1999 was wrong and that accordingly, despite any given signature the employees could not be obliged to provide a urine sample. Among other arguments they claimed that the random urine tests were in breach of Article 8 of the Convention. On 23 February 2000 the Court of Arbitration found for DFDS. In its decision the Court stated: “Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states: Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations. Likewise, the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose, do not offend the employees’ dignity, and do not cause any loss or appreciable inconvenience for the employees. It is undisputed that alcohol is a legal stimulant and drugs are not, though in Denmark the possession of hashish for ones own consumption is seen as a minor offence. The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship, which is one of the reasons why the merchant navy prohibits any possession of drugs on board. The past regulations [of 1993] issued by DFDS solely authorised a control measure with regard to the employees’ alcohol consumption. It appears that the past regulations were not objected to and, as the case has been presented before the Court, it is mainly the test introduced [in 1999] for drugs and other intoxicating substances that caused the present dispute. It is undisputed that on two occasions within the last half year two employees have been in possession of and used drugs. The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant, which must be considered a serious problem. Therefore, DFDS do have a justified reason for introducing measures of control suitable and contributing to solve this problem. The consumption of alcohol will usually be traceable by the smell or by using a breathalyser. This is not the case when it comes to drugs or any other intoxicating substances. Taking a blood sample would require the consent of the person concerned. It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee’s ability to perform his or her duty. Thus, providing a urine sample is a possible measure of control. There is no substantiation for assuming that DFDS uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs. No information is provided as to whether the samples are stored, and in the affirmative how, but any extension of the test, be it on the basis of a sample already submitted or of future tests, do require that the employees are informed. Also such an extension may be brought before a Court of Arbitration for review. The employees do not suffer any loss as the test is submitted to during working hours. The control measure introduced by DFDS applies to all employees on board including the Captain. X testified that the test is performed in a room in private. Thereafter the urine sample is handed over. In this way the test cannot be considered to expose the individual’s decency. In addition, since everybody is obliged to submit to the test the individual’s honour cannot be considered infringed. The plaintiff has submitted that the test infringes the employees’ spare time, as it will reveal which activities the employees have been involved in. However, an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties. Accordingly, this entails some limits on the employees’ spare time before coming to work. However, having regard to the fact that the consumption of alcohol and the use of drugs, unless taken on a regularly basis, do not leave traces for more than one or two days, the Court does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded. The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding. The Chemical-Legal Institute (Retskemisk Institut) has stated that besides from reducing learning and memory, using hashish might reduce one’s psychomotor functions up till 24 hours when doing complex tasks. Perhaps no problems will occur when doing the daily tasks that the plaintiff’s members perform. Nevertheless, as all crew members are part of the safety crew, though rarely needed, it is absolutely essential that they are, in a fully adequate way at all times, able to perform functions related to the safety on board, which in case of a catastrophe might entail complex tasks. Accordingly, operational considerations do justify that the defendant introduced the control measure in question. The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since, having regard to the latest catastrophes on ships in the Nordic oceans, a customer has a right to assume that the shipping company aim to have as much safety on board as possible, and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way. The regulations in question contain a passage according to which a violation will lead to immediate dismissal. The defendant cannot unilaterally by introducing such a passage change the required conditions for a dismissal, and a given signature by an employee on the regulations does not entail that such a change has been accepted. However, with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company.” Below is a general description of the Danish industrial relations system, also known as the “Danish Model”. The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles: 1. the right of employees to organise in trade unions; 2. the right of the employers to manage and control work; 3. the right to industrial actions (strike, boycott and lockout) to obtain e.g. a collective agreement; 4. the embargo on industrial action which means that no strikes are lawful during the term of a collective agreement; 5. the establishment of a special arbitration tribunal to deal with all violations of the September Agreement. The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes. Thus, according to the “Danish Model” the content and scope of an employer’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes. Disputes between the labour market parties are, failing friendly settlement, finally determined by either courts of arbitration or by the Labour Court depending on the dispute in issue. Control measures. As stated above, the September Agreement from 1899 acknowledged the employer’s right to manage and control work. The right to carry out control measures was acknowledged firstly in a decision by a Court of Arbitration from 1913, and confirmed by subsequent case law. According to the said case law, the following guidelines have been characterised as reasonable control measures: 1. The control measure may not be unnecessary, but must serve a sensible purpose. 2. The form of it may not be humiliating for the employees. 3. It may not cause any loss or significant inconvenience. 4. It must be possible to submit the justification of the measure to industrial arbitration. 5. When a control measure has proved expedient and has been practised on the majority of the company employees, it can be extended to cover the rest of the staff. 6. The employer should notify his staff as early as possible of any contemplated control measure. 7. Employees shall - at least in so far, cf. point 4 above - observe the employer’s requirement of introduction of a control measure, and the trade union may be held responsible if it supports any resistance. 8. The collective agreement need not include any authority for the introduction of control measures. If a regular scheme has been laid down in the collective agreement, the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections. 9. Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “undue delay” to the employees. 10. No claim can be made to leave salaried employees (masters, foremen) out of the search scheme. 11. Control measures (in particular searches) must be carried out correctly and unassailably, but not necessarily by persons who are independent of the employer. 12. Controls of women (searches) must be carried out by women. Act on Use of Health Data. Act no. 286 of 24 April 1996 on Use of Health Data etc. on the Labour Market (Lov om brug af helbredsoplysninger på arbejdsmarkedet) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method. The explanatory notes to the Bill forming the basis of the Act (L 13 of 4 October 1995) gives a detailed account of the scope of the Act. The notes state partly which situations are comprised by the Act, partly which situations fall outside the Act. Among other thing is stated (see para. 3, section C, of the general explanatory notes of the Bill): “This Bill does not affect the employer’s right to institute general control measures affecting employees, e.g. in the form of tests to detect the abuse of alcohol or drugs, provided that such tests are not intended as health examinations”. It is further stated (see the special explanatory notes to section 1 of the Bill): “In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested. This is the case, inter alia, when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract. In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks. Other stimulants than alcohol may be involved. Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease. Whether such prohibition and the pertaining checks are justified is a general question under employment law.” ILO The ILO joint Maritime Commission adopted in 1991 a resolution concerning drugs and alcohol in the maritime industry. Moreover, the joint ILO/WHO Committee on the Health of Seafarers adopted in 1993 the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry. Based on the ILO Convention no. 73 on the Health of Seafarers, which entered into force on 1 August 1955, Denmark has adopted a number of legal provisions as well as an executive order (no. 903 of 28 September 1999) concerning medical examination of seafarers, the purpose of which is to ensure, having regard to the safety of the vessel and the safety and health of everybody on board, that the seafarers’ health is satisfactory. Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person’s function on board the vessel. The Seamen’s Act Pursuant to the first sentence of section 59 (3) of the Seamen’s Act (cf. Consolidated Act no. 766 of 19 September 1995) bringing drugs and other toxic substances on board a ship is prohibited. Pursuant to subsection (4) of the same provision, the shipmaster may subject the seaman’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board. The seaman is entitled to be present at the search. The provision is supplemented by section 17 (1)(iii) and (vi) of the Act according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication, or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination. According to Danish case law, a single incident of gross intoxication may lead to dismissal. However, in a recent judgment of 12 April 2002 (published in the Weekly Law Journal (Ugeskrift for Retsvæsen
| 0
|
train
|
001-57804
|
ENG
|
GBR
|
CHAMBER
| 1,993
|
CASE OF COSTELLO-ROBERTS v. THE UNITED KINGDOM
| 2
|
No violation of Art. 3;No violation of Art. 8;No violation of Art. 13
|
John Freeland
|
7. In September 1985 Mrs Costello-Roberts sent the applicant, who was then aged seven, to an independent boarding preparatory school in Barnstaple, Devon. The school had approximately 180 pupils, none of whose fees were paid out of public funds, and received no direct financial support from the Government. 8. In the school’s prospectus it was stated that a high standard of discipline was maintained, but no mention was made of the use of corporal punishment. Mrs Costello-Roberts had made no enquiry about the school’s disciplinary regime and did not at the outset make known her opposition to corporal punishment. The school in question operated a system whereby such punishment was administered upon acquisition of five demerit marks. On 3 October 1985 the applicant received his fifth demerit mark for talking in the corridor. The other demerit marks were for similar conduct and for being a little late for bed on one occasion. Having discussed the matter with his colleagues, the headmaster decided that the only answer to the applicant’s lack of discipline, about which he had received three warnings from the headmaster, was to give him three "whacks" on the bottom through his shorts with a rubber-soled gym shoe. He so informed the applicant on 8 October. 9. The punishment was administered by the headmaster three days later, eight days after Jeremy had received his fifth demerit mark. No other persons were present. Before the Strasbourg institutions it was alleged by the applicant’s counsel that he was told not to inform his parents about his punishment, but this was denied by the school. In any event, in a letter to his mother post-marked 21 October 1985, he wrote "come and picke me up I have had the wacke". He continued to write to her in some distress about the "slippering". On 4 November 1985 the school confirmed to her that her son had been slippered; according to her - though this too was contested by the Government - the school had initially denied the fact. On 5 November, Mrs Costello-Roberts wrote to the Governors of the school to express her "disquiet" and "grave concern" about the use of such a "barbaric practice". She acknowledged that the "growing problems" began after the first week of term and said that "we made it very clear to the staff ... that we considered his behaviour to be reflecting signs of an upset ...". The headmaster in his turn wrote to the Chairman of the Board of Governors on 7 November, stating that the applicant’s problems were due to a lack of discipline; he refused to accept authority and his behaviour was disrupting the life of the school community. Mrs Costello-Roberts also wrote to the headmaster to inform him that she did not want her son to be corporally punished. On 16 November 1985 he replied as follows: "in view of your obvious dissatisfaction with the education being offered ... to your son ... and your desire for him to be exempt from the framework of discipline and punishment that is acceptable to all other parents at the school, it seems best if [he] is removed from [the school] at the end of the present term." 10. The applicant’s mother complained to the police some time between 4 and 16 November 1985, but was told that there was no action they could take without any visible bruising on the child’s buttocks. A complaint by her to the National Society for the Prevention of Cruelty to Children received a similar response. 11. The staff were said to have noticed an almost immediate improvement in the boy’s behaviour after the corporal punishment, but considered that the subsequent contact that he had had with his parents during the half-term holiday had caused him to revert. The headmaster was of the opinion that the applicant "strung his parents along", taking home stories about bullying and the like "which he has clearly made up but which equally clearly his parents believe". It was argued in Strasbourg, on behalf of the applicant, that he had been extremely disturbed by the slippering, which turned him from a confident, outgoing seven-year-old into a nervous and unsociable child. The Government contended that, according to their information, any change in the child’s character during his time at the school was more likely to have been caused by his inability to adjust to the constraints of boarding-school life than the "slippering". In their view, the above-mentioned correspondence between the mother, the school Governors and the headmaster reflected the boy’s adaptation difficulties. 12. The applicant left the Barnstaple school in November 1985 and entered a new school in January 1986. It reported in July 1986 that he had "calmed down considerably" since his arrival, when he had been unsociable, nervous and quite aggressive. 13. In English law, at the relevant time, there were various criminal offences of assault, the penalties for which differed according to the gravity of the offence and the court in which it was tried. The law has since been amended by the Criminal Justice Act 1988. Prosecution for common assault, the least serious form of assault, was normally brought by or on behalf of the aggrieved party in accordance with section 42 of the Offences against the Person Act 1861, as amended ("the 1861 Act"). Section 45 of the 1861 Act barred any further or other proceedings, civil or criminal, for the same cause. Consequently, the Crown did not normally undertake a prosecution for common assault, thus ensuring that the choice between criminal and civil proceedings remained with the victim of the alleged assault. In the Magistrates’ Court the maximum penalty for common assault was a fine of £400 or two months’ imprisonment. In cases of "aggravated" common assault, namely where committed upon a male child no more than fourteen years old or any female, the maximum penalty was a higher fine or six months’ imprisonment. In the Crown Court the maximum penalty on conviction increased to one year’s imprisonment. Assault occasioning actual bodily harm, a more serious form of assault, was and still is governed, in particular, by section 47 of the 1861 Act. Prosecutions are normally undertaken by the Crown and the penalty on conviction is a maximum term of five years’ imprisonment. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is a fine or ten years’ imprisonment. 14. Under the civil law, if no criminal prosecution has been brought for common assault, physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. Civil proceedings arising out of the use of immoderate or unreasonable corporal punishment by a teacher will lie either against him or his employer - i.e. the school or school authorities. Such proceedings for assault may be heard by County Courts as well as by the High Court, from both of which an appeal lies to the Court of Appeal. 15. Subject to the exceptions brought about as a result of a change in domestic law (see paragraph 16 below), it is a defence to both criminal charges and civil claims that the person against whom the charge or claim is made was a teacher administering reasonable and moderate physical punishment with a proper instrument in a decent manner. The teacher is said to have this right by virtue of being in loco parentis, exercising by deemed delegation a parental right to inflict such treatment upon children. The law governing the administration of corporal punishment by schoolteachers is, therefore, based upon the right of parents to use physical punishment on their children. Both parents and teachers are protected by the law only when the punishment in a particular case is "reasonable" in the circumstances. The concept of "reasonableness" permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children. 16. With effect from 15 August 1987 when sections 47-48 of the Education (No. 2) Act 1986 came into force - i.e. after the events giving rise to the present case - the above-mentioned defence ceased to be available to a teacher in civil proceedings for trespass in respect of certain pupils, namely those at schools maintained by local education authorities and certain other schools for which the State provides financial assistance, and those at independent schools (see paragraph 21 below) whose fees are paid out of public funds. 17. Under the Education Act 1944 parents have a duty, on pain of criminal sanctions, to educate their children. They have the choice between providing suitable education at home or using independent or State schools. The Secretary of State has a duty under the same Act to ensure certain educational standards. 18. An independent school (often referred to as a "private school") is one at which full-time education is provided for five or more pupils of compulsory school age not being a special school defined under section 114(1) of the Education Act 1944 as one specially organised to provide education for pupils with learning difficulties, or a school maintained by a local education authority. Independent schools must apply for registration to the Registrar of Independent Schools, an officer of the Department of Education and Science. Registration is subject to the provision of suitable safety, health and educational standards. The Government contended before the Convention institutions that it was clear from the provisions of sections 70-75 of the Education Act 1944 that the Secretary of State has no power to refuse to register an independent school on the ground that corporal punishment is administered there and that any refusal to register a school on this ground would be open to legal challenge by the school concerned. 19. Once registered, independent schools remain subject to periodic inspections and visits by Her Majesty’s Inspectors, but they are not subject to the same standards as State subsidised schools. Section 71(1) of the Education Act 1944 empowers the Secretary of State to initiate a complaints procedure which may result in an independent school being struck off the register. Subject to the exceptions mentioned at paragraph 16 above, independent schools remain free to use corporal punishment as a disciplinary measure. According to the Government: (a) whilst the use within the school of excessive corporal punishment (involving successful criminal prosecutions) might lead the Secretary of State to use his powers under section 71(1), the use of moderate and reasonable corporal punishment would not be a ground for serving a notice of complaint on the school or for withdrawing its registration; (b) complaints of too frequent use of corporal punishment would be referred to Her Majesty’s Inspectors who could be expected to discuss with the school its disciplinary policy, but ultimately this would be a matter for the school to decide on, within the legal constraints, leaving individual parents who objected to the policy to select a different school for their children; (c) none of the eleven notices of complaint issued in the past five years concerned the use of corporal punishment. The applicant contended, on the other hand, that the procedure leading to striking off the register was initiated in respect of a school making substantial use of corporal punishment. Her Majesty’s Inspectors expressed concern, inter alia, with the corporal punishment system and recommended that the school review its practice. 20. Under the Children Act 1989 - not in force at the relevant time - independent schools which provide boarding accommodation for not more than fifty children (other than those approved under the Education Act 1981 as suitable for children with special educational needs) are required to register as children’s homes. Under the Children’s Homes Regulations 1991 the use of corporal punishment has been prohibited in such schools. 21. In England and Wales, the State funds directly three out of a total of 2,341 independent schools. Certain pupils in 295 independent schools receive financial support from public funds under the Assisted Places Scheme pursuant to section 17 of the Education Act 1980. In the year 1991-92, 28,303 pupils out of a total of some 550,000 took up assisted places. Local education authorities may pay for the education of pupils in their area at independent schools or assist with the fees of pupils in cases of hardship. Independent schools have charitable status, which entitles them to the tax reliefs accorded to charities generally.
| 0
|
train
|
001-106267
|
ENG
|
MLT
|
ADMISSIBILITY
| 2,011
|
MUSCAT v. MALTA
| 4
|
Inadmissible
|
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
|
The applicant, Mr Joseph Muscat, is a Maltese national who was born in 1983 and lives in Gudja. He was represented before the Court by Dr J. Herrera, a lawyer practising in Valletta. The facts of the case, as submitted by the applicant, may be summarised as follows. Following a car accident on 22 October 2007, the applicant was sued by third parties for damages. According to section 15 (11) of the Arbitration Act (AA) the action was filed with the Arbitration Centre (AC). As the parties did not agree on the choice of arbitrator, an arbitrator was appointed by the AC’s Chairman according to section 20 (2) of the AA (see relevant domestic law). The applicant acknowledged that the two insurance policies covering the traffic accident had not been issued by an insurance company for which the arbitrator nominated acted as a legal adviser when working in private practice. Thus, there was no direct conflict of interest. At the first sitting the applicant submitted that the law making this type of action subject to arbitration, as opposed to the ordinary courts, breached his Convention rights under Article 6 § 1. At the request of the applicant the proceedings were suspended pending the outcome of constitutional proceedings (see below). After they were resumed in December 2010 the proceedings were again suspended pending the outcome of proceedings before this Court. According to the applicant, had he not requested these suspensions, the State would have argued that he had accepted the jurisdiction of the arbitrator. On 25 July 2008 the applicant instituted constitutional redress proceedings alleging a breach of Article 6 § 1 on account of the fact that he was forced to submit his case to an arbitrator who did not offer sufficient guarantees of independence and impartiality. He requested the court to stay the proceedings. By a judgment of 29 May 2009 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant’s claim. It considered that the applicant had a legal interest in filing the claim as it was the law itself and not its application in the applicant’s case that infringed his rights. It held that since arbitration was mandatory in certain cases, the tribunal had to be independent and impartial. Having analysed the AA provisions (see relevant domestic law), it considered that an arbitrator was subject to the AC’s decision. The AC’s Chairman had a discretion to decide whether to appoint a person as arbitrator and whether to appoint that person again in a subsequent case. It followed that the appointment of an arbitrator to one or more cases depended on the subjective appreciation of the AC, who was to an extent subject to the control of the Minister. Thus, the arbitrator did not enjoy security of tenure. He or she would be chosen for specific cases and might never be chosen again if disliked. The court further considered that an appeal on points of law could not remedy this defect, since such right of appeal was limited in scope. In consequence, the Arbitration Tribunal did not fulfil the requirement of independence under Article 6 § 1, particularly where, as in the instant case, the parties had not agreed on the choice of arbitrator. The court further held that the system also created justified doubts as to the objective impartiality of the Arbitration Tribunal, having regard to its composition, organisation and the appointment and removal of arbitrators. On 15 June 2009 the defendants appealed. By a judgment of 6 September 2010 the Constitutional Court upheld the appeal and reversed the first-instance judgment. Reiterating that the AC must comply with the requirements of impartiality and independence, it held that the criteria for choosing an arbitrator according to section 10 (3) of the AA (see relevant domestic law) were intended to ensure that persons appointed as arbitrators were competent and displayed integrity. In the absence of agreement between the parties, the selection of an independent arbitrator was left to the chairman. While it was true that the chairman was appointed by the Minister and was therefore to a certain extent subject to the Minister’s control, this could not be relevant since in most cases the Government were not a party to the arbitration proceedings. It followed that section 4 (4) of the AA (see relevant domestic law) offered sufficient guarantees. Moreover, the removal of an arbitrator was, like any other decision of the AC, an administrative decision subject to judicial review. However, the removal of an arbitrator from a particular case was usually intended to increase the efficiency and effectiveness of the procedure and could not raise issues as to security of tenure. Lastly, in the applicant’s case there was no actual or realistic threat to the independence of the tribunal. For the reasons stated above, the court also considered that there was no issue of partiality, particularly because the arbitrator was independent of the parties in a case and the law offered sufficient guarantees in this respect. A chairman making an appointment would have to take account of all the relevant considerations beforehand. Indeed, in the present case, it did not appear that the applicant was complaining about the specific choice of arbitrator in his case. Since such proceedings were Article 6 compliant it was not necessary to consider whether an appeal could have remedied the defect alleged. In so far as relevant, the pertinent provisions of the Arbitration Act, Chapter 387 of the Laws of Malta, read as follows: Section 4 “(1) There shall be a Board which shall be responsible for the policy and general administration of the affairs and business of the Centre. (2) The Board shall consist of not less than three and not more than five members, appointed by the President of Malta acting on the advice of the Minister, one of whom shall be designated by the Minister as chairman. The Minister shall also designate another member as deputy chairman and such member shall have all the powers and perform all the functions of the chairman during his absence, or until a new chairman has been appointed following the resignation, termination of appointment, or death of the chairman. (3) The Minister shall select the members of the Board from among persons who appear to him to be qualified by reason of having had experience of and shown capacity in matters relating to international or domestic arbitration, conciliation and the settlement of disputes, international trade, commerce, industry, investment and maritime affairs. (4) In the exercise of their functions under this Act all the members of the Board shall exercise their functions in their individual judgment and shall not be subject to the direction or control of any other person or authority.” Section 6 “(1) Subject to the provisions of sections 4, 7 and 9, the members of the Board shall hold office for a six-year period; a member shall, on ceasing to be a member, be eligible for reappointment: Provided that the Minister may at any time, on the recommendation of the Commission for the Administration of Justice established under article 101A of the Constitution of Malta, terminate the appointment of a member of the Board if in his opinion, confirmed by the recommendation of the said Commission as aforesaid, such member is unfit to continue in office or has become incapable of properly performing his duties as member of the Board, and the said Commission is hereby vested with the function and power to make a recommendation to the Minister as aforesaid.” Section 9 “(1) The Centre shall have a registrar, who shall also be the secretary of the Board. In connection with his functions under this Act, the registrar shall have power to administer oaths, including, without prejudice to the generality of the aforesaid, the power to administer oaths of office that may be required to be taken by arbitrators or any other person involved in arbitration proceedings under any rule made under this Act: (...)” Section 10 “(2) The Centre may, from time to time, draw up panels of arbitrators for domestic arbitration and panels of arbitrators for international commercial arbitration: Provided however that a person may be included in more than one panel. (3) Domestic arbitration panels may be appointed on matters related to commerce, insurance, traffic collisions, building construction, the maritime sector and such other fields as the Centre may deem expedient from time to time. The panels shall be composed of persons who in the opinion of the Centre are qualified to carry out the duties and functions of arbitrators in a particular field of expertise. (6) A person may be removed from any panel by the Centre at any time, and a person may at any time resign by letter addressed to the registrar: Provided that any such removal or resignation shall not be deemed to include the removal or resignation of that person from any arbitration proceedings in which he may have already been appointed before his removal or resignation.” Section 20 “(1) If a sole arbitrator is to be appointed, either party may propose to the other the names of one or more persons, one of whom may serve as the sole arbitrator. (2) If within thirty days after receipt by a party of a proposal made in accordance with subsection (1), the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the chairman. (3) The chairman shall, at the request of one of the parties, appoint the sole arbitrator as promptly as possible; his decision shall be final and binding. (4) In making the appointment, the chairman shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and to the members of the Domestic Arbitration Panels established under section 10(2).” Section 23 “(1) A person who is approached as a prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. (2) An arbitrator, once appointed or chosen, shall disclose to the parties the circumstances mentioned in the previous subsection unless the parties have already been informed by him of these circumstances.” Section 24 “(1) Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator’s impartiality or independence. (2) A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made.” Section 25 “(1) A party who intends to challenge an arbitrator, shall send notice of his challenge within fifteen days after the appointment of the challenged arbitrator has been notified to that party or within fifteen days after the circumstances mentioned in article 23 and 24 became known to that party. (2) The challenge shall be notified to the registrar, to the other party, to the arbitrator who is challenged and to the other members of the arbitral tribunal. The notification shall be in writing and shall state the reasons for the challenge. (3) When an arbitrator has been challenged by one party the other party may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case does this imply acceptance of the validity of the grounds for the challenge. In both cases the procedure provided in articles 20 and 21 shall be used in full for the appointment of the substitute arbitrator even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment.” Section 26 “(1) If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the chairman, and his decision shall be final and binding. (2) When the chairman sustains the challenge, he shall appoint a substitute arbitrator.” By virtue of section 15 (11) of the Act disputes arising from collisions between vehicles are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes. In so far as relevant the Arbitration Rules, Subsidiary Legislation 387.01, Legal Notice 421 of 2004 as amended in 2005 and 2007, read as follows: Section 6 “The appointment of an arbitrator shall be accompanied by a confirmation by such arbitrator accepting his appointment together with a declaration by him confirming his independence and impartiality in terms of section 23 of the Act.” Section 72 “(1) In case of breach of duty by an arbitrator in relation to the management of the arbitration proceedings, the Registrar [of the Centre] may issue orders in writing to the arbitrator who shall be bound to comply as soon as possible with such order. (2) The Board may request the Registrar to issue any such orders to any arbitrator if, when reviewing progress in any arbitration, the Board notes that any provisions of the Act, these rules or any guidelines are not being observed or that the arbitrator is failing to manage the arbitration process efficiently. (3) When an arbitrator fails to observe the orders of the Registrar issued in terms of this rule, the Registrar shall report on such circumstances to the Board and the Board shall determine what disciplinary action to take against the arbitrator. (4) In case of breach of the duty of independence by the arbitrator because of an undisclosed conflict of interest or because of irregular communication or otherwise, with one of the parties or any person on behalf of a party, the Registrar shall make a written report to the Board copied to the arbitrator and to the parties and the Board shall decide what actions are to be taken. (5) In cases referred to above, the Board shall determine the issue after giving the arbitrator the opportunity of being heard and after considering such other evidence as may be appropriate. (6) In such cases the Board has the power to take such disciplinary action as it considers appropriate in view of the circumstances. The powers of the Board include: (a) the issuing of orders in relation to the proceedings; (b) the removal of the arbitrator from the arbitration; (c) the removal of the arbitrator from the domestic panel of arbitrators, and (d) the imposition of a disqualification to act as an arbitrator in Malta for a stated period not exceeding three years. (7) Action taken in terms of this rule by the Centre shall be without prejudice to any rights of the parties under applicable law. (8) Nothing in the foregoing rule shall limit the rules applicable to the challenge of arbitrators in the Act.” By means of Act IX of 2010 a number of amendments to the Arbitration Act were passed by Parliament, improving the guarantees applicable to arbitration. However, the Minister retained the power of introducing such amendments at later stages by means of a legal notice. On the date of the last correspondence with the applicant, namely 14 June 2011, these amendments had not yet come into force.
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train
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001-77578
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ENG
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RUS
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CHAMBER
| 2,006
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CASE OF KESYAN v. RUSSIA
| 3
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Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-1 and P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
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Christos Rozakis
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4. The applicant was born in 1952 and lives in the town of Sochi, in the Krasnodar Region. 5. On 31 July 1998 the applicant sued the Rostov Regional Department of the Federal Treasury and Mrs O. in tort. A stamp on his statement of claims shows that the Kuybyshevskiy District Court of the Rostov Region received the statement of claim on the same day. According to the Government, the District Court received the statement of claim on 5 August 1998 and listed the first hearing for 22 September 1998. 6. On 22 September 1998 the hearing was adjourned due to the judge's leave. The following hearing on 28 December 1998 did not take place because of the defendants' absence. 7. On 11 February 1999 the District Court ordered an expert study and stayed the proceedings. The experts' report was received by the District Court in September 1999. 8. In October 1999 the applicant's representative amended the claims and asked the District Court to resume the proceedings and to question witnesses. The applicant then again amended the claims in November 1999. 9. On 25 November 1999 the District Court resumed the proceedings and summoned witnesses. 10. Between 25 November 1999 and 3 October 2000 the District Court listed eight hearings, of which three were adjourned because the defendants defaulted and five were postponed because none of the parties attended. 11. On 3 October 2000 the District Court adjourned the proceedings because the applicant appeared to have lost interest in the case. The applicant's representative objected to that decision, indicating that neither he nor the applicant had been duly apprised of the hearing dates. 12. On 12 July 2001 the District Court quashed the decision of 3 October 2000 and resumed the proceedings, having found no evidence that the applicant and/or his representative had been duly notified of the hearings. 13. Upon the applicant's request, on 10 October 2001 the District Court adjourned the proceedings because a similar claim was pending before another court. The proceedings were resumed on 30 September 2002. 14. Between 30 September and 20 December 2002 three hearings were adjourned because the parties did not attend. 15. On 20 December 2002 the District Court suspended the proceedings by reason of the applicant's repeated failure to appear. The proceedings were then resumed on 23 January 2004 once it had been discovered that the applicant and his representative had not been duly summoned to the hearings. 16. Of the ten hearings listed between 20 February and 16 November 2004, four hearings were adjourned due to Mrs O.'s absence, two hearings due to the parties' absence, one upon the applicant's representative's request and two because the presiding judge was on leave. 17. On 16 November 2004 the Kuybyshevskiy District Court dismissed the applicant's claim. On 16 February 2005 the Rostov Regional Court quashed the judgment of 16 November 2004 and remitted the matter for a new consideration by the District Court. 18. The Kuybyshevskiy District Court listed the first hearing for 18 May 2005. Of the three hearings fixed between 18 May and 28 June 2005, two were adjourned because the defendants defaulted and one was postponed upon the defendants' request. 19. On 28 June 2005, upon the applicant's request, the District Court ordered an expert study and stayed the proceedings. 20. The proceedings were later resumed and on 15 December 2005 the Kyubyshevskiy District Court partly allowed the applicant's action. The judgment of 15 December 2005 was upheld on appeal by the Rostov Regional Court on 28 February 2006. 21. On 8 August 1996 the applicant transported goods in his car from Ukraine to Russia and crossed the border without declaring the goods at the Russian customs. On the same day policemen of the Rostov Regional police department stopped the applicant and seized his car due to a violation of customs regulations. On 16 October 1996 the Taganrog town customs issued a confiscation order in respect of the car and organised its sale in November 1996 through a private company. 22. The applicant brought an application to a court seeking invalidation of the confiscation order of 16 October 1996. On 29 June 1999 the Taganrog Town Court quashed the confiscation order of 16 October 1996 and held that the Taganrog town customs should return the car to the applicant. The judgment did not become final as the town customs appealed against it. 23. On 2 July 1999 the Taganrog Town Court issued a charging order over the car with a view to preventing it from being sold, holding that the car should be seized and returned to the applicant. The charging order was binding, enforceable and addressed to any current holder of the applicant's car. 24. On 5 July 1999 the applicant's representative handed over the charging order of 2 July 1999 to the bailiffs. The covering letter of 5 July 1999 listed a writ of execution of 2 July 1999 as an enclosure and bore a stamp of the Taganrog Town bailiffs' service. 25. In July 1999 the bailiffs established that the private company had sold the car to Mr S. in 1996. However, they did not impound the car. 26. On 21 June 2000 the Rostov Regional Court quashed the judgment of 29 June 1999 and remitted the matter concerning the confiscation order of 16 October 1999 for a fresh examination. The charging order of 2 July 1999 remained unaffected. 27. On 26 September 2000 the applicant successfully amended his claims. He dropped his claims against the Taganrog town customs and sought repossession of his car from Mr S. 28. In October 2000 a bailiff asked Mr S. about the location of the car. A written statement by Mr S. read as follows: “I use [the car] for transportation of goods from Moscow to Rostov. It is kept at my house in the town of Azov, the address: Yuzhnaya street, 4, in the territory of MTP “Ikar”. The car is now in Moscow but it will come back around Monday...” 29. In October, November and December 2000 the bailiffs ordered that Mr S. produce the car to the Taganrog town bailiffs' office. Mr S. did not respond. 30. On 20 November 2000 the Taganrog Town Court adjourned the enforcement proceedings, upon Mr S.'s request. That decision was quashed by the Rostov Regional Court on 14 February 2001. The matter was remitted for a fresh examination to the Town Court and the enforcement was resumed. 31. In October 2001 Mr S. asked the local road police department to cancel the car registration on the ground that it would be sold to a purchaser in Ukraine. 32. In November 2001 Mr S. informed the bailiffs that the car had been sold. The bailiffs, in their turn, told the applicant that the car had been sold and that Mr S. had refused to inform them who had bought the car. They asked whether the applicant would be willing to pay for the search of the car. The applicant agreed to bear the costs. 33. On 10 January 2002 the Taganrog Town Court issued a judgment by which Mr S. should return the car to the applicant. On 28 February 2002 a writ of execution was issued. The applicant submitted it to the bailiffs and asked them to calculate an approximate cost of the search. On 15 March 2002 enforcement proceedings were instituted, but the applicant's request for the calculation remained unanswered. 34. In July 2002 Mr S. bought a new car and asked the road police department to have it registered. A copy of the request indicated Mr S.'s home address. 35. On 27 December 2002 the enforcement proceedings related to the judgment of 10 January 2002 were discontinued because the bailiffs could not, allegedly, find Mr S.'s residence or the vehicle. 36. On 1 April 2003 the Taganrog Town Court ordered the bailiffs to impound three cars belonging to Mr S. with a view to enforcing the judgment of 10 January 2002. According to the Government, the bailiffs began searching for the cars on 24 October 2003, but never completed it because the applicant had refused to advance payment. 37. On 29 May 2003 the Taganrog Town Court, upon the applicant's request, ordered that Mr S. pay the applicant 462,384 Russian roubles (RUR) in lieu of the car. The judgment became final on 10 June 2003 and on 2 July 2003 enforcement proceedings were instituted. 38. In June 2003 Mr S. applied for renewal of his passport. His passport application listed his unchanged place of residence. On 16 August 2003 Mr S. received the passport. 39. In September 2003 the bailiffs, in the enforcement proceedings related to the judgment of 29 May 2003, issued a decision stating that Mr S. did not have any property and that the place of his residence was unknown. 40. In January 2004 the applicant received a calculation of the advance payments for the search of Mr S.'s property. He was to advance RUR 50,000 (approximately EUR 1,500). 41. In 2005 the applicant asked a prosecutor's office to institute criminal proceedings against Mr S. for his failure to abide by an enforceable judicial decision. In March, July and August 2005 an investigator questioned Mr S. Criminal proceedings were not instituted. The prosecutor's documents listed the same place of Mr S.'s residence as in 2002 and 2003. 42. On 3 October 2005 the bailiffs initiated the search of Mr S.'s property without any advance payment by the applicant. It appears that the enforcement proceedings are still pending. 43. On several occasions the applicant complained to the courts about the bailiffs' failure to enforce the charging order of 2 July 1999 and the judgments of 10 January 2002 and 29 May 2003. 44. On 22 November 2001 the Taganrog Town Court dismissed one complaint, finding that the bailiffs had acted properly, that they had known that Mr S. had purchased the car but had no reason to doubt that Mr S. had not been willing to return it. The bailiffs could not be held liable for the sale of the car by Mr S. 45. On 12 February 2003 the Azov Town Court dismissed another complaint, holding that the decision of 27 December 2002 (by which the enforcement proceedings in respect of the judgment of 10 January 2002 had been discontinued) had been lawful because it had been impossible to locate Mr S. or his property. Although on 14 November 2001 the applicant had agreed to pay for the search of Mr S.'s property, the costs had not yet been calculated. The judgment of 12 February 2003 was upheld on appeal on 9 April 2003. 46. On 13 November 2003 the Azov Town Court dismissed the applicant's complaint about the bailiffs' failure to enforce the judgments and to provide him with the calculation of the costs for the search of Mr S.'s property. The court held: “From the contents of the applicant's complaint about the acts (failures to act) of the bailiffs... it does not appear what rights or lawful interests have been violated and whether any damage has been caused, the complaint is unsubstantiated and may not be granted.” 47. Article 87 of the Russian federal law “on enforcement proceedings” (Law no. 119-FZ of 21 July 1997) provides for certain measures which the bailiffs may take when private persons or public officials fail to comply with lawful orders, provide false information about a debtor's income and financial status, do not inform a bailiff about the debtor's dismissal from work, a change of the debtor's places of work or residence or when they do not respond to the bailiff's summonses. These measures include a fine of up to 100 minimum wages, escorting a defaulting party by force to a place where enforcement actions are performed and institution of criminal proceedings.
| 1
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train
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001-81801
|
ENG
|
RUS
|
CHAMBER
| 2,007
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CASE OF TREPASHKIN v. RUSSIA
| 3
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Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 3 (conditions of detention);Remainder inadmissible;Non-pecuniary damage - financial award
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Christos Rozakis
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7. The applicant is a lawyer and a former officer of the Federal Security Service of the Russian Federation (FSB). At the time of the events giving rise to the application, he was the subject of an unrelated criminal investigation conducted by the Chief Military Prosecutor concerning the period of his service in the FSB (criminal case no. 1). From March 2003 the applicant was under an obligation not to leave his permanent place of residence without the permission of the prosecution or the court. 8. On 22 October 2003 in the evening the applicant was returning from a meeting with the officials of the police department of the town of Dmitrov, in the Moscow Region, where he was assisting his client as a lawyer. The applicant's car was stopped by the traffic police on a road. The police searched his car, nothing suspicious being discovered there. A few minutes later the policemen repeated the search, now in the presence of two attesting witnesses. This time a handgun with ammunition was discovered on the back seat of the applicant's car. The applicant was questioned about this gun; he asserted that it did not belong to him. He also informed the policemen that he was a lawyer and showed his lawyer's identity card. At about 7 p.m. the police opened a criminal investigation into these facts (criminal case no. 2). The applicant was placed in Dmitrov detention centre. 9. In the morning of 24 October 2003, at the investigator's request, the Dmitrov Town Court ordered the applicant's pre-trial detention on the grounds that he was suspected of committing a criminal offence punishable under Article 222 of the Criminal Code (unlawful possession of firearms and ammunition) by up to six years' imprisonment and that there was a risk that he might abscond, interfere with the course of justice or continue his criminal activities. The court also stated that at the time of his arrest the applicant was already the subject of another criminal investigation in the context of criminal case no. 1. 10. The applicant appealed, stating, inter alia, that the Town Court, in finding the detention to be lawful, had failed to give any reasons for its finding. The applicant further alleged that the gun had been planted by the police and maintained that he would never keep a loaded gun in a car which he used to drive his children to school every morning. He also noted that he had five under-age children and that there was therefore no reason to believe that he would go into hiding. He further submitted that he represented clients in forty pending cases and that his arrest would be prejudicial to their interests. Finally, the applicant pointed out that the special procedure for authorising the detention of lawyers had not been followed in his case. He asked the Regional Court to examine his appeal in his presence. 11. On 27 October 2003 the Dmitrov Town Court, after a preliminary examination of the facts of the case, authorised the opening of criminal proceedings against the applicant in connection with the discovery of the gun in his car on 22 October 2003. On the same day the applicant's lawyer lodged an appeal against the detention order of 24 October 2003. In the grounds of appeal he stated, inter alia, that the applicant, as a lawyer, could not have been arrested and then placed in custody without a preliminary court decision authorising his criminal prosecution. 12. On 31 October 2003 the applicant was formally charged under Article 222 § 1 of the Criminal Code. On the same day the Moscow Regional Court examined the appeal against the detention order. Before the court the applicant was represented by one of his lawyers, Mr M. With reference to Articles 44750 of the Code of Criminal Procedure, the Regional Court quashed the detention order of 24 October 2003. The appeal court stated that the applicant, as a lawyer, could have been placed in detention on remand only after a separate court decision initiating criminal proceedings against him or authorising investigative measures in respect of him. In the present case there had been no such decision when the court had ordered his detention. The appeal court ordered the applicant's release and remitted the case to the first-instance court. However, the applicant remained in prison. He submitted that he had received a copy of this decision only on 11 November 2003. 13. On 4 November 2003 the applicant was transferred to the Volokolamsk detention centre. On the same day the Dmitrov town prosecutor applied to the Dmitrov Town Court, seeking an order for the applicant's detention on remand. 14. On 5 November 2003 the Dmitrov Town Court ordered the applicant's continued detention on the ground that he had been charged with a crime of medium severity and might abscond or interfere with the course of justice if released. The hearing took place in the presence of the applicant and two of his lawyers, Mr G. and Mr M. On the same day he was transferred back to the detention centre in Dmitrov. 15. The applicant appealed, repeating the arguments used during his first appeal and adding that, once refused, detention on remand could not be ordered for a second time on the same grounds. The applicant also submitted that neither he nor one of his lawyers, Ms L., had been notified about the hearing and that they had been unable to present their arguments. He also indicated that the Moscow Regional Court's decision of 31 October 2003 ordering his release had still not been executed. 16. On 13 November 2003 the Moscow Regional Court, in the presence of the applicant's lawyers, upheld the first-instance court's decision of 5 November 2003 and sanctioned the applicant's continued detention on remand pending pre-trial investigation. 17. At the end of November the bill of indictment in criminal case no. 1, together with the case file, was forwarded to the Moscow Circuit Military Court. On 1 December 2003 the applicant was transferred to a detention centre in Moscow. On the same day the Moscow Circuit Military Court ordered the applicant's pre-trial detention in the context of criminal case no. 1. 18. On 19 December 2003 the Dmitrov Town Court dismissed a request by the investigator for prolongation of the applicant's detention on remand in the context of criminal case no. 2. However, the applicant remained in custody pursuant to the detention order made by the Moscow Circuit Military Court on 1 December 2003. 19. On 14 January 2004 the defence complained to the Dmitrov Town Court about the period between 31 October and 5 November 2003, when the applicant had been detained without any valid grounds. It is unclear whether this complaint has ever been examined by the court and what the outcome of the examination was, if there was one. 20. On 19 May 2004 the Moscow Circuit Military Court gave judgment in criminal case no. 1. The applicant was found guilty and the court sentenced him to four years' imprisonment in an open colony (колонияпоселение). On 9 September 2004 the Military Division of the Supreme Court of the Russian Federation upheld the judgment. 21. As regards criminal case no. 2, on 15 April 2005 the Dmitrov Town Court found the applicant guilty of unlawful possession of firearms, found in his car on 22 October 2003. The Town Court rejected the applicant's contention that the gun had been planted by the policemen. 22. The applicant appealed. On 1 July 2005 the Moscow Regional Court acquitted him. The Regional Court found that the fact that the bag with the gun had been found in the applicant's car did not necessarily mean that the gun had been put there by him. No fingerprints belonging to the applicant or traces of his sweat had been found on the bag or the gun. There was no evidence that the applicant had been in possession of the gun before his arrest or that he had put it in his car. Moreover, the policemen who had arrested the applicant had insisted that the bag had fallen from the back pocket of the driver's seat. However, a reconstruction of the offence showed that in the circumstances that had been physically impossible. 23. The Regional Court further noted that the Town Court had not accepted either the applicant's version or the account given by the prosecution. In its judgment it had put forward its own version as to how the gun had happened to be in the applicant's car. In particular, the Town Court had found that before leaving the car the applicant had hidden the gun under his cloak, and that during the search the gun had fallen on the floor of the car. However, that version was not supported by evidence, and, moreover, the court had exceeded its powers by extending the factual scope of the indictment. As a result, the applicant was found not guilty. 24. On an unspecified date the applicant brought proceedings claiming one million Russian roubles (RUR) for non-pecuniary damage on account of his unlawful detention between 22 October and 5 November 2003. On 26 September 2005 the Dmitrov Town Court found that the whole period of the applicant's detention on remand, until his acquittal, had been unlawful. As a result, the applicant was awarded RUR 75,000, to be recovered from the Federal Treasury. 25. That judgment was appealed against by the prosecution and by the applicant. On 24 November 2005 the Moscow Regional Court quashed the judgment of 26 September 2005. The Regional Court found that the judgment of the District Court had covered the whole period of the applicant's detention in the context of criminal case no. 2, whereas his civil claim had only concerned the period of his detention between 22 October and 5 November 2003. Furthermore, the Regional Court indicated that from 1 December 2003 the applicant had been in custody in connection with another criminal case (no. 1), which had ended with his conviction. Lastly, the Regional Court indicated that the District Court had failed to summon the representatives of the Federal Treasury. As a result, the case was referred to the Town Court for fresh consideration. 26. In the proceedings before the Town Court the applicant confirmed that his claim only concerned the period between 22 October and 5 November 2003. On 10 May 2006 the Town Court ruled in favour of the applicant. The Town Court found that the applicant's detention had been unlawful, awarding him RUR 30,000 in compensation for the non-pecuniary damage sustained. The applicant appealed, claiming that the award was too small. On 4 October 2006 the Moscow Regional Court upheld the judgment of 10 May, stating as follows: “... [The first-instance court correctly found that] from 22 October to 5 November 2003 the applicant was detained on remand unlawfully, since, by virtue of the decision of the Moscow Regional Court of 1 July 2005, the judgment of the Dmitrov Town Court [in respect of the applicant] ... was quashed, and the case was closed because the applicant had not been involved in the [alleged] crime. ... [The applicant] was fully rehabilitated in respect of the events which had served as a basis for his detention between 22 October and 5 November 2003...” The Regional Court concluded that the amount awarded by the Town Court was reasonable. 27. After his arrest on 22 October 2003 the applicant was placed in the detention centre in Dmitrov (изолятор временного содержания УВД г. Дмитров), about 70 km north of Moscow. On three occasions in the following five weeks the applicant was transferred to detention centre ИЗ 50/2, situated in Volokolamsk, about 130 kilometres west of Moscow, and then back to the detention centre in Dmitrov. According to the information provided by the Government, the applicant was kept in custody in the detention centre in Dmitrov from 22 October to 4 November 2003, then from 5 to 10 November, and from 14 to 21 November 2003. The Government further asserted that the applicant had been kept in custody in the detention centre in Volokolamsk from 4 to 5 November, from 10 to 14 November and from 21 to 28 November 2003. The Government did not indicate where the applicant had been detained between 28 November and 1 December 2003, when he had been transferred to detention centre ИЗ 77/1 in Moscow. According to the applicant, during these three days he was in the detention centre in Volokolamsk. 28. The parties submitted differing accounts of the conditions of detention in the detention centres of Dmitrov and Volokolamsk. 29. In his initial submissions to the Court the applicant described conditions in the detention centre of Dmitrov as follows: “The cell had a dirty wooden floor with puddles of mud ..., insects were everywhere, it was terribly chilly. I was not given a mattress or a chair or even a piece of paper. I had to rest on the wooden floor which was covered in faeces and the blood of crushed bugs. ... Because of the cold I had to remain standing for two days. I could not sleep. Then I cleaned up a place in a corner of the cell with my clothes and took a nap. 30 minutes later I woke up because bugs, lice and some other beasts were crawling over me. ... Since my arrest I have not been able to go for a walk outside the cell. The window is constantly shut and I've lost all sensation of time. Only once have I been brought before an investigator for questioning. ... There is no washbasin in the cell and I have to wash myself using the lavatory. ... My eyesight has become impaired because of the dull light in the cell.” 30. The applicant complained to the prosecutor in similar terms about the conditions of his detention. As a result, he was given a pail of water, washing liquid and a rag to wash the floor. 31. According to the information, provided by the Government, cell no. 7, where the applicant was detained, measures 6.6 square metres. It is equipped with a lavatory, a tap and a sink. The premises of the detention centre are centrally heated. The cell receives daylight during the day and is lit by an electric lamp at night. Upon his arrival at the detention centre the applicant was given bedclothes; however, he refused to use them “as a sign of his disagreement with his arrest”. In the evening of 23 October 2003 his relatives sent him the necessary bedclothes. 32. On 2 December 2003 the Dmitrov town detention centre was examined by a joint commission of the regional Department of the Interior and the Department of Sanitary Control. The inspection concluded that “the sanitary state of the cells is satisfactory, wet cleaning with disinfectants takes place every day; the ventilation is operational”. The commission also noted that the applicant had not been taken outside for a walk because the yard in the detention centre was under construction. 33. In his submissions in reply to those of the Government the applicant insisted that cell no. 7, where he was detained, was smaller than the Government indicated and, moreover, was not equipped with a washbasin. The water from the tap was evacuated through a lavatory drain (труба слива для унитаза), so, to wash himself, the applicant had had to lean over a stinking toilet pan. The toilet was located very close to the applicant's sleeping place, and there was no partition between them. The cell had no radiators or other heating devices; instead, a pipe with warm water passed along the wall. In the applicant's words, the pipe provided only enough heat to warm his hands on it. 34. The applicant further indicated that there had been only one small grilled window in the cell, and there had been no glass in it. In order to keep some warmth within the cell, the grill covering the window was papered over. The applicant did not dare to take the paper off because it was too cold outside. Consequently, there was no natural light in the cell; during the whole period of his detention in Dmitrov the applicant had to read and write by the dull light of an electric lamp. As a result, the applicant's eyesight deteriorated. 35. On 7 November 2003 the applicant complained to the investigator about the absence of any natural light in his cell. The applicant asked to be examined by an ophthalmologist, but his request was refused. Instead, the head of the detention centre recommended that the applicant take “blackberry pills”, which could be procured by his relatives. The applicant indicated that in May 2004 he had undergone an examination by a doctor in detention centre ИЗ 77/1, which revealed the impairment of his eyesight by 0.5 dioptres. 36. On 10 November 2003 the applicant wrote a new complaint to the investigator. He asserted that over the 19 days of his detention he had not been taken out of his cell for outdoor exercise. As a result, his asthma had deteriorated, and he had to use his inhalation spray six times a day, whereas in principle it should not be used more than twice a day. 37. As regards living essentials, the applicant insisted that the detention centre was not equipped with any bedclothes, mattresses or pillows. The Government's assertion that the applicant had refused to take the bedclothes “as a sign of his disagreement with his arrest” he qualified as a blatant lie. In the applicant's words, if a detainee refused to take any objects for personal use provided by the detention centre, that fact was always recorded in a special register. He insisted that after his arrest he had not been provided with any bedding at all. Moreover, on 23 October 2003 the police investigator Mr Z. had confiscated all his clothes; the applicant had been left in the unheated cell in his underwear. Only in the evening of 23 October 2003 had the applicant's wife managed to provide him, through the head of the detention centre, Mr Y., with a pillow, two blankets and a jogging suit. 38. The applicant maintained his initial submissions that cell no. 7 had been full of parasites. The inspection of that cell, referred to by the Government, had taken place on 2 December 2003, more than a month after the applicant had been placed there, and ten days after he left that detention centre. Consequently, that inspection could not have revealed the real situation existing at the moment of the applicant's detention. In support of his assertions the applicant referred to an article published in the daily newspaper Kommersant shortly after his arrest. In that article the applicant's lawyer, Mr G., testified that in the morning of 22 October 2003 he had visited his client (the applicant) in the detention centre in Dmitrov. Mr G. had said to a journalist: “That night [the applicant] got lice and some other insects, they were crawling over him while we were talking. The cell where he is detained is so dirty that he cannot even sit there.” 39. In his initial submissions to the Court the applicant described the conditions of his detention in Volokolamsk as follows: “In a cell measuring 18 square metres I'm detained with 20 other people, including one mentally ill person (schizophrenic). There is not enough space for sleeping and two people have to sleep on the same bed. There are bugs, lice and cockroaches in the cell. The facility for walking is very small. 20 people can scarcely fit in it, and it is impossible to breathe normally even during the walk because others are constantly smoking. I have bronchial asthma of medium severity and it has lately worsened. I have very severe chest pains. I sent a request for a medical examination to the investigator Sh., but he did not reply. The investigator also rejected my request for an eye test. Because of the shortage of spoons and mugs we have to use them in turns. I still cannot obtain from the administration a spoon, a mug, and a bowl for my own use, or a bed sheet, a pillowcase or a blanket.” 40. On 1 December 2003 the applicant wrote a letter to the Ministry of Justice describing the conditions in the detention centres in Dmitrov and Volokolamsk. He repeated his complaints about the overcrowding in the cell and the lack of living essentials available to the detainees. In his submission, on certain days the number of detainees amounted to 25 people, and they had to take turns to sleep. The detainees slept on four metal shelves stacked on top of each other, which were very short and uncomfortable. The mattress he was provided with looked like a filthy rag with stains of urine. The padding inside the mattress became so matted that it felt like sleeping on a pile of stones. Although the cell was full of lice, the administration did not provide the detainees with insecticides and prohibited their use in the cell. He was afraid of being infected with an insect-borne disease. 41. He also complained that on several occasions in the course of being transported to another detention centre or the court he had been placed in a very small room (70 x 120 cm) without light, water or food. He had been kept in this room for up to eight hours, without being able to stretch his legs while sitting. This room was not equipped with a lavatory, and, owing to the understaffing of the detention centre, the applicant had to wait two hours to be taken to the toilets. 42. According to the information provided by the Government, upon his arrival at detention centre ИЗ 50/2 the applicant was examined by a doctor. The Government produced a medical certificate, issued by the prison administration, which stated that “following a visual examination, no signs of bronchial asthma were detected”. According to this certificate, the applicant had no asthma attacks during his detention and his eyesight did not deteriorate. 43. In the detention centre in Volokolamsk the applicant had been placed in cell no. 101, measuring 20 square metres, and allocated for former officials of State law-enforcement agencies. This cell was equipped with a lavatory, a shelf for storing foodstuffs, and a sink with hot and cold running water. During the applicant's detention the number of his cellmates varied from 14 to 20. On 20 October 2003 the administration of detention centre ИЗ 50/2 carried out an inspection of this cell. The administration concluded: “The sanitary condition of the cell is in accordance with established standards, the plumbing and water supply are operational, no synanthropic arthropods were detected.” 44. The Government further indicated that the applicant had been provided with all living essentials. In support of this assertion, the Government produced a special register in which the administration of the detention centre recorded objects given to detainees. According to this register, on 5 November 2003 (the day he was first transferred to the detention centre in Volokolamsk) the applicant had received a mattress, a pillow, a blanket, a pillowcase, two bed sheets, a bowl, a spoon and a mug. On 10 November 2003, when the applicant was transferred to the detention centre in Volokolamsk again, he had received the same objects. He had returned them to the administration on 14 November 2003. 45. The applicant produced medical certificate no. 1259, issued on 2 June 2000 by the Central Military Medical Commission. According to this document, the applicant had suffered from bronchial asthma of medium severity and had normal visual acuity. According to the applicant, upon his arrival at the detention centre in Volokolamsk he had been questioned by a doctor about his medical history. The applicant had complained of asthma attacks and the impairment of his eyesight; in reply the doctor had said that he had no appropriate medication for treating asthma and that the applicant's relatives should procure it themselves. He stated that the only examination he had undergone was a fluorography, and in those circumstances it was little wonder that the doctor had detected no signs of bronchial asthma. 46. In the following days the applicant repeated his request to be examined by an ophthalmologist, but received no reply. The applicant broke his tooth, because in the detention centre he was given only stale rye bread; he sought to see a dentist but to no avail. Moreover, the administration refused to allow the applicant to be examined by a doctor invited by the NGO “For Human Rights”. 47. As regards conditions in cell no. 101, where he had been detained, the applicant challenged the account given by the Government. In his submissions, the cell measured about 16 to 18 square metres and contained up to 25 people, and never fewer than 22. The applicant named his cellmates who could confirm this fact. The cell had no shelves: instead, four sleeping berths were used for storage of food and personal belongings of the detainees, their clothes, shoes and so on. Hot water was available only occasionally, and for very short periods of time, so the detainees had time only to wash crockery, underwear and bedclothes. There was no place to dry the linen, so the applicant had to sleep on wet bed sheets. The “lavatory” mentioned by the Government was in fact a hole in the floor of the cell, which was not separated from the living space, so the odour of faeces was very disturbing. After having used the toilet the inmates had to burn a piece of paper so the smoke attenuated the putrescent scent of faeces, but, at the same time, this caused the applicant severe headaches. The distance between the table at which the detainees ate and the “lavatory” was no more than 1.5 metres, and the washbasin was located just above it. The applicant admitted that on 20 October 2003 the cell had been disinfected; however, on 4 November 2003, when he had been placed there, it had been full of lice and fleas again. Apparently the parasites in the mattresses and bedclothes had escaped disinfection. During his detention in Volokolamsk, the cell had not been cleaned a single time. 48. Upon his arrival at the detention centre in Volokolamsk, the applicant had received a mattress and a bed sheet. In his submission, the mattresses given to the newly arrived inmates were not cleaned, even if their previous owners had suffered from tuberculosis or other contagious diseases. The applicant was not provided with a bowl, a mug or a spoon; the administration had promised him to give the crockery as soon as it was available. He insisted that his signatures in the register produced by the Government were forged and that he had never received any crockery from the administration. Moreover, the register contained no information about the third period of the applicant's detention in Volokolamsk, namely between 21 November and 1 December 2003, so there was no proof that the applicant had been provided with any living essentials at all during this period. 49. As regards the conditions and timing of his transfer to that detention centre, the applicant insisted that its administration had distorted the facts. Thus, according to the prison administration, on 10 October 2003 he had arrived at the detention centre in Volokolamsk at about 2 p.m. In fact he had arrived there at about 9 a.m. and spent 8 hours in a humid room made of concrete, without food or light. The same had occurred on 21 November 2003. 50. The applicant produced written statements by a number of his cellmates concerning the conditions of detention at the detention centre in Volokolamsk in 2003 and 2004. Thus, Mr Potapov was detained in cell no. 101 in November 2003. Mr Potapov confirmed that the cell had been heavily overcrowded: sometimes up to 25 inmates were detained there. The cell-mates had to take turns to sleep and there was not even enough space to for all of them to sit down. Furthermore, the cell had been full of insects (ticks, lice and cockroaches). Medical aid had been denied to the detainees. 51. The Government disputed those allegations. According to the Government, cell no. 101 complied with sanitary, epidemiological and hygiene standards. Each detainee had an individual sleeping berth, the plumbing and water supply systems were operational, and no vermin had been detected. The Government produced a written statement by Mr Potapov of 23 December 2003, addressed to the chief officer of the detention centre. In that statement Mr Potapov asserted that “[the applicant] had his individual sleeping berth, ... he often complained about the regime of detention, reacted extremely negatively to the requirements of the administration [of the detention centre], and always had conflicts with the officers of the special department”. 52. Pursuant to Article 222 of the Criminal Code, the unlawful acquisition, transfer, sale, storage, transportation or carrying of firearms, basic parts of firearms, ammunition, explosives, or explosive devices is punishable by restraint of liberty for a term of two to four years, or by arrest for a term of up to six months, or by deprivation of liberty for a term of up to three years, with a fine amounting to 200 to 500 times the minimum wage, or amounting to the wages, salary or any other income of the convicted person for a period of two to five months, or without any fine (paragraph 1). The same acts committed by a group of persons in a preliminary conspiracy, or repeatedly, are punishable by deprivation of liberty for a term of two to six years (paragraph 2). 53. Under Article 91 (“Grounds for arresting a suspect”) of the Criminal Procedure Code (“the Code”), the police may arrest a person suspected of having committed an offence punishable by imprisonment if the person is caught in the act or immediately after committing the offence. No judicial authorisation of the arrest is required. 54. Pursuant to Article 94 (“Grounds for releasing a suspect”), within forty-eight hours from the time of the arrest, a suspect must be released if a measure of restraint in the form of custody has not been imposed on the person or a final decision has not been deferred by a court under Article 108 (paragraph 6, subparagraph 3) of the Code. When imposition of custody as a measure of restraint is deemed to be necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator or inquiry officer with the consent of a prosecutor. 55. Pursuant to Article 108 (“Taking into custody”), taking into custody as a measure of restraint is to imposed by a court decision on a person accused or suspected of having committed an offence punishable under criminal law by imprisonment for a term exceeding two years, if it is impossible to use a different, milder measure of restraint. 56. If a judge's ruling to take the suspect into custody as a measure of restraint or to extend the custody period does not arrive within forty-eight hours from the moment of the arrest, the suspect must be released immediately, and the head of the custody facility in which the suspect is held must notify the inquiry agency or the investigator in charge of the proceedings in the criminal case and the prosecutor about such release. If a court finding or ruling exists that denies an investigator's application to order a measure of restraint in the form of custody for a suspect, a copy of that ruling must be provided to the suspect when he is released. 57. By Article 97 (“Grounds for imposing a measure of restraint”), a court is empowered to impose a measure of restraint (that is, custody) on a suspect, provided that there are sufficient reasons to believe that the suspect (1) might abscond during the inquiry, pre-trial investigation or trial; (2) might continue to engage in criminal activities; or (3) might threaten a witness or other participants in the criminal proceedings, destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case. 58. Under Article 98 (“Circumstances to be considered in imposing a measure of restraint”), the circumstances to be taken into account when imposing a measure of restraint include, apart from those specified in Article 97 of the Code, the seriousness of the charges brought and the defendant's personality, age, health, family status, occupation and other circumstances. The judge's ruling is to be forwarded to the person who has lodged the application, the prosecutor, and the defendant (suspect), to be executed immediately. Under Article 108, a second application for a person to be taken into custody in the same criminal case after one such application has been denied by a judge's ruling may be lodged with the court only if new circumstances emerge that justify the need to take the person into custody. A judge's ruling to take or not to take a person into custody may be appealed against to a higher court within three days from the date on which the ruling was given. A judge of the appellate court (кассационная инстанция) must give a decision on such complaint or representation within three days from the date of receiving it. 59. Pursuant to Article 447 of the Criminal Procedure Code, a special procedure is to be applied in criminal cases with respect to lawyers (адвокат). By Article 448 (“Initiation of criminal proceedings”), a prosecutor takes the decision to initiate criminal proceedings against a lawyer. Such a decision is subject to approval by a judge. Article 449 prohibits the arrest of MPs, judges, prosecutors and certain other categories of State officials, unless they have been caught at the scene of the crime. However, lawyers are not immune from “arrest”. 60. Under Article 450 § 5 (“Special features of imposing measures of restraint and conduct of individual investigative measures”), if there was no court decision authorising the criminal prosecution of a lawyer, the court should give its authorisation for investigative measures to be taken in respect of the lawyer. 61. The Civil Code of the Russian Federation provides as follows: “1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies...” “Compensation for non-pecuniary damage shall be made irrespective of the fault of the person causing the damage when: ... the damage is caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, unlawful detention on remand...” 62. The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain etc.). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by the unlawful acts of law-enforcement agencies. For example, point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given...”. These words, as well as the subsequent judicial practice, suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” as such. Therefore, if there was an acquittal, detention on remand would be “unlawful” even if all the substantive and procedural rules were complied with when it had been imposed.
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