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train
|
001-75213
|
ENG
|
ITA
|
CHAMBER
| 2,006
|
CASE OF SANNINO v. ITALY
| 1
|
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
|
Alvina Gyulumyan;John Hedigan;Lucius Caflisch;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky
|
4. The applicant was born in 1950 and lives in Casoria. 5. On 12 December 1992 the applicant and two others, all of whom were charged with fraudulent bankruptcy, were committed for trial in the Naples District Court. After numerous adjournments on account of failure to serve proper notice or lawyers’ strikes, a hearing was held on 23 September 1997. At the hearing the lawyer retained by Mr Sannino produced a list of witnesses he wanted to be summoned to appear in court. They were mainly people who would say that the applicant had been less directly involved in the management of X, a commercial company, after February 1989. The president of the court granted the request. 6. At a hearing on 18 November 1997, Mr Sannino was represented by a different lawyer of his choosing, Mr G., whom he had retained on 13 September 1996. Mr G. produced the list of witnesses again. The court again granted leave for the persons named in the list to be summoned. A number of witnesses were examined on 3 November 1998 in the presence of the applicant and Mr G. 7. In a note deposited with the registry of the Naples District Court on 18 January 1999, Mr G. announced that he was withdrawing from the case. He said that the applicant had been informed accordingly by registered letter sent on 18 January 1999. On 19 January 1999 the court assigned the applicant a defence lawyer, Mr B. 8. On 25 January 1999 Mr B. was informed of the date of the next hearing (17 February 1999). The note he received did not, however, mention that he had been officially assigned to represent Mr Sannino. No notification was sent to Mr Sannino. 9. Mr B. did not appear at the hearing on 17 February 1999, but the applicant did. The court ordered Mr B. to be replaced by another official defence lawyer, Mr M., and adjourned the case to 16 March 1999. 10. On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr A. One of the witnesses called by the prosecution was examined by the prosecution’s representative and cross-examined by the lawyer of one of the applicant’s co-defendants. The court adjourned the proceedings to 5 May 1999 and ordered the other witnesses to be summoned. 11. On that date Mr B. again failed to appear, but the applicant was present. The court ordered Mr B. to be replaced by another official defence lawyer, Mr O. Mr Sannino made a number of spontaneous statements. A witness called by the prosecution was examined. Having regard to the absence of two other prosecution witnesses, the court adjourned its examination of the case to 16 June 1999. The hearing was not held on that date and the proceedings were adjourned on account of the European parliamentary elections. 12. Further hearings were held on 2 November and 17 December 1999 and on 18 January and 29 March 2000, to which the witnesses on the applicant’s list were not summoned. Mr B., who had still not appeared, was replaced by a different court-appointed defence lawyer each time. 13. The record of the hearing on 2 November 1999 mentions that the applicant was present, which the applicant himself denies. He states that he attended his trial for the last time on 5 May 1999 and that after the adjournment of 16 June 1999 he was not notified of the date of the next hearing (2 November 1999). A notice of hearing had in fact been issued to a person who did not have authorisation (persona non abilitata) to receive notices. The Government produced a note (relata di notifica) before the Court, drawn up by a court bailiff, according to which notice of the hearing on 2 November 1999 had been served personally on 23 July 1999 on a person identifying himself as Giuseppe Sannino. The applicant maintains that the signature appearing on the note is not his and that on 23 July 1999 he was not at home, but at the Monteprandone Hotel in San Benedetto del Tronto, as had been proved by his lawyer in the appeals lodged after his conviction. Furthermore, he alleges, the indication that the notice of hearing was served on him personally was added by the court bailiff more than five years after the material time, “at the request of the office of the co-Agent at the Permanent Representation of Italy”. 14. A final hearing was held on 12 April 2000. Neither the applicant nor Mr B. appeared. Mr B. was replaced by a court-appointed lawyer. Witnesses were examined. 15. In a judgment of 12 April 2000, the text of which was deposited with the court’s registry on 19 April 2000, the Naples District Court sentenced the applicant to two years’ imprisonment. 16. The applicant was not officially informed that the judgment against him had been deposited with the registry. He submits that, not having been aware of the conviction, he was unable to avail himself of his right to appeal within the statutory thirty-day period. 17. He claims that he did not learn of his conviction – which had become final on 29 May 2000 – until 11 May 2001, when he asked for a copy of his criminal record. 18. The applicant also learnt that Mr B. had been appointed to represent him, whereupon he contacted him. 19. Through Mr B. the applicant lodged an application on 15 November 2001 for leave to appeal out of time. He claims that the notice of the date of the hearing of 2 November 1999 was void on the ground that the court bailiff’s report did not refer to the standing of the person on whom it had been served. Moreover, Mr B.’s appointment was – he alleges – unlawful because his name did not appear on the list of official defence lawyers. In any event Mr B. had never been informed of his appointment. In the applicant’s submission, the time-limit for lodging an appeal had therefore never started running. 20. At the same time, again through Mr B., the applicant appealed against the judgment of 12 April 2000. He sought an acquittal on the merits and requested the investigation to be reopened for the purpose of hearing evidence from the witnesses indicated in the defence’s list. 21. By an order of 8 March 2002, the Naples District Court dismissed the application for leave to appeal out of time. It observed that the applicant referred to matters regarding the conduct of the trial at first instance that should have been raised prior to the date on which the judgment of 12 April 2000 had become final. Leave to appeal out of time was granted only where the convicted person proved that he had been prevented by a case of force majeure from taking certain steps within the statutory time-limit, and not where he alleged procedural defects. In those conditions it was not necessary to ascertain whether the facts of which the applicant complained were genuine. 22. On 29 March 2002 the applicant lodged an appeal on points of law. He alleged that the Naples District Court had wrongly construed the relevant provisions of domestic law, namely, Articles 175 and 670 of the Code of Criminal Procedure (“the CCP” – see “Relevant domestic law” below). He stated that, through no fault of his own, he had not been aware of the judgment. 23. In a judgment of 4 March 2003, the text of which was deposited with the registry on 26 March 2003, the Court of Cassation declared the appeal inadmissible. It observed that the applicant was complaining of flaws in the appointment of his court-appointed defence counsel and the service of the notice of the date of the hearing of 2 November 1999. Those flaws could have resulted in certain measures being annulled on grounds of procedural errors, but had been cured (sanate) when the conviction had become final. 24. On 29 April 2002 the Naples public prosecutor’s office ordered execution of the sentence imposed on the applicant by the judgment of 12 April 2000. Execution was stayed, however. 25. On 11 June 2002 the applicant requested the application of an alternative measure to detention, namely, probation (affidamento in prova al servizio sociale). By an order of 28 June 2005, the Naples Post-Sentencing Court granted the applicant’s request. On 5 September 2005 the applicant declared that he accepted the obligations stipulated in the probation order, namely, not to leave the district (comune) of Casoria without prior authorisation of the judge supervising enforcement of sentences; to devote himself fully to his work at the M. company; not to leave his house before 8 a.m. and not to return after 8 p.m; not to associate with reoffenders; and to report to the police station at least three times per week. 26. Article 175 §§ 2 and 3 of the CCP provides for the possibility of applying for leave to appeal out of time. The relevant parts of that provision were worded as follows at the material time: “In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no effective knowledge [effettiva conoscenza] [of it] ... [and] on condition that no appeal has been lodged by his lawyer and there has been no negligence on his part or, in the case of a conviction in absentia having been served ... on his lawyer ..., that he did not deliberately refuse to take cognisance of the procedural steps. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learnt [of the judgment], failing which it shall be declared inadmissible.” 27. The validity of a conviction may be contested by means of an objection to execution under Article 670 § 1 of the CCP, the relevant parts of which provide: “Where the judge supervising enforcement establishes that a judgment is invalid or has not become enforceable, he shall, [after] assessing on the merits [nel merito] whether the safeguards in place for a convicted person deemed to be untraceable have been observed, ... suspend its enforcement, ordering, where necessary, that the person be released and that defects in the service of process be remedied. In such cases the time allowed for appealing shall begin to run again.” 28. Under Article 97 §§ 1, 4, 5 and 6 of the CCP: “1. A defendant who has not appointed a lawyer of his own choosing or finds himself without one shall be assisted by a court-appointed defence lawyer. ... 4. Where defence counsel’s presence is necessary and [the lawyer] chosen by the defendant or the court-appointed lawyer ... has not been found, has not appeared or has withdrawn from the case, the judge shall appoint as his replacement another defence lawyer immediately available [reperibile], to whom the provisions of Article 102 shall apply [under that provision, the replacement lawyer exercises the rights of the defence counsel and is subject to the same obligations]. ... 5. The court-appointed defence lawyer shall defend his client [prestare il patrocinio] and shall not be replaced other than for a legitimate reason [giustificato motivo]. 6. The court-appointed lawyer shall cease to act if [the defendant] appoints a lawyer of his own choosing.” 29. A defence lawyer who has just been appointed may request an adjournment of the hearing date. Article 108 § 1 of the CCP provides, inter alia: “Where a defence lawyer withdraws from the case, has his appointment revoked or is incompatible or abandons the case, the defendant’s new lawyer or the court-appointed [defence lawyer] can request sufficient time [congruo], of no less than seven days, in which to study the file and acquaint himself with the facts of the case.” 30. In accordance with Article 148 § 5 of the CCP, the reading out of decisions to persons present in the courtroom and the information given to them orally by the judge “shall replace formal notice [sostituiscono le notificazioni], on condition that they are noted in the record of hearing”. 31. After production of the evidence requested by the parties, the judge may, if he considers it “absolutely necessary”, order that further evidence be adduced (Article 507 § 1 of the CCP).
| 1
|
train
|
001-57823
|
ENG
|
ITA
|
CHAMBER
| 1,993
|
CASE OF FIGUS MILONE v. ITALY
| 2
|
Preliminary objection allowed (out of time)
|
C. Russo;N. Valticos
|
7. Mrs Figus Milone, who used to work for a security firm, lives in Turin. On 26 October 1978 she brought proceedings against her former employer, the Istituto di Vigilanza company, in the Turin magistrate’s court (pretore) for unfair dismissal. 8. At the first hearing, on 28 November 1978, the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment. On 19 December 1978 he stayed the proceedings pending the decision of the Constitutional Court (Article 295 of the Code of Civil Procedure). The Constitutional Court gave judgment on 16 January 1987; the text of its judgment was filed at the registry on 22 January. 9. The applicant resumed the proceedings on 16 February 1987 and they ended on 28 May with a friendly settlement.
| 0
|
train
|
001-69606
|
ENG
|
SVK
|
CHAMBER
| 2,005
|
CASE OF KRUMPEL AND KRUMPELOVA v. SLOVAKIA
| 3
|
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
|
Nicolas Bratza
|
4. The applicants are spouses. They were born in 1935 and 1938 respectively and live in Bratislava. 5. In 1990 the applicants concluded a contract with M., the owner of a building company. M. undertook to sell a plot of land to the applicants and to build a family house for them. The applicants paid 600,000 Slovakian korunas (SKK) to M. 6. M. failed to comply with the contract. The applicants therefore revoked it on 28 January 1991. 7. On 5 February 1991 the applicants sued the company of M. before the Považská Bystrica District Court. On 26 April 1991 the court discontinued the proceedings as the applicants had not paid the court fee. 8. In 1991 criminal proceedings were brought against M. as he was suspected of fraud. The applicants declared that they wished to claim damages from M. in the context of the criminal proceedings. 9. On 18 August 1991 the applicants sued M. for damages before the Považská Bystrica District Court. On 16 March 1992 the District Court discontinued the proceedings. The decision stated, with reference to Article 83 of the Code of Civil Procedure, that the applicants had also claimed damages in the context of the criminal proceedings against M. and that those criminal proceedings were pending. On 25 May 1992 an appellate court dismissed the applicants’ appeal. 10. In the meantime, on 23 October 1991, a public prosecutor froze property of M.’s company, the value of which corresponded to SKK 2,185,000, with a view to securing the claims of 21 aggrieved persons. 11. On 28 December 1992 M.’s mother returned SKK 50,000 to the applicants. In a written statement of 10 February 1995 M. admitted his debt in respect of the applicants. 12. In 1996 the charges against M. were enlarged to comprise economic offences which had no bearing on the applicants’ claim and which the accused had allegedly committed in the context of the dissolution of the former Czech and Slovak Federal Republic. 13. Following the enlargement of the charges against M. his bank account was blocked in the context of the criminal proceedings. The Government submitted that the sum blocked amounted to SKK 8,885,006. The applicants submitted, with reference to an article published in a weekly, that the Bratislava Regional Prosecutor had given his consent, in 1997, to unblock the account in which approximately SKK 64 millions had been deposited. The article further states that most of the money had subsequently been transferred abroad. In another article published in the same weekly the General Prosecutor confirmed that he had intended to start disciplinary proceedings against the Regional Prosecutor in that regard. However, the prosecutor had resigned from his post. 14. On 11 February 1998 the Bratislava Regional Prosecutor indicted M. before the Bratislava Regional Court. On 21 June 1999 the Regional Court returned the case to the public prosecutor for further investigation. 15. On 14 September 2001, the applicants made a written submission to the Bratislava Regional Court which was dealing with the criminal charges against M. The Regional Court interpreted the submission as a civil claim for damages and transferred it to the Považská Bystrica District Court. 16. A new indictment against M. was filed with the Bratislava Regional Court on 3 December 2001. The indictment concerned numerous offences and, in addition to M., two other persons. 17. On 28 February 2002 the criminal judge decided to deal separately with several aspects of the case, including those which were relevant for the determination of the applicants’ claim. 18. On 13 August 2003 a Považská Bystrica District Court judge informed the applicants, in reaction to their above submission of 14 September 2001, that criminal proceedings against M. were still pending and that Article 83 of the Code of Civil Procedure prevented the court from dealing with a civil action for damages in the same case. The applicants were invited to inform the court whether they maintained their action and were instructed how to rectify formal shortcoming in their submission. 19. In a letter of 5 September 2003 the applicants replied that their above letter of 14 September 2001 had been meant for the judges dealing with the charges against M. and that they were aware that they could not have separate civil proceedings for damages brought against M. as the criminal proceedings against him were still pending. 20. In the meantime, on 14 March 2003, the applicants complained to the Constitutional Court about a violation of their right to a hearing without unjustified delay. 21. On 19 September 2003 the Považská Bystrica District Court judge informed the Constitutional Court about the contents of her above letter to the applicants of 13 August 2003. No reference was made to the applicants’ reply of 5 September 2003. 22. On 25 September 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision states: “It follows from ... the submission of the District Court that, at present, proceedings are pending before it upon the initiative of the [applicants]... The subject-matter of those proceedings is the claim for damages against [M.] which the applicants have also submitted in the context of the criminal proceedings before the Regional Court. The applicants therefore have, provided that they overcome the obstacle of litis pendens and bring their [civil] action in compliance with the formal requirements as instructed by the District Court, a different effective remedy at their disposal in the context of proceedings before a civil court... In the Constitutional Court’s view, an action for damages is an effective remedy in respect of [the applicants], as a [civil] claim for compensation by persons who have suffered damage may form the basis of their own case in respect of which (unlike persons who join criminal proceedings with a claim for damages) they enjoy the guarantee of ... a hearing without undue delay... It follows that the alleged failure of the Regional Court to proceed with [the criminal case against M.] speedily can have no bearing on the applicants’ constitutional right to a hearing without undue delay... In the circumstances, it is the applicants’ claim for damages which is to be considered as their case; determination of such a claim is not the purpose of the criminal proceedings and, in addition, the applicants can claim damages before a civil court provided that they comply with the statutory requirements...” 23. On 24 November 2004 the Bratislava Regional Court convicted M. in proceedings concerning the charges which were not related to the applicants’ claim. M. was sentenced to 10 years’ imprisonment and the court ordered him to compensate SKK 58 million to the Ministry of Finance. The convicted persons appealed and the proceedings are pending before the Supreme Court. 24. The Bratislava Regional Court is expected to start determining the remaining charges against M. (which concern fraud in respect of more than 20 individuals including the applicants) in the course of 2005. 25. Article 43(1) and (2) provides, inter alia, that a person who has suffered damage, as a result of a criminal offence, can claim compensation from the accused person and request that the court, in a judgment convicting the accused person, order the latter to compensate for such damage. 26. In criminal cases falling within the jurisdiction of regional courts, the court decides, according to the nature of the matter under consideration, whether or not an injured person should be allowed to participate in the proceedings (Article 44(2)). Such decision is taken, as a rule, at the main hearing. In accordance with the Supreme Court’s case-law, an injured party may be prevented from participating in the proceedings for important reasons only, for example where it is required for protection of a State secret. 27. Article 47(1) provides that a claim for damages may be secured, up to an amount corresponding to the estimated damage, on the property of the accused where a justified fear exists that compensation for damage caused as a result of an offence will be jeopardised or rendered difficult. 28. Pursuant to Article 228(1), where a court convicts the accused person of an offence as a result of which damage to third persons was caused, it shall, as a rule, order the convicted person to compensate for such damage, provided that the relevant claim was filed in time. 29. Under Article 229(1), a criminal court shall refer a person claiming damages to a civil court where the evidence available is not sufficient for determining that claim or where the taking of further evidence exceeding the scope of the criminal case is required and the criminal proceedings would be thereby unduly prolonged. 30. Article 83 of the Code of Civil Procedure provides that, once proceedings have been brought, no other judicial proceedings can be instituted in the same matter. 31. In accordance with the Supreme Court’s practice under this provision, the filing of a claim for damages in the context of criminal proceedings is to be considered as the bringing of proceedings, within the meaning of the relevant provisions of the Code of Civil Procedure, and it constitutes an obstacle of litis pendens where a civil action is filed after the corresponding claim has been submitted in the context of criminal proceedings (Collection of Supreme Court’s Decisions and Opinions, 22/1979, p. 192).
| 1
|
train
|
001-70367
|
ENG
|
POL
|
CHAMBER
| 2,005
|
CASE OF KRAWCZAK v. POLAND (No. 1)
| 4
|
Violation of Art. 5-3;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
4. The applicant was born in 1950 and lives in Poznań, Poland. 5. On 17 June 1999 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody for a period of three months on suspicion that he had committed three counts of armed robbery. It considered that that measure was indispensable in order to secure the proper conduct of the proceedings, having regard to the serious nature of the offences in question and the severity of the anticipated penalty. Lastly, it considered that, given the way in which the offences in question had been committed, the applicant might attempt to induce witnesses to give false testimony. 6. During the investigation, the applicant's detention was prolonged several times. 7. On 19 August 1999 the Gdańsk Regional Court (Sąd Okręgowy) prolonged his detention until 16 December 1999, relying on the grounds originally given for his detention. It further referred to the need to take various investigative measures and obtain expert evidence. It also considered that the complexity of the case justified the prolongation of the applicant's detention with a view to securing the proper conduct of the investigation. The applicant appealed against that decision, relying on his poor health. 8. On 13 October 1999 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed his appeal, having regard to the medical report of 28 September 1999 which concluded that the applicant could remain in detention. 9. On 8 December 1999 the Gdańsk Court of Appeal prolonged his detention until 16 June 2000, finding that it was highly probable that he had committed the offences with which he had been charged. In that respect, it referred to evidence given by a certain A.Ł., a member of the same criminal group, who acted as a witness against the other suspects. The Court of Appeal further relied on the need to obtain and secure evidence, in particular from experts in ballistics, biology and fingerprints. It stressed that it was also necessary to hold a reconstruction of the crime and to confront the suspects with each other. It also considered that the scale and the nature of the offences in question justified the applicant's continued detention. The applicant appealed against that decision. 10. On 8 February 2000 the Supreme Court (Sąd Najwyższy) dismissed his appeal. It had regard to the serious nature of the offences in question and the need to obtain further evidence. It further emphasised the complexity of the case and considered that the applicant's continued detention was the only measure which could secure the proper conduct of the proceedings. 11. On 24 May 2000 the Supreme Court extended the applicant's detention until 15 December 2000, considering that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody. It found that the present case was “particularly complex” within the meaning of Article 263 § 4 of the Code of Criminal Procedure due to, inter alia, the nature of the offences and the number of suspects involved. 12. On 13 December 2000 the Gdańsk Court of Appeal prolonged the detention of the applicant and his 8 co-suspects pending investigation until 31 March 2001. On 7 March 2001 it ordered that the applicant be held in custody until 31 May 2001. It repeated the grounds stated in its previous decisions. It added that the prolongation of the applicant's detention was justified by the need to obtain DNA evidence. 13. On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court on 12 charges, including several counts of armed robbery. The bill of indictment listed 120 charges brought against 19 accused, who were all detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them. 14. On 17 May 2001 the Regional Court prolonged the applicant's detention until 16 June 2001, reiterating the grounds that had been stated in the previous decisions. It considered that there was a risk that he might abscond or interfere with witnesses, having regard to the serious nature of the offences in question and the connections between the suspects. 15. Since on 16 June 2001 the applicant's detention reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure, further prolongation of the applicant's detention was ordered by the Gdańsk Court of Appeal. The Court of Appeal relied on the particular complexity of the case as the ground for extending the applicant's detention beyond the statutory time-limit. The relevant decisions were given on 23 May 2001 (extending the applicant's detention until 31 October 2001), on 24 October 2001 (prolonging that period until 31 March 2002), on 13 March 2002 (ordering his continued detention until 30 September 2002), on 11 September 2002 (prolonging the detention until 31 December 2002), on 18 December 2002 (ordering his continued detention until 30 June 2003), on 25 June 2003 (extending the detention until 31 December 2003), on 17 December 2003 (prolonging it until 30 June 2004), on 23 June 2004 (ordering his continued detention until 31 December 2004), on 15 December 2004 (extending that period until 31 March 2005), on 30 March 2005 (ordering his continued detention until 30 June 2005) and on 22 June 2005 (prolonging his detention until 30 September 2005). As at the latter date, 8 of the 19 accused were still detained on remand and the trial court had heard most of the prosecution witnesses. 16. In all those decisions the Court of Appeal stated that the grounds originally given for the applicant's detention were still valid. It especially relied on the need to secure the proper conduct of the proceedings against any attempt by the applicant to obstruct the process of obtaining evidence. It stressed the exceptionally complex nature of the case and the fact that several hundred witnesses were to be heard. 17. In the meantime, the trial began on 28 December 2001. However, as at April 2002 the reading out of the bill of indictment by the prosecution was still continuing. 18. In its decision of 13 March 2002, the Court of Appeal found that holding the applicant and his seven co-defendants in custody was the only measure which would prevent them from obstructing the trial, having regard to the nature of the offences in question, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation. It also instructed the trial court to increase the number of hearings held per month. 19. In its decision of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. 20. In its decision of 18 January 2005 dismissing the applicant's appeal against the decision of 15 December 2004 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by any concrete facts, but resulted from the above presumption. 21. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately from other defendants. 22. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from A.Ł. 23. It appears that the applicant is still in detention pending trial. 24. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, 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), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju). 25. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 26. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 27. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 28. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 29. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 30. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 31. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
| 1
|
train
|
001-23845
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,004
|
KRIVONOGOVA v. RUSSIA
| 2
|
Inadmissible
|
Christos Rozakis
|
The applicant, Ms Lyubov Nikolayevna Krivonogova, is a Russian national, who was born in 1957 and lives in Omsk. She is represented before the Court by Ms Deryabina, a lawyer practising in Omsk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1998 the applicant brought an action against a private party to recover a debt under a loan contract. On 23 December 1998 the Sovetskiy District Court of Omsk awarded RUR 46,263.56 to the applicant, with interest to be charged until the day of actual payment. On 4 January 1999 the judgment entered into force. On 4 February 1999 the enforcement proceedings were opened. The defendant's flat was subject to a charging order. On 18 August 1999 the bailiff seized the defendant's car and lifted the charging order on the flat. On 20 August 1999 the bailiff suspended the enforcement proceedings until 26 August 1999 due to the defendant's husband's request to separate his property from that of his wife to preserve his share. Following the lifting of the charging order the applicant learned that the defendant had sold the flat and bought another one. The applicant alleges that the defendant sold the flat at the price RUR 180,000 and paid RUR 112,000 for the new one. The applicant brought two sets of proceedings against the bailiff. Firstly, she challenged the lifting of the charging order. Secondly, she challenged the delay in enforcement. On 22 March 2000 the Sovetskiy District Court of Omsk declared the lifting of the charging order unlawful. The court held, in particular, that “it reduced the effectiveness of the court's judgment”. The bailiff appealed. On 11 April 2000 the Sovetskiy District Court of Omsk declared unlawful the suspension of 20 August 1999 and the delay in enforcement of the judgment. On 26 April 2000 the Omsk Regional Court acting on appeal upheld the decision of 22 March 2000. The court dismissed the bailiff's objection that the flat could not be subject to an injunction for being the defendant's only dwelling, as having no basis in law. It found that the bailiff's unlawful act allowed the defendant to dispose of the flat, which impeded the enforcement proceedings. On 1 June 2000 the Sovetskiy District Court of Omsk defined the property shares between the defendant and her husband. The applicant brought an action against the Ministry of Finance of the Russian Federation (Министерство финансов РФ) and the Department of Justice of the Omsk Region (Управление юстиции администрации Омской области). She claimed damages resulting from the bailiff's failure to enforce her award. She sought a total sum of RUR 82,838.00, representing the principal debt and the outstanding interest. On 14 February 2001 the Central District Court of Omsk dismissed her claim. It stated that “neither the fact that the lifting of the charging order had been declared unlawful nor the undue delay of enforcement proceedings, although they resulted in a failure to execute the judgment, justifies an action for damages against the [authorities] because it was the [debtor under the loan] who had caused the damage to the applicant and who was liable pursuant to the judgment.” The court found “neither a fault on the part of the bailiff, nor a causal link between the bailiff's act and the damage caused”. On 11 April 2001 the Omsk Regional Court acting on appeal upheld the judgment of 14 February 2001. The court noted that the enforcement proceedings had continued and that on 27 April 2000 and 14 August 2000 the bailiff had issued injunctions in respect of a flat and a vehicle, in both of which the defendant had had a share. On 30 January 2002 the defendant's car was seized, and in May 2002 it was sold. So far RUR 32,260.65 has been paid to the applicant. The Constitution of the Russian Federation, adopted by referendum on 12 December 1993, provides, in so far as relevant, as follows: “...2. Decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court.” “Every person shall have the right to be reimbursed by the state for the damage caused as a result of unlawful actions (inaction) of the state bodies and their officials.” The Civil Code of the Russian Federation, in force as of 1 March 1996, provides for compensation for damage caused by the act (or a failure to act) on behalf of the State: “Damage caused to an individual or a legal person as a result of an act or a failure to act by the state or municipal bodies, or their officials, including that caused by a written act issued by a state or a municipal body contrary to a law or a legislative act, shall be reimbursed. The damage shall be reimbursed by the treasury of the Russian Federation, the treasury of the subjects of the Russian Federation or the municipal treasury respectively.” Article 1071 of the Civil Code authorises the relevant financial bodies to act on behalf of the respective treasury liable to pay damages. Article 90 § 2 of the Federal Law on Enforcement Proceedings, in force as of 6 November 1997, provides that the damage caused by the bailiff shall be reimbursed in accordance with the civil legislation. Article 446 of the Code of Civil Procedure, in force as of 1 February 2003, provides that a dwelling cannot be subject to a charging order for the purpose of enforcement, if it provides the only eligible residence for the debtor and his family. No similar provision was in force before the entry into force of this Code.
| 0
|
train
|
001-69498
|
ENG
|
POL
|
ADMISSIBILITY
| 2,005
|
KARDAS v. POLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Mieczysław Kardaś, is a Polish national who was born in 1927 and lives in Kielce, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 September 1990 the applicant asked the Busko-Zdrój District Court (Sąd Rejonowy) for a judgment declaring that he had inherited his mother's estate. The proceedings were terminated on 4 June 2001, when the Supreme Court (Sąd Najwyższy) refused to deal with the applicant's cassation appeal. On 12 January 2001, the date on which the application was lodged with the Court, they were pending before the Supreme Court. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.
| 0
|
train
|
001-91636
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF BÖKE AND KANDEMIR v. TURKEY
| 3
|
Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 6-3-c;Non-pecuniary damage - award
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
4. The applicants were born in 1969 and 1979 respectively and live in İzmir. 5. On 14 February 2001 two persons were shot and injured in a bus by a person who subsequently got off the bus. 6. On the same day, upon receipt of information that the suspect of the shooting was in a red car, police officers from the Aydın police headquarters arrested the applicants during a traffic control operation that had they initiated on the Aydın motorway. The security forces further arrested four other persons, including the first applicant’s brother, in another car. The police officers confiscated the applicants’ mobile telephones and both cars, in which 5 firearms were found. On the same day, the applicants were taken into police custody. 7. On 15 February 2001 three police officers drafted a report containing the numbers dialled and calls received on the mobile telephones of the first applicant, his brother and another suspect. 8. On 19 February 2001 a single judge at the Aydın Magistrates’ Court extended the period of the applicants’ detention in police custody for a further three days. 9. On the same day the applicants’ statements were taken by police officers from the organised crime unit of the Aydın Police Headquarters. According to the document containing their statements, the applicants were suspected of forming a criminal profit-making organisation proscribed by Article 1 of Law no. 4422. According to the document, both applicants confessed to their involvement in a criminal organisation. 10. On 15, 16 and 21 February 2001, the applicants were examined by doctors at the Aydın State Hospital. The doctors noted in their reports that there were no signs of ill-treatment on the applicants’ persons. 11. On 21 February 2001 the applicants were brought before a single judge at the Aydın Magistrates’ Court, who ordered their detention on remand. Before the judge, the applicants refuted the accuracy of the documents containing their statements taken by the police. 12. On 22 March 2001 the firearms found in the cars were subjected to a ballistic examination. The experts found that one of the weapons found in the car of the first applicant’s brother had been used in the shooting of 14 February 2001. 13. On an unspecified date a test was conducted in order to detect traces of gunpowder on the applicants’ and other suspects’ hands, which resulted in the finding of gunpowder traces on the applicants’ hands. 14. On 19 April 2001 the Public Prosecutor at the İzmir State Security Court filed a bill of indictment, charging the applicants and eleven other persons with forming a criminal profit-making organisation. 15. On 5 June 2001 the applicants made statements before the Aydın Assize Court and refuted the veracity of the documents containing their statements taken by the police. The minutes containing their statements were then sent to the İzmir State Security Court. 16. On 13 June 2001 the İzmir State Security Court held the first hearing on the merits of the case and heard some of the accused and read out the evidence in the case file. On the same day the applicants’ representative stated before the court that the applicants disputed the accuracy of the evidence against them, including the medical reports issued following their detention in police custody, which stated that there was no sign of physical violence on their bodies. 17. On 2 August and 11 September 2001 the court held the second and third hearings and took statements from some of the other accused. 18. On 13 June 2001, 26 July 2001, 2 August 2001 and 11 September 2001, the State Security Court refused to release the applicants, relying on the seriousness of the offence and the evidence in the case file. 19. On 1 November 2001, during the fourth hearing before the State Security Court, the first applicant, Rifat Böke, complained that he had been subjected to torture during his detention in police custody and that he suffered from cervical disk syndrome as a result. He denounced the statements that had been taken from him in police custody and contested the accuracy of the medical reports issued in his respect. At the end of the hearing, the court refused to release the applicants, taking into account the nature of the offence and state of the evidence. The court held that the next hearing would be held on 27 December 2001. 20. The applicants filed an objection to the decision for their continued detention. 21. On 20 November 2001 another Chamber of the İzmir State Security Court dismissed the applicants’ objection, holding that the decision for their continued detention was justified. 22. Between 27 December 2001 and 14 May 2002 the İzmir State Security Court held four more hearings. 23. On 14 May 2002 the İzmir State Security Court convicted the applicants of forming a profit-making criminal gang and sentenced them to three years and four months’ imprisonment. In its judgment, the court took into consideration as evidence the arrest report, the report stating that firearms were found in the applicants’ car, the applicants’ statements to the police, the medical reports issued at the end of their detention in police custody, the report containing the details of the telephone calls made by the first applicant, the results of the test showing gunpowder traces on the applicants’ hands and the ballistic reports. The court further noted the past relations between the applicants and the other accused, as well as the hostility between them and one of the persons who had been shot on 14 February 2001. In the light of the evidence in the case file, the State Security Court found it established that the applicants had formed a criminal organisation with a view to making a profit, and that the shooting of the two persons on 14 February 2001 had been a result of the activities of that organisation. Taking into account the total period of the applicants’ pre-trial detention, the court ordered their release. 24. On 5 May 2003 the Court of Cassation upheld the decision of the İzmir State Security Court. 25. On 14 June 2001 the Aydın Public Prosecutor filed a bill of indictment with the Aydın Criminal Court, charging the applicants with causing grievously bodily harm to third persons. 26. On 4 December 2006 the Aydın Criminal Court acquitted the applicants. The court noted that the persons who had been shot could not identify the applicants as the perpetrators of the shooting. It held that there was insufficient evidence in the case file to conclude that the applicants had been involved in the shooting. 27. On 26 February 2001 the applicant met his representative in the Aydın prison. The applicant complained about the ill-treatment he had allegedly suffered in police custody. He asked his representative to secure him a medical examination. 28. On 2 March 2001 the applicant’s representative filed a petition with the İzmir Public Prosecutor’s office, requesting the latter to order the medical examination of both applicants. He alleged that, during the applicants’ detention in police custody, they had been subjected to various forms of ill-treatment, including hanging by the arms, which still caused them pain and had left marks on their bodies. He further stated that the applicants had previously been examined by doctors who had turned a blind eye to these marks and had failed to draft accurate medical reports. He warned that an immediate medical examination was necessary since the traces of ill-treatment risked disappearing. 29. On the same day, the Aydın Public Prosecutor sent a letter to the Aydın Prison Administration, requesting the latter to send the applicants to Aydın State Hospital for medical examinations. He further asked the prison administration to provide him with the medical reports concerning the findings on the applicants’ bodies so that he could verify whether they had been subjected to ill-treatment. 30. On 29 March 2001 the first applicant was taken to a clinic attached to the Aydın Governor’s office. A doctor examined the applicant and drafted a report in which he noted that there was no sign of ill-treatment. He recommended that the applicant undergo a medical examination by a neurologist. 31. On 30 March 2001 a doctor at the Aydın State Hospital drafted a report on the first applicant’s neurological examination. He noted that there were no pathological findings in respect of the applicant. 32. According to the first applicant’s submissions, on the same day, another doctor at the hospital took an x-ray of his neck. The applicant further submitted that the doctor had noted in his report that he was suffering from cervical disk syndrome. The doctor sent the applicant’s x-ray to the Aydın prison. 33. On 4 April 2001 a doctor at the Aydın State Hospital prescribed a hard cervical collar for the first applicant. According to the minutes of the hearing before the Aydın Criminal Court held on 26 July 2001, the applicant appeared before the court wearing the collar. 34. On 10 May 2001 the applicant filed a complaint with the Aydın Public Prosecutor’s office against the police officers who had allegedly illtreated him, and the prison authorities, who had failed to arrange his transportation to a hospital for medical examination. He also complained about the doctors who had not examined him in accordance with the regulations and had failed to note his injuries in their reports. 35. On 23 May 2001 a doctor prescribed anti-inflammatory medicine (Tilcotil) for the applicant. 36. On 5 June 2001 the applicant stated before the Aydın Assize Court, within the context of his defence concerning the case brought against him before the İzmir State Security Court (see paragraph 14 above), that he had been subjected to torture and had suffered from severe pain in his neck as a result. He further maintained that he could not receive appropriate medical treatment since he was detained. 37. On 23 October 2001 the Aydın Public Prosecutor issued a decision to discontinue the criminal proceedings against the police officers since no sign of ill-treatment had been detected on the applicant’s person. In his decision, the public prosecutor relied exclusively on the medical reports issued in respect of the applicant on 15, 16 and 21 February 2001 and the medical report issued during the investigation. 38. On 9 January 2002 Mr Böke filed an objection with the Nazilli Assize Court against this decision. He maintained that he had worn a cervical collar for three weeks. He further contended that the cervical X-ray, the medical report diagnosing him with cervical disk syndrome and the prescriptions had not been given to him. Nor had they been included in the investigation file. 39. On 5 February 2002 the Nazilli Assize Court dismissed the applicant’s objection. The court considered that the decision to discontinue the proceedings was justified given the lack of sufficient evidence capable of substantiating the applicant’s allegations of ill-treatment. 40. A full description of the law and practice at the relevant time may be found in Batı and Others v. Turkey, (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV (extracts)) and in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31 and 37-44, 27 November 2008).
| 1
|
train
|
001-58239
|
ENG
|
MLT
|
GRANDCHAMBER
| 1,999
|
CASE OF AQUILINA v. MALTA
| 1
|
Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
|
Luzius Wildhaber
|
7. The applicant, Joseph Aquilina, is a Maltese national, born in 1974 and resident in Qormi, Malta. At the relevant time, the applicant, who was a handyman, had an affair with a 15-year-old girl, whom he subsequently married. 8. The applicant was arrested by the police on 20 July 1992 and detained for interrogation for two days. 9. On 22 July 1992 at around 11 a.m. he was brought before a magistrate of the Court of Magistrates. The charge was read out by a police inspector. It was alleged in the charge that the applicant had defiled his girlfriend in a public place (an offence involving sexual acts) and threatened her family. The applicant pleaded not guilty. 10. The applicant claims – without this having been commented on by the Government – that his counsel requested his unconditional release invoking his youth and the absence of any reasons for detaining him. The magistrate requested the applicant’s counsel to lodge an application for bail. The applicant’s counsel lodged a bail application in which it was stated that the applicant denied all the accusations against him and, in view of his youth and other relevant circumstances, requested to be granted provisional release. On 23 July 1992 the acting registrar of the Court of Magistrates communicated the application to the Attorney-General who was given two days in which to reply. 11. On 24 July 1992 the Attorney-General opposed the bail application and the magistrate before whom the applicant had been brought on 22 July decided to adjourn the examination of the case. 12. On 31 July 1992 a different magistrate, acting as a court of inquiry, after hearing evidence from the alleged victim (but not from the applicant), ordered the applicant’s release. 13. On 1 March 1993 the applicant was found guilty of defilement in a public place. The magistrate, having regard to the absence of violence, the applicant’s youth, his previous good conduct, the fact that he was engaged to the girl and that most of the sexual acts took place while he was under 18, discharged the applicant on probation. 14. On 23 July 1992 the applicant made a constitutional application to the First Hall of the Civil Court arguing that there had been a violation of Article 5 § 3 of the Convention in that the magistrate before whom he had appeared the day before did not have the power to order his release at that stage. Since he was facing charges attracting a maximum sentence of more than three years’ imprisonment, the application for bail had to be communicated to the Attorney-General before a decision could be taken on it. Moreover, the acting registrar had not communicated the application to the Attorney-General on the same day, as the law prescribed, but on the following day. 15. It was decided that the applicant’s constitutional application would be heard on 30 July 1992. 16. On 30 July 1992 the First Hall of the Civil Court, having noted that the applicant had not been notified of the hearing, decided to adjourn the examination of his constitutional application until 6 August 1992. 17. The First Hall pronounced on the applicant’s constitutional application on 25 November 1993. It briefly reviewed the proceedings in the applicant’s case, noting that on 22 July 1992 the applicant had lodged a bail application which was communicated to the Attorney-General on 23 July 1992; that the Attorney-General had opposed it within less than twenty-four hours; that on 24 July 1992 the Court of Magistrates had deferred judgment; and that on 31 July 1992 it had decided to release the applicant after the victim had given evidence. On the substance of the application the First Hall held that the provisions of Article 575 of the Criminal Code, which required written notification of the Attorney-General, were inconsistent with the provisions of Article 5 § 3 of the Convention in failing to provide for the prompt consideration of the application for bail. It also found a breach of Article 5 § 3 in the time taken by the acting registrar to notify the Attorney-General. The court awarded the applicant 100 Maltese liras by way of compensation. 18. The respondents in the action – the Commissioner of Police, the acting registrar, the Attorney-General and the Prime Minister – appealed to the Constitutional Court. 19. On 13 June 1994 the Constitutional Court reversed the decision of the First Hall. It found that what had actually occurred did not violate the fundamental human rights of the applicant as guaranteed by Article 5 § 3 of the Convention. It also awarded costs against the applicant. 20. Article 137 of the Criminal Code provides as follows: “Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall, on conviction, be liable to imprisonment for a term from one to six months.” 21. In its judgment of 7 January 1998 in Carmelo Sant v. Attorney-General the Constitutional Court rejected the appellant’s argument that Article 137 of the Criminal Code only provided for a penalty and not for a remedy. According to the Constitutional Court, if the way in which this Article had been applied were to be examined, the conclusion would be the same as that reached by Chief Justice John J. Cremona. The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of Malta, there are in the Maltese Criminal Code two provisions, namely Articles 137 and 353 which, taken together, may be regarded as providing an equally effective safeguard of personal freedom. 22. The parties before the European Court referred to the following examples of cases in which Article 137 had been invoked. On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under Article 1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked Article 137 of the Criminal Code, requested the Court of Magistrates to order the acting registrar of the court and the Commissioner of Police to bring Cremona before the court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request. Ibrahim Hafes Ed Degwej, later christened Joseph Leopold, invoked Article 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application. On 28 April 1997 Joachim sive Jack Spagnol relied on Article 137 of the Criminal Code to challenge the lawfulness of his prolonged detention pending an investigation into his assets, which had been sequestrated by court order. He claimed that the detention had been unduly prolonged. Moreover, he asserted that he had very little property. On 28 April 1997 the Court of Magistrates transmitted the case file to the Attorney-General and abstained from further consideration of the application. On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed: “As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to Article 137 of the Criminal Code.” (unofficial translation from Maltese) 23. Moreover, the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person’s release. The magistrate had this obligation by virtue of the provisions of Article 137 of the Criminal Code. Every person in Malta was assured that an arrest could not last beyond forty-eight hours and the appearance before the magistrate ensured that if the arrested person had any submissions to make, he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority. In connection with habeas corpus decisions, under Article 137 of the Criminal Code the magistrate did not need to hear the Attorney-General. However, since this was an adversarial procedure where the prosecution was led by the police, the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms. This was a power quite separate and distinct from the power to grant bail. If the arrest was found by the magistrate to be unlawful, then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise. Only if there was nothing to show that the arrest was unlawful did the question of bail arise. 24. Article 353 of the Criminal Code, read together with Article 137, is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus (see paragraph 21 above). Article 353 addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows: “353. (1) Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him. (2) Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.” 25. The powers of the Court of Magistrates in respect of arrested persons who are brought before it under Article 353 of the Criminal Code were discussed in extenso in the Ellul case. On 23 December 1990 Nicholas Ellul, who had been arrested on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment, was brought before the Court of Magistrates. He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful. This request was dealt with by the Court of Magistrates on the same day in the following manner: “The procedure which should be followed by the Court of Magistrates as a Court of Inquiry is set out in Articles 389 to 409 of the Criminal Code. Sub-article (1) of Article 390 provides how proceedings should start before this Court: it ‘shall hear the report of the police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report’. The time-limit for the conclusion of this inquiry is one month as indicated in Article 401. In no way is the Court bound to hear any evidence in support of the report. Moreover, the fact that the prosecuting officers confirm the report on oath is meant to satisfy the Court that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him. This Court does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges; after all, in this context, the word ‘report’ means ‘charge’. This is the procedure followed in this case and it is the correct procedure. Consequently, the Court declares that the requests of the person charged are unfounded and therefore rejects them.” (unofficial translation from Maltese) Mr Ellul lodged a constitutional application arguing that there had been a breach of Article 5 § 3 of the Convention. On 31 December 1990 the First Hall of the Civil Court found that Article 5 § 3 did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person’s arrest had been made on a reasonable suspicion. Moreover, the court considered that Article 5 § 3 did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest. On 8 January 1991 the Constitutional Court upheld the decision of the First Hall of the Civil Court. 26 “According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution. The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees. Therefore what the defence is requesting is outside the functions of this Court. Having regard to Articles 574(1), 575(2) and 582(1) of the Criminal Code, the Court declares itself not competent to comply with the request and directs the person charged, that if his request for release is to be considered, he has to comply with what is provided in the Articles herementioned.” (unofficial translation from Maltese) 27. The Criminal Code contains the following Articles concerning bail: “574. (1) Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place. … 575. … (2) The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney-General on the same day, whenever it is made by – … (c) persons accused of any crime punishable with more than three years’ imprisonment ... (3) The Attorney-General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition. … 576. The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable. 577. (1) Security for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed. (2) It may also be given, whenever the court shall deem it proper, by the mere deposit of the sum or of an equivalent pledge, or by the mere recognisance of the person accused. … 582. (1) The Court may not ex officio grant bail, unless it is applied for by the person charged or accused. …” 28. By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta. 29. In its Aquilina judgment of 13 June 1994 (see paragraph 19 above) the Constitutional Court held that judges in Malta have to take into consideration the case-law of the European Court of Human Rights.
| 1
|
train
|
001-114260
|
ENG
|
RUS
|
CHAMBER
| 2,012
|
CASE OF MAKSIM PETROV v. RUSSIA
| 4
|
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)
|
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
|
5. The applicant was born in 1965 and is currently serving a sentence of life imprisonment in the town of Solikamsk, Perm Region. 6. In 1999 there were incidents in St Petersburg in which many elderly and sick people were attacked in their homes by a criminal posing as a doctor. 7. On 17 January 2000 the applicant, a doctor working for an emergency service, was caught on the spot while trying to enter an elderly person’s apartment. He was arrested on charges of multiple robbery and murder and has remained in detention since that date. The applicant submits that he was ill-treated during his arrest. 8. On 21 November 2003 the St Petersburg City Court examined the applicant’s criminal case and convicted him on multiple charges of murder, attempted murder and robbery. The applicant was sentenced to life imprisonment. 9. The court established that the applicant had posed as a doctor and, having entered his victims’ flats, injected them with soporifics, sometimes in lethal quantities, and then robbed them, killing some of them. In total, there were eleven victims in the case who either died or could have died as a result of the applicant’s criminal activity. 10. The conviction was based on several pieces of evidence, including the applicant’s bag with needles and prepared soporific materials, expert examinations of these materials, oral evidence given by numerous witnesses, including a pawnshop owner who had bought various items from the applicant on numerous occasions, the surviving victims, the applicant’s own statements and the autopsy reports on the victims. 11. During the proceedings the applicant complained that his lawyer had failed to take some investigative actions. The court examined this grievance, questioned both the applicant and his lawyer, and concluded that the lawyer’s lack of action had been due to the applicant’s own deliberate decision. 12. The applicant also tried to retract his self-incriminating statements given at the pre-trial stage of proceedings, with reference to torture and coercion. The court examined this argument in detail, having, among other things, ordered an additional investigation in the matter, and explicitly rejected it as unsubstantiated. The decisions to discontinue the investigation with reference to the lack of indication that any crime had been committed were taken by the relevant prosecutor’s office on 27 March and 14 May 2003. 13. They established that the applicant had actively resisted arrest and the police officers had therefore had to apply physical force. The decisions also concluded that the officers had only applied physical force in so far as it was rendered unavoidable by the applicant’s own conduct. 14. The applicant did not appeal against the prosecutor’s decisions to discontinue the investigation in court. 15. The applicant’s sentence was upheld by the Supreme Court on appeal on 24 June 2004. 16. It appears that the applicant was, among other things, dissatisfied with the fact that the first-instance court had consisted of a single judge. Having examined this argument, the appeal court noted that the applicant had been given a choice between the single judge composition and the composition consisting of a professional judge and two lay assessors. The applicant had explicitly chosen the former option. 17. It does not appear that the applicant brought any court proceedings in respect of the detention orders in his case. 18. Following his arrest on 17 January 2000 the applicant was placed in the Inter-district Temporary Detention Centre of the Principal Department of the Ministry of the Interior in St Petersburg (the Detention Centre, Межрайонный изолятор временного содержания ГУВД). He remained there until 28 January 2000. 19. The applicant submits that the conditions in the centre were terrible. The overcrowded cell measured no more than eight square metres without windows or ventilation. There were more than ten inmates in the cell. They were not provided with blankets or bed linen or with any opportunity to exercise or even walk. They were only given 300 ml of drinking water per day. There were no proper washing arrangements in the cells, the light was on all the time and there was an exceptionally high humidity level. 20. On 28 January 2000 the applicant was transferred to remand prison IZ-45/1 in St Petersburg (later renumbered IZ47/1). It appears that he was transported back to the Detention Centre from time to time during the investigation stage of the proceedings. His stay in the centre usually lasted for no more than ten days. 21. According to the applicant, all the prison cells were severely overcrowded, exceeding their design capacity at least twofold. The cells measured around eight square metres and contained between eight and twelve inmates. Until he was transferred to a solitary cell on 21 November 2003, he had to take turns to sleep. There was no proper ventilation and the toilet facilities were not partitioned off from the rest of the cell. The light was constantly on, the food was of poor quality, and the heating system was either lacking or out of order. 22. The Government submitted the following information concerning the applicant’s detention in the IZ-47/1. The applicant was held in this detention facility between 28 January 2000 and 3 October 2004, when he was transferred to penal facility IK-2. 23. In remand facility IZ-47/1 the applicant was held in cells 760, 780, 740, 376, 468, 456, 453, 64 and 126. Apart from cell no. 780, which measured some ten square metres, had one window and held up to seven inmates, including the applicant, the rest of the cells were identical. They all measured around eight square metres, had one window and contained up to seven inmates. 24. Between 31 January 2000 and 4 November 2001 the applicant was detained in cell no. 760. From 31 January to 17 June 2000 the cell contained a total of three inmates. The rest of the time there were seven inmates in the cell. 25. Between 4 November 2001 and 8 April 2002 the applicant was detained in cell no. 740. From 13 January 2001 to 1 April 2002 the cell contained a total of three inmates, whilst the rest of the time this number was up to seven. 26. From 9 to 26 April 2002 the applicant was held in cell no. 376. From 12 to 20 April 2002 there were three inmates in the cell in total and the rest of the time it contained seven inmates. 27. From 26 April to 10 September 2002 the applicant was held in cell no. 468. The cell contained a total of four inmates between 20 May and 15 July 2002 and seven inmates for the rest of the time. 28. The applicant was held in the same cell also between 12 September 2002 and 10 January 2003. Between 30 September and 29 December 2002 he was held in the cell with two other inmates, whilst the rest of the time the cell contained up to seven inmates. 29. Between 10 and 15 January 2003 the applicant was held in cell no. 456. On 11 and 12 January 2003 there were three inmates in the cell, whilst the rest of the time there were up to seven. 30. From 15 January to 4 April 2003 the applicant was again detained in cell no. 468. Between 15 February and 10 March 2003 there were three inmates in the cell. The rest of the time it held up to seven inmates. 31. The applicant was moved to cell no. 453 on 4 April 2003, until 30 May 2003. From 21 to 30 April 2003 there were three inmates in the cell, whilst the rest of the time there were up to seven. 32. The applicant was held in the same cell from 2 June to 21 July 2003. Between 12 June and 10 July 2003 the cell held three inmates and the rest of the time it held seven inmates. 33. The applicant was moved to cell no. 64 on 21 July 2003, until 21 November 2003. Between 28 September and 25 October 2003 there were three inmates in the cell. The rest of the time there were up to seven inmates in the cell. 34. The applicant was transferred to cell no. 126 on 21 November 2003, and thereafter was held in solitary confinement. 35. The Government admitted that the detention facility was overcrowded, but denied that there had been any problems or issues with any other conditions of the applicant’s detention such as ventilation, toilets, food arrangements and so on. In particular, the Government referred to various certificates issued by the prison administration confirming that the prison at issue was equipped with a proper ventilation system, had appropriate washing arrangements and that proper measures to control rats and insects had been in place. 36. The Government also referred to certificate no. 65/14-866 dated 14 March 2003, issued by the prison administration, which specifically admitted that there was a lack of precise information about the number of inmates during the applicant’s stay in IZ-47/1. It referred to records confirming the destruction of the relevant prison logs on 14 January 2003, 13 January and 20 December 2005 and 20 December 2006. 37. The applicant agreed with the Government concerning the surface area of the cells, but disputed the numbers of the inmates. He also specified that between January and November 2000 he was constantly being transferred from the Detention Centre to the remand prison, staying in both intermittently. 38. The applicant submitted that the conditions of his transportation to and from the court hearings had been appalling. 39. According to him, on the hearing days he was usually taken out of his cell at 4 a.m. and placed in a preliminary reception cell, which measured some eight square metres and usually contained 20 inmates. An hour later, the inmates were placed in a prison van, which was originally designed for sixteen or seventeen passengers but which in reality contained no fewer than thirty. Given the length of the journey and frequent traffic jams, each return trip took around four hours. On these days the inmates did not receive any food between 4 a.m. and 8 p.m. 40. The Government relied on prison certificate no. 65-1690 dated 19 March 2008 issued by the Regional Department of the Ministry of Justice, which confirmed that during his stay in IZ-47/1 the applicant had made a total of thirty-two trips. The trips took place on 17 September, 21, 23 and 25 October, 12 November and 4 and 5 December 2002, and 27 January, 20 February, 28 and 31 March, 5 and 7 May, 16, 17 and 18 June, 1 and 4 July, 22, 23, 25 and 26 September, 1, 6, 8, 13, 16, 20, 28 and 30 October, and 18 and 21 November 2003. 41. The Government submitted that the applicant had received a hot breakfast before leaving and a hot supper after his return to prison. In addition, he was allowed to take food with him to the hearings. The Government stated that a one-way trip lasted around thirty to forty minutes and the prison vans were never overcrowded. They did not rely on any original documentation to confirm these submissions. 42. According to the certificate issued by the prison administration no. 65-1630 dated 17 March 2008, the original documentation recording the number of inmates transported on each such occasion with the exact routes and durations of the respective trips could not be submitted because transportation was carried out by the Regional Department of the Ministry of the Interior. 43. The Government submitted a copy of the record from the Regional Department of the Ministry of the Interior dated 4 May 2005 and confirming the destruction of some logs concerning the period from January to the end of August 2000. According to the Government, these were the logs concerning the applicant’s trips. 44. The applicant agreed with the dates of the trips and their overall number. He maintained on his initial account of the events as regards the rest of the details. 45. On an unspecified date after his transfer to a penal establishment the applicant sued the Ministry of Finance for damages in connection with the allegedly appalling conditions of detention and transportation in prison. Among other things, he relied on Article 3 of the Convention and the Court’s case-law. 46. By a judgment of 23 July 2009 the Kalininskiy District Court (St Petersburg) rejected his claim in full as unsubstantiated. The court considered that the applicant had failed to submit sufficient evidence in support of his allegations. Given that the prison administration denied the applicant’s allegations, his claim was rejected as unsubstantiated. 47. The first-instance judgment was upheld on appeal by the St Petersburg City Court on 5 November 2009. 48. The applicant’s case received country-wide media coverage both before his arrest, pending the criminal investigation and court proceedings as well as after the trial. 49. On 15 January 1999 a local newspaper, Nevskoye Vremya published an article ‘A killer in the city with a syringe’ describing robberies and murders, involving a person yet uncaught posing as a doctor. The article reported the deaths of two elderly people and then stated: “... According to the police, it would seem that both [deceased] persons became victims of a criminal posing as a medical officer. A series of such crimes began in St Petersburg about a year ago ...” 50. On 26 January 2000 a local newspaper, Peterburg Ekspress, reported that “a few days ago a maniac was captured in St Petersburg”. It also published a photofit picture of the wanted person with a description: “a doctor, whose photofit you can see here, killed nine old people”. The newspaper also published a map of the city on which the locations of the applicant’s activities were marked, and interviews with surviving victims. 51. On 5 April 2000 a national newspaper, Komsomolskaya Pravda, published an article headed ‘Doctor killed old women for smoked sausage’, describing episodes of the applicant’s alleged criminal activity and disguising his name. 52. It appears that during the summer of 2000 some reports were broadcast on various television channels reporting on the applicant’s criminal case. 53. On 5 March 2003 the Moskovskiy Komsomolets newspaper published an article headed ‘Did you call a butcher?’ and describing the charges against the applicant. The article gave an overview of the case and then quoted police comments on the applicant’s actions and personality: “... police officer S. Z. says: ‘What repentance [by the applicant]? ... What are you talking about? He killed old ladies, stole their pasta and the same evening was eating this pasta with his family’. ... All the victims in this case have already been questioned, the evidence studied. But the verdict will not be delivered very soon – the judge has yet to check all the applicant’s arguments. So let us not run ahead of the train with suppositions about the possible verdict ...” 54. On 4 November 2003 the Peterburg Ekspress newspaper published an article “Murderous doctor in the dock” which, in its relevant parts, read as follows: “... Two years ago, in our issue ... of 26 January 2000, we wrote about the arrest of the murderous doctor who paid visits to elderly people, injected them with soporifics, and when they fell asleep robbed them of their personal belongings. Overall, his personal score is over fifty attacks and seventeen murders. Maksim Petrov, accused of these cruel crimes, was apprehended by police officers of the Frunzenskiy District Department of the Interior in the winter of 2000, and only on 21 October the first hearing took place at the City Court in what is being called the doctor’s case. ... Police officers of the Frunzenskiy District Department of the Interior in charge of the investigation concluded that this was a case of a serial killer. At the same time, they learned that the criminal found his future victims by using fluorographic pictures stolen from a district polyclinic. ... ‘We had to find a potential victim of the doctor’, says A.K., the head of the department in charge of homicide investigations in the Frunzenskiy District Department of the Interior. [He then continued:] ‘We seized the registration books from the polyclinic and composed a carefully checked list of retired people, each of whom could be subject to an attack of the doctor. The first list contained 3,500 names, the next list 600 and, as a result, we ended up with seventy-two addresses which could be visited by the maniac. ... A.K., the head of the department in charge of investigations of homicides in the Frunzenskiy District Department of the Interior, hopes that the doctor-maniac gets a life sentence, because he is responsible for over sixteen murders and over fifty robbery episodes. ...” 55. An article published in Komsomolskaya Pravda (in St Petersburg) newspaper on 17 November 2003 and headed “How many [years in prison] will they give to Doctor Petrov?” gave the background of the applicant’s case and some details about the ongoing trial proceedings. It then stated: “... our journalist managed to meet the police agents who had arrested Maksim Petrov. Now that the verdict is close, they agreed for the first time to tell us about the operation, which was later called ‘Medical Brother’. So the cast (with their offices during the operation): Yu. D., senior police agent of the Frunzenskiy District Department of the Ministry of the Interior, Yu. Sh., senior police agent of the [same department], V. T., head of [that] department and of the special operation itself ... ...’He is the scariest person I’ve ever seen during my time in the criminal police’ ̶ Yu. D. shared his thoughts [He then continued:] ‘We in our city have never had, or not at least since 1917 and the gang syndicate of Lyon’ka Panteleev, such a killer who has knowingly and in such cold blood killed so many people. Over ten killings proven! And how many others have there been? Not known! He is a dreadful maniac! Look at this: he has killed some of our parents for a dime. I only regret one thing – that when we arrested him we were not 100% certain that he was the killer. Had I known this for sure, I would not have taken him alive. A skunk like that deserves only death!’ ...” 56. On 20 November 2003 the Smena newspaper, in its issue no. 6, reported on the applicant’s case and trial, mentioning that during the trial the applicant denied the charges against him. 57. In October 2002 the applicant made a pleading before the trial court, mentioning the disclosure of investigation materials by the police officers before the delivery of the verdict in his criminal case. He also mentioned this issue in his appeal arguments. These arguments remained unanswered. 58. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate has no clothes of his own). 59. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide daytime and night-time illumination. 60. Rule 46 provided that prisoners were to be given three hot meals a day, in accordance with the norms laid down by the Government of Russia. 61. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after taking their shower. 62. Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month. 63. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme. 64. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem. 65. The programme mentions detention centre IZ-47/1 in St Petersburg among those affected, with a number of detainees which seriously exceeded capacity (by as much as 152,4 %). The other remand prisons in and around St Petersburg, IZ-47/2 (the town of Tikhvin of the Leningrad Region), IZ47/3 (the town of Vyborg of the Leningrad Region), IZ-47/4 (St Petersburg), IZ-47/5 (St Petersburg) and IZ-47/6 (the town of Gorelovo of the Leningrad Region), are all mentioned as affected to various degrees by the same problem. 66. Article 49 of the Constitution of the Russian Federation provides that everyone accused of committing a crime shall be considered innocent until proven guilty according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force. 67. The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Largecapacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”
| 1
|
train
|
001-76070
|
ENG
|
POL
|
CHAMBER
| 2,006
|
CASE OF DZIERZANOWSKI v. POLAND
| 4
|
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
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Nicolas Bratza
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4. The applicant was born in 1966 and lives in Białystok, Poland. 5. On 22 December 1992 the applicant was involved in a car accident as a result of which one person died. Subsequently, the prosecution service opened an investigation in the case. 6. On 31 March 1993 the prosecution service discontinued the investigation. Subsequently, an auxiliary prosecutor appealed and the investigation was resumed. 7. On 25 June 1993 the applicant was charged with manslaughter. It appears that the applicant had by then left the country and was not notified of the decision. 8. On 30 June 1993 the applicant was indicted before the Białystok District Court. 9. On 11 February 1994 the trial court decided to stay the proceedings on the grounds that the applicant’s address could not be established as he had left the country. 10. On 29 March 1996 the District Court issued an arrest warrant against the applicant. On 2 July 1996 the applicant was arrested by the police while crossing the Polish border. 11. On 8 August 1996 the trial court resumed the proceedings and held a hearing. Subsequently, the District Court held hearings on 19 September and 10 December 1996 and 11 February and 25 June 1997. 12. In 1998 the court held hearings on 18 February, 19 April, 1 September and 8 October. 13. On 12 October 1998 the Białystok District Court gave judgment. The trial court acquitted the applicant. 14. On 16 February 1999 the Białystok Regional Court (Sąd Okręgowy) examined the appeal lodged by the auxiliary prosecutor. The appellate court quashed the judgment and remitted the case. 15. On 26 November 1999 the Białystok District Court held a hearing. In 2000 the trial court held one hearing on 28 January and ordered that an expert opinion be prepared. 16. On 10 May 2001 the next hearing was held. At the hearing on 8 June 2001 the applicant pleaded guilty. On the same day the Białystok District Court found the applicant guilty and sentenced him to a suspended prison sentence. The judgment is final.
| 1
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train
|
001-67506
|
ENG
|
RUS
|
CHAMBER
| 2,004
|
CASE OF PRAVEDNAYA v. RUSSIA
| 3
|
Violation of Art. 6-1;Violation of P1-1
|
Christos Rozakis
|
7. The applicant was born in 1936 and lives in Novosibirsk. 8. Since 1991 the applicant has been receiving an old-age pension. From 1 February 1998 the amount of her pension was to be determined by the Law on Calculating and Upgrading State Pensions (the “Pensions Law”). The Pensions Law introduced a new method of upgrading retirement benefits—“Individual Pensioner Coefficient” (“the IPC”). The IPC, established for the purpose of calculating individual pensions, was the ratio between the individual’s final wages at retirement and the national average wage, and was meant to maintain a link between a person’s pension and previous earnings. 9. The authority in charge of the applicant’s pension—the Pension Fund Agency of the Zayeltsovskiy District of Novosibirsk (“the Agency”)—decided that the IPC to be applied to her should be 0.525. The applicant considered this decision arbitrary as it conflicted, in her opinion, with the Pensions Law. On 12 April 1999 she brought an action against the Agency. 10. On 21 October 1999, the Zayeltsovskiy District Court of Novosibirsk (“the District Court”) found in the applicant’s favour. It held that since the defendant had misinterpreted the Pensions Law, the applicant’s pension should be recalculated with an IPC of 0.7. The Agency appealed against the judgment to the Novosibirsk Regional Court (“the Regional Court”). It alleged that the District Court had misinterpreted the Pensions Law. 11. While the appeal was pending before the Regional Court, on 24 January 2000 the Agency requested the District Court to re-consider its judgment of 21 October 1999 due to discovery of new circumstances. The Agency claimed that on 29 December 1999 the Ministry of Labour and Social Development (“the Ministry of Labour”) had passed the Instruction on the Application of Limitations established by the Pensions Law (“the Instruction”). The Instruction specified how the Pensions Law should be applied. The Agency contended that since it had been unaware of these circumstances at the moment when the judgment was passed, the judgment should be re-considered. 12. On 30 January 2000 the Agency withdrew its application because the judgment of 21 October 1999 had not by that moment come into force, having been appealed against to the Regional Court. 13. On 15 February 2000 the Regional Court upheld the judgment having agreed with the interpretation of the relevant laws given by the District Court. The decision of the Regional Court contained no reference to the Instruction. The judgment of 21 October 1999 accordingly came into force as from 15 February 2000. 14. On 21 August 2000 the Agency submitted a new application for reconsideration of the judgment of 21 October 1999 due to discovery of new circumstances. This time the Agency claimed, in addition, that on 24 April and 25 May 2000 the Supreme Court had confirmed the lawfulness of the Instruction. 15. On 16 January 2001 the District Court granted the Agency’s application. The court applied Article 333 of the Code of Civil Procedure according to which judgments could be re-considered in case of discovery of significant circumstances which were not and could not have been known to the party concerned. The court found that the Instruction, as upheld by the Supreme Court, could serve as such a circumstance. No appeal lay against this decision. 16. After a fresh examination on 12 February 2001, the District Court rejected the applicant’s claims in full having applied the Instruction. On 27 March 2001 the Regional Court upheld the judgment on appeal. 17. The Code of Civil Procedure of 1964 (“CCivP”) in force at the material time: “The court of cassation instance shall verify the lawfulness and validity of the judgment of the first-instance court in the scope of the cassation appeal. It may examine new evidence and establish new facts. The court shall examine newly submitted evidence if it considers that the evidence could not have been submitted to the first-instance court...” “[Judgments] which have come into force may be re-considered on the basis of newly-discovered circumstances. The grounds for re-consideration ... shall be: 1. significant circumstances which were not and could not have been known to the party who applies for re-consideration;... 4. cancellation of a court [judgment] or of another authority’s decision which served as legal basis for the [judgment] in question.” “... [An application for re-consideration of a [judgment] due to discovery of new circumstances] is to be made within three months after the discovery of the circumstances.” 18. On 24 April 2000 the Supreme Court dismissed a complaint lodged by a number of individuals against the Instruction. The Supreme Court found that, contrary to the complaint, the Ministry of Labour had not trespassed its authority when it issued the Instruction, and that the Ministry’s interpretation of the Pensions Law had been correct. On 25 May 2000 the Cassation Section of the Supreme Court upheld this judgment on appeal.
| 1
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train
|
001-80478
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ENG
|
GBR
|
CHAMBER
| 2,007
|
CASE OF RUNKEE AND WHITE v. THE UNITED KINGDOM
| 3
|
No violation of Art. 14+P1-1 in connection with non-entitlement to a Widow's Pension;Violation of Art. 14+P1-1 concerning non-entitlement to a Widow's Payment;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Costs and expenses partial award
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Josep Casadevall;Nicolas Bratza
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6. The facts of each case, as submitted by the parties, may be summarised as follows. 7. Mr Runkee was born in 1938 and lives in Hull. 8. He married in 1964. He and his wife had three children, born in 1965, 1966 and 1974. On 15 March 1998 his wife died. She had worked full time for eight years until becoming pregnant and had made full social security contributions. 9. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers' benefits” on 31 March 1998. By a letter dated 16 April 1998, the Benefits Agency informed the applicant that because he was not a woman he was not entitled to widow's benefits. The applicant lodged a statutory appeal against this decision on 1 May 1998, but abandoned it when advised that the appeal was bound to fail. 10. At the time of his application to the Court, Mr Runkee was in receipt of means-tested statutory benefits, including Income Support and Housing and Council Tax Benefits. Were he a woman, his entitlement to Widow's Pension would have been offset against these benefits, to the extent that, in his present circumstances, he would have received no additional money in respect of Widow's Pension. 11. Mr White is a United Kingdom national, born in 1942 and living in Warrington. 12. He married in 1960. He and his wife had two children, one of whom was adopted and born in 1955, the other of whom was born in 1968. 13. On 8 March 1999 his wife died. She had worked until the birth of her son in 1968 and had made reduced social security contributions. 14. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers' benefits” on 10 March 1999. On 21 June and 8 September 1999, Angela Eagle, a Minister from the Department of Social Security, wrote to the applicant's Member of Parliament confirming that as a man he was not entitled to claim widows' benefits. 15. The following history of the Widow's Pension (“WP”) is taken from Lord Hoffmann's speech in R. v. Secretary of State for Work and Pensions ex parte Hooper and Others [2005] UKHL 29, paragraphs 18-30: “[WP was] first introduced by the Widows', Orphans' and Old Age Contributory Pension Act 1925. The Act provided a pension of 10 shillings a week to any widow whose husband had paid sufficient contributions. There was no age qualification or time limit on payment. Widows were as such entitled to support. But during the Second World War, large numbers of women worked in the armed forces or civilian employment, replacing men on active service. Public attitudes to widowhood changed. Sir William Beveridge said in his 1942 Report on Social Insurance and Allied Services (Cmd 6404, paragraph 153) that there was no reason why a childless widow should get a pension for life. If she was able to work she should do so. He recommended that all widows should be paid a 13 week transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children. The Government did not accept this advice in full. It considered that an older widow, who had in accordance with convention stayed at home during a long marriage to look after husband and children, would often be severely disadvantaged if she was required to earn her own living. The National Insurance Act 1946 therefore not only gave effect to Beveridge's recommendations by introducing [Widowed Mother's Allowance: 'WMA'] and a widow's allowance for 13 weeks after bereavement but also provided WP for widows who were over 50 at the date of the husband's death or who ceased to qualify for WMA when they were over 40. The secular trend in the position of women in employment over the next half century reinforced Beveridge's view that being a widow should not, as such, entitle one to a pension. More and more women entered the labour market. But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading. Far more women than men worked part-time and the great majority of women were (and remain) unable to escape from the traditional low-paid activities of cooking, caring and cleaning. So the trend to equality was counteracted by political pressure from groups representing widows who claimed that, as the United Kingdom became more prosperous, benefits for widows should be increased rather than reduced. The policies pursued by successive governments were therefore not entirely consistent. The Family Allowances and National Insurance Act 1956 raised to 50 the age at which a woman could claim WP after ceasing to be entitled to WMA. On the other hand, the National Insurance (Old persons' and widows' pensions and attendance allowance) Act 1970 reduced to 40 the age at which WP would be payable (at a reduced rate), whether as a result of bereavement or the cessation of WMA. In 1985 the government published a Green Paper on Social Security Reform which pointed out (in paragraph 10.9) that the current system of benefits dated from days when far fewer married women worked: 'Today two thirds of all married women with children over school age, and over a half of widows between 40 and 60, go to work. The present pattern of benefits nonetheless provides support without regard to widows' other income, in many cases long after they have ceased to be responsible for bringing up children. The Government's view is that it is right to give greater emphasis to providing for widows of working age who have children to support, and for older widows less able to establish themselves in work.' Despite this acknowledgement of changes in social conditions, the Social Security Act 1986 made relatively modest adjustments to the system. The 26 week transitional widow's allowance was abolished and the lump sum [Widow's Payment: 'WPt'] of £1,000 substituted. The age at which WP became payable, whether on bereavement or cessation of WMA, was raised to 45 and entitlement to the full rate postponed until 55. These provisions were subsequently consolidated in the 1992 Act. The 1986 changes were opposed by a strong lobby on behalf of widows. But no one suggested in the course of the Parliamentary debates that WP should be extended to men. It is true that Cruse, a non-governmental organisation for 'the widowed and their children', which had taken widowers on board in 1980, said in their 1986-87 annual report: 'We ... continued to press for a widower's pension, based on his wife's national insurance contributions, and for an allowance to be paid to widowed fathers.' But this pressure does not appear to have persuaded anyone to raise the question of WP for widowers in Parliament. The first serious suggestion that widowers should in principle be paid the same benefits as widows came from the European Commission. There had been a Council Directive 79/7/EEC in 1978 on 'the progressive implementation of the principle of equal treatment for men and women in matters of social security' which expressly excluded survivors' benefits. In 1987 the Commission produced a proposal for a new Directive (Com (87) 494 Final). It drew attention in an explanatory memorandum to a statement of the Court of Justice in Razzouk and Beydoun v Commission of the European Communities (Cases 75/82 and 117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors' pensions under the Community's own Staff Regulations) that the principle of equal treatment of men and women 'forms part of the fundamental rights the observance of which the court has a duty to ensure.' Article 4 of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits: 'and to this end: (a) either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows; (b) or the replacement of widows' benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex.' The House of Lords Select Committee on the European Communities (Sub-Committee C) held an inquiry into the proposal in 1989. Miss Joan C. Brown, a writer on social security matters, said in evidence to the Committee that there was no case for paying older widowers the same pensions as older widows. The only way to produce equality was to level down. But hasty action would cause real hardship to large numbers of older widows who had chosen many years earlier to follow the conventional path of staying home to look after husband and children: 'the effect of earlier social patterns on women still have to be worked through. This suggests the need to phase out the older widow's pension over a long period—in the order of 10-15 years. Without this, there would be a serious risk of poverty among older widows who had followed the social norms of their day and now find themselves at a severe disadvantage in a changed world as a result.' The Select Committee accepted Miss Brown's evidence and reported (Session 1988-89, 10th Report, HL Paper 51): 'In the United Kingdom...there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme, irrespective of her earnings, if she is aged 45 or more when her husband dies. This is in recognition of the difficulty the widow may find in re-establishing herself in the labour market—whereas a widower's earning ability would not ordinarily be prejudiced in this way. The Committee consider that, despite these difficulties, the concept of equal treatment must require that, eventually, men and women should be provided with survivors' benefits on the same terms. Employment patterns are changing and, if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives, it will make sense for equal survivors' benefits to be available. There is also a need to avoid putting families at a disadvantage if the mother, rather than the father, becomes the principal breadwinner. It would, however, be perverse to deprive widows of benefits they still need in the interests of sex equality. To reduce this danger, a substantial period should be allowed—at least 15 years—before Member States are obliged to equalise survivors' benefits. Community law recognises a principle of 'legitimate expectation' which would support this approach.' The Government published its response on 4 April 1990 (Cm 1038). It said at para 15: 'Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows. To extend the current provisions for widows to widowers would cost about £350 million a year. The available evidence indicates that widowers are more likely to be in full time work than widows, are more likely to have higher earnings than widows and are less likely to have dependent children. As a consequence the Government have made it clear to the Commission that the equalisation of survivors' benefits should be removed from this draft directive entirely.' In 1991 the Commission withdrew the draft directive pending further consultation with Member States and there has been no further European Union initiative on the question. ...[O]ver the next few years the question of paying WMA to widowed fathers was raised on more than one occasion (see, for example, a Private Member's Bill introduced by Mr Hartley Booth MP on 13 April 1994 (Hansard HC Debates (6th Series) vol 241, cols 212-213) and a Written Answer by the Secretary of State for Social Security (Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one suggested paying WP to widowers or, unsurprisingly, abolishing WP for widows. Cruse said in evidence in these proceedings that Mr Hartley Booth's decision to confine his Private Member's Bill to WMA was 'tactical' but the need for such tactics suggests that there would have been little support for anything more. The abolition of WP came as part of a wider reform of survivorship and other social security benefits in the 1999 Act. It was preceded in 1998 by a Consultation Paper which drew attention to the fact that, in 1995, 7 out of 10 married women worked compared with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows now had income from occupational pension schemes. The Government took the view that widows without dependent children no longer needed long term support. The extension of WP to men was 'not acceptable': it would cost another £250 million a year and would mean giving help to people who were, as a class, unlikely to need it. But the abolition of WP was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that WP was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available. An opposition amendment deferring the abolition of WP until 2020 was defeated but the Government agreed that the changes should not come into force until 9 April 2001 and that the rights of women bereaved before that date should be preserved.” 16. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a WP if her husband satisfied the contribution conditions set out in a Schedule to the Act; and (i) at the date of her husband's death she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65; or (ii) she ceased to be entitled to a WMA at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65. 17. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife, or for any period in which she was entitled to a WMA. 18. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 introduced the Bereavement Payment which replaced the Widow's Payment. The same conditions applied, except that the new payment was available to both widows and widowers whose spouse died on or after 9 April 2001. Section 55 introduced the Widowed Parent's Allowance. Identical conditions applied as for Widowed Mother's Allowance, except that the new allowance was available to (i) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse's death, and (ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day. 19. Section 55 replaced WP with a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse's death, where no dependent children existed. The deceased spouse had to have satisfied the relevant contribution conditions and died on or after 9 April 2001. The Bereavement Allowance is payable for 52 weeks from the date of bereavement, but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife, or for any period for which the survivor was entitled to Widowed Parent's Allowance. 20. Widows (but not widowers) whose husbands died before 9 April 2001, and who fulfilled the other conditions of entitlement, continued to be eligible for WP. 21. For details of the relevant legislative provisions, see Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 14 November 2006, §§ 29-35 and 38-40. 22. On 5 May 2005 the House of Lords delivered a unanimous judgment (cited in paragraph 15 above), in which it found, inter alia, that the difference in treatment between men and women as regards WP from 2 October 2000 (when the Human Rights Act 1998 came into force) onwards was objectively justified and involved no breach of Convention rights. 23. Lord Hoffmann, with whom the other Law Lords agreed, observed that WP had, for reasons of administrative economy, never been means-tested, but had been paid to older widows because it was thought that, as a class, they were likely to be disadvantaged because it had been the custom for women to give up work when they got married. The same did not apply to widowers. The question was not, therefore, whether there was justification for not paying WP to men, but rather whether there was justification for not having moved faster in abolishing its payment to women. The history of WP (set out in paragraph 15 above) demonstrated that the decision to achieve equality between men and women by levelling down survivors' benefits, subject to vested rights, was by no means easy or obvious. It was true that by 2000 the proportion of older women (50-59) who were “economically active” was 65.9% against 72.5% for men. But those figures had to be adjusted to reflect greater part-time working by women (44% as against 9%) and the concentration of women in low-paid occupations. The comparative disadvantage of women in the labour market had by no means disappeared. 24. It was permissible under Article 14 of the Convention for States to treat groups unequally in order to correct “factual inequalities” between them, and the State enjoyed a wide margin of appreciation in determining social and economic policy. Once it was accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment was no longer justified was a matter of legislative judgment.
| 1
|
train
|
001-69198
|
ENG
|
TUR
|
CHAMBER
| 2,005
|
CASE OF ASLANGIRAY AND OTHERS v. TURKEY
| 4
|
Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient
|
Nicolas Bratza
|
4. On 19 July 1993 the applicants brought separate actions before the Baskil Civil Court of First Instance against the National Water Board. They alleged that their plots of land had been illegally seized by the administration for dam construction without any payment being made and requested compensation in this respect. 5. On 2 December 1993 the Baskil Civil Court of First Instance held that the cases should be characterised as compensation claims arising from expropriation rather than compensation claims arising from the illegal seizure of the applicants’ land since a committee of experts had assessed the value of the land and this amount had been paid by the authorities to those who were indicated as the owners of the land in the Land Registry. The court ordered the administration to pay the applicants an amount of increased compensation, plus interest at the statutory rate, running from 1986, when the plots of lands were submerged in the waters of the dam. 6. On 6 October 1994 the Court of Cassation quashed the judgments of the first-instance court and held that the cases could not be characterised as compensation claims arising from expropriation. The applicants requested rectification of the decisions of the Court of Cassation. 7. On 7 March 1995 the Court of Cassation rectified its decisions, holding that the cases could be characterised as compensation claims arising from expropriation. It quashed the judgments of the first-instance court only in respect of the date from which the statutory rate of interest began to run from. 8. On 9 October 1997 the first-instance court abided by the ruling of the Court of Cassation. It accordingly ordered the administration to pay Ali Aslangiray, Fatma Özbilge and Gülsüm Özbilge 303,510,000 Turkish liras (TRL) (approximately 1,540 euros (EUR)), TRL 216,503,800 (approximately EUR 1,100) and TRL 424,914,000 (approximately EUR 2,155) respectively, plus interest at the statutory rate, running from 19 August 1993, the date on which the ownership of the property was transferred to the National Water Board. The National Water Board appealed. 9. On 17 March 1998 the Court of Cassation upheld the judgments of the Baskil Civil Court of First Instance. 10. On 2 April 1998 the decisions of the Court of Cassation were served on the applicants. 11. On 11 November 1998 the administration paid the applicants the amounts due together with interest. 12. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16).
| 0
|
train
|
001-77782
|
ENG
|
BGR
|
CHAMBER
| 2,006
|
CASE OF RADOSLAV POPOV v. BULGARIA
| 4
|
Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5
|
Peer Lorenzen
|
5. The applicant was born in 1977 and lives in the village of Nedelevo. 6. Two burglaries were committed in the home of an old lady on 13 and 31 May 1998 as a result of which the burglar, through use of force and coercion, stole a total of 10,000 old Bulgarian levs (BGL – approximately 5.13 euros (EUR)). On the latter occasion, the burglar was also armed. 7. A preliminary investigation in respect of the second burglary was opened against an unknown offender on 2 June 1998. 8. On 24 September 1998 the applicant was charged with the two burglaries and was detained on remand. He was questioned on the same day and confessed to having committed the burglaries. 9. On 10 November 1998 the Plovdiv District Prosecutor's Office filed an indictment against the applicant with the Plovdiv District Court accusing him of having committed the two burglaries through use of force and coercion, having stolen a total of BGL 10,000 (approximately EUR 5.13) and for having been armed on the second occasion (Articles 198 § 1 and 170 § 2 of the Criminal Code). 10. The Plovdiv District Court conducted five hearings between 4 May 1999 and 10 April 2000. 11. In a judgment of 10 April 2000 the Plovdiv District Court found the applicant guilty as charged and imposed a cumulative sentence of four and a half years' imprisonment. The applicant appealed against the judgment on 21 April 2000. 12. The Plovdiv Regional Court conducted three hearings on 17 May, 13 June and 14 September 2000. 13. In a judgment of 21 September 2000 the Plovdiv Regional Court partly quashed the lower court's judgment as it found that the applicant had not used force during the burglary of 13 May 1998. It upheld the remainder of the judgment against the applicant. 14. No appeal was filed against the judgment of the Plovdiv Regional Court and it entered into force. 15. On 24 September 1998 the applicant was detained on remand upon a decision of an investigator which was confirmed by the Prosecutor's Office later on the same day. The grounds for detaining the applicant were that he may abscond, re-offend or obstruct the investigation but no specific facts or evidence in support of the said assessment were cited or relied on in the decision for his detention. On 10 April 2000 the Plovdiv District Court sentenced the applicant to four and a half years' imprisonment. 16. At the trial stage of the proceedings the applicant filed six appeals against his detention, dated 2 and 15 July 1999, 8 and 28 September 1999, 20 December 1999 and 12 January 2000. On each occasion, the applicant argued that he had no criminal record and that there was no risk that he would abscond because he had a permanent address and his wife needed his assistance after the birth of their child. 17. None of the applicant's appeals were examined or ruled on by the courts despite of the hearings conducted by the Plovdiv District Court in the meantime. 18. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 19. As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the recent Court judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006). 20. The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2). The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004).
| 1
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train
|
001-84293
|
ENG
|
POL
|
CHAMBER
| 2,008
|
CASE OF P.P. v. POLAND
| 4
|
Violation of Art. 8
|
Giovanni Bonello;Javier Borrego Borrego;Kristaq Traja;Lech Garlicki;Nicolas Bratza
|
6. The applicant lives in Torri di Quartesolo, Italy. 7. In 1991 the applicant married a Polish national K.P. In 1992 K.P. gave birth to their first daughter A. In 1996 the second daughter, B, was born. The family lived in Italy. 8. In summer 1999 K.P. took A and B on holiday to Poland. Subsequently, she failed to return to Italy with the children and they remained in Poland. 9. In September 1999 K.P. filed with the Poznań Regional Court an application for divorce. 10. On 6 September 1999 the applicant applied to the Polish Ministry of Justice – designated as a central authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”) – for assistance in securing the return of the children. 11. On 11 October 1999 the Venice Court for Minors allowed an application submitted by the applicant and made an interim order granting him custody of A and B. 12. On 9 November 1999 the Poznań District Court made an interim order requiring A and B to remain in Poland during the proceedings concerning the application for their return. 13. On 14 November 1999 the applicant asked the Poznań District Court to grant him visiting rights. 14. On 17 November 1999 the Poznań District Court allowed the application and granted the applicant visiting rights. In particular, the court granted him the right to visit his children four times a month and to take them outside the flat in which they lived. K.P. appealed against this decision but her appeal was dismissed on 14 December 1999. However, she interfered with the applicant's visiting rights and in the course of the next three months he had to be assisted on three occasions by police officers in order to enforce his visiting rights. 15. On 19 November 1999 the Poznań District Court dismissed K.P.'s request that the case concerning the return of the children be either joined to the divorce case or stayed. The court gave the following reasons for its decision: “Pursuant to Article 16 of the Hague Convention after receiving notice of a wrongful removal or retention of a child within the meaning of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention. That is why the court has informed the Regional Court that it is necessary to stay proceedings in the divorce case.” 16. At the hearing held on 26 November 1999 the court decided to order an expert opinion. 17. On 11 January 2000 the Poznań Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted to the Poznań District Court an expert opinion in reply to the court's inquiry whether the wellbeing of A and B would be threatened by their return to their father in Italy. The opinion ended with the following conclusions: “1. The well-being of [A and B] will not be threatened if they are returned to Italy together with their mother. Reuniting the children only with their father would result in repeating an abnormal situation prevailing at the moment. Moreover, in view of the age of the children, and in particular the age of [B], depriving them of the permanent presence of their mother would lead to the inability to fulfil their development needs concerning the mother; 2. the possibility of leaving the children in the custody of their mother in Poland should only be considered if their father could be guaranteed more significant participation in their lives, including contact without the participation of other persons. However, the attitude of the mother does not guarantee that such a right and the needs of the children would be secured.” 18. On 7 February 2000 the Poznań District Court allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that the removal of A and B had been wrongful under Article 3 of the Hague Convention. K.P. appealed against this decision to the Poznań Regional Court. 19. On 15 May 2000 the Venice Court for Minors granted the applicant the custody of A and B and ordered that they be returned to Italy. 20. On 2 and 16 June 2000 the Poznań Regional Court held hearings. On the latter date it allowed an appeal lodged by K.P., quashed the decision of 7 February 2000 and remitted the case to the District Court. 21. On 21 October 2000 the court held a hearing at which it ordered that a new expert opinion be prepared. 22. On 20 November 2000 the Poznań Family Consultation Centre submitted to the Poznań District Court the expert opinion, which ended with the following conclusions: 1. The return of the children to Italy without the mother will be difficult for them as it will be damaging. However, we should point out that such damage is experienced by children who grow up separated from one of their parents. That is why in our previous opinion we suggested as the best solution the return of the girls to Italy together with their mother (...). 2. As to the scope of damage caused to the minors by their return to Italy without their mother, we are of the view that: - there is no danger of physical damage because the living conditions in Italy guaranteed by their father are proper (...); - the minors have emotional bonds with their mother and they will suffer because of her absence – it will be impossible for them to fulfil their development needs related to the mother, and this will cause them psychological damage. 3. The assessment of all the problems of the children caused by their return to Italy without the mother leads us to the conclusion that it will not expose them to irreparable damage because: - they are going back to their father with whom they have emotional bonds; - they have a feeling of belonging to him and he used to play an important role as a parent. (...); - they are going back to the environment which is familiar to them as they grew up in it and this will facilitate their adaptation; - [B] is reaching the age in which contacts with peers become important and her needs can no longer be fulfilled only in the family; the role of the father also becomes more important at that age; - the possibility of adaptation of [A] is even greater than her younger sister's as she concentrates on problems related to her school life. (...); - both minors' psychological and physical development is good and they do not require special conditions for their development. 4. Both minors are of a young age and have not reached a degree of maturity which would allow their opinions to be taken into account concerning the choice of the parent with whom they would like to live. In addition to the lack of maturity of the minors, the value of such opinions would be doubtful because of the influence to which they are presently subjected (...). 23. On 10 December 2000 the Poznan Family Centre submitted an additional expert opinion. The experts were heard on 4 and 5 January 2001. 24. On 5 January 2001 the Poznań District Court again allowed an application for the return of the children lodged by the applicant and ordered K.P. to return them to the applicant. The court considered that K.P. had unlawfully abducted the children. It also observed that: “the court also draws the attention to the fact that [K.P.] does not obey the law in Poland as she does not comply with a final court decision concerning the father's contacts with the children (she does not allow the father to take the children away from their place of residence). Therefore, the children cannot stay with their father and he cannot participate in their education.” (...) The court would also point out that the applicant's behaviour does not disclose contempt of court. His bitter words directed at the justice system were caused by the despair and bitterness of a father and were justified since the proceedings in the present case have already lasted a year and a half and [K.P.] still does not comply with the court decision granting him visiting rights.” 25. K.P. appealed against the decision of 5 January 2001 but on 1 June 2001 the Poznań Regional Court dismissed her appeal. On 8 June 2001 the court declared that the decision was enforceable (klauzula wykonalnosci). 26. K.P. lodged a cassation appeal against the decision of 1 June 2001. However, it was rejected on the basis that it was not provided for by the law. 27. On 19 July 2001 the applicant requested the enforcement of the final decision of 5 January 2001. On 10 September 2001 the court's bailiff requested K.P. to return the children to the applicant within one week. On 27 December 2001 the court ordered the bailiff to enforce the court's decision. Since K.P. failed to comply, on 31 December 2001, the bailiff discontinued the proceedings. 28. On 29 October 2001 the Poznań District Court dismissed K.P.'s application in which she requested that the final decision should not be enforced. 29. On 8 January 2002 the Poznań District Court ordered a court guardian (kurator sądowy) to forcibly remove A and B from K.P. under Article 5986 of the Code of Civil Proceedings. 30. On 8 January 2002 two guardians, assisted by police officers and accompanied by a representative of the Italian embassy, visited three different houses looking for A and B. The applicant was also present. The children were not found at any of those locations. Despite some indications that the children could have been in the second house visited, the police officers refused the guardians' request to enter the house since they did not have a search warrant. 31. On 16 January 2002 K.P. appealed against the enforcement order of 8 January 2002 but on 1 February 2002 her appeal was rejected as it was not provided for by the law. Her appeal against the latter decision was dismissed on 27 May 2002. 32. On 17 January 2002 the court guardian requested the Poznań Regional Prosecutor to institute criminal proceedings against K.P. on charges of abduction according to Article 211 of the Criminal Code. 33. K.P. filed with the Poznań District Court an application challenging judge B.B. but it was finally dismissed on 6 August 2002. 34. On 31 January 2002 two guardians assisted by police officers and accompanied by a representative of the Italian embassy attempted to enforce the court's order. K.P. and the children were not found in the house they visited. 35. On 10 July and 30 September 2002 the guardian informed the court that her attempts to obtain information about the children were still unsuccessful. On 19 September 2002 the guardian asked whether A had been attending a particular school. On 7 October 2002 the Director of the school confirmed that K.P. had paid for tuition, however due to illness A had not been attending classes. 36. On 18 October 2002 the police informed the court of the address where A and B were staying with their mother. The court guardian went to this address on 21 October 2002 but the children were not there. 37. Apparently, on 7 January 2003 K.P. proposed a friendly settlement with the applicant. He refused. 38. On 27 January 2003 the court guardian attempted to remove the children from the last known address but there was no sign of them again. 39. On 28 January 2003 the Poznań District Court ordered that the children be taken by the court guardian at any time. On 29 January 2003 the guardian unsuccessfully tried to enforce the order. 40. In February 2003 the District Court requested several institutions to submit information about the whereabouts of K.P. and the children. 41. On 13 February 2003 the Poznań District Prosecutor discontinued the criminal proceedings against K.P. on charges of abducting and hiding A and B because she considered that the abduction and hiding were of “minimal social harm” (społeczna szkodliwość czynu jest znikoma). On 25 September 2003 the Poznań District Court dismissed an appeal by the applicant against the prosecution service's decision of 13 February 2003 to discontinue the criminal proceedings against K.P. on charges of abduction and hiding of A and B. 42. On 6 April 2003 two guardians, assisted by police officers and accompanied by a representative of the Italian embassy, went to a property situated in B. M. in order to enforce the court order. The property consisted of a house and a plot of land located in a forest and belonging to the local forest warden. It was surrounded by police officers. K.P., her sister and A and B were inside the house. When guardians entered the house A said that she did not want to be reunited with her father and K.P. used insulting language with respect to the applicant and the court which had ordered the return of the children. Subsequently, the guardians called an ambulance. After a doctor had examined A and B, the guardians decided that they would not enforce the court order. The guardians, the police officers and the representative of the Italian embassy left the property. 43. Immediately after the attempt to remove the children, K.P. left with A and B and remained in hiding at least until September 2003. Since then they have been living in K.P.'s father's house in P., where the children attend schools. 44. On 25 July 2003 the Poznań District Court suspended the enforcement proceedings concerning the return of the children to the applicant. The court gave the following reasons for its decision: “On 5 January 2001 the Poznań District Court (...) made an order in a case IX Nsm 469/00 ordering [K.P.] to return the minors [A and B] to their father [P.P.] who lives in Italy. The order was made on the basis of the Hague Convention on the Civil Aspects of International Child Abduction. The order was appealed. On 1 June 2001 the Regional Court dismissed appeals lodged by [K.P.] and the District Prosecutor. The order is final and enforceable. [K.P.] has been in hiding with the children for more than two years and she makes it impossible to enforce the order. She has recently returned to her original place of residence and she has lodged an application under Article 577 of the Code of Civil Procedure to reject [P.P.'s] request to return the children. The court has doubts whether it is possible to change an order made under the Hague Convention and to give a contradictory decision under Article 577 of the Code of Civil Procedure. In view of these doubts the court has decided to submit the case (...) to the Regional Court as it raises serious doubts. At the same time, the court has stayed the enforcement until the final ruling in the case.” 45. On 2 September 2003 the Poznań Regional Court dismissed an appeal by the applicant against the decision of 25 July 2003. 46. On 19 September 2003 the Poznań Regional Court refused the District Court's request of 25 July 2003 and returned the case to the District Court. The court considered that it was possible to change the court's order to return minors but such proceedings must be based on the Hague Convention and decided in the light of the principles embodied in the European Convention on Human Rights. In particular, the change of the order could not be a consequence of the authorities' failure to take all the measures that could reasonably be expected to enforce the order. 47. On 14 October 2003 the Poznań District Court decided that the enforcement proceedings would be stayed until the date of the final ruling on K.P.'s application to change the court order requiring her to return the children to the applicant. 48. On 5 January 2004 the Poznań District Court held a hearing in the proceedings concerning K.P.'s application to change the court order concerning the return of the children. At this hearing the court heard evidence from K.P. 49. On 7 March 2004 the applicant asked the court to determine his contact with the children. At the hearing held on 25 October 2004 the parties agreed that the applicant would have a right to two phone calls per month with A and B. This order was amended on 15 April 2005 by the Poznan District Court, which decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence. 50. On 27 March 2005 the applicant met his daughters for the first time since 2001. The visit took place in the house of K.P.'s father. The applicant was allowed to speak with his older daughter A but the grandfather, assisted by private security guards, stopped him from entering the second floor of the house to see his younger daughter. 51. On 7 June 2005 the Poznan District Court quashed the decision of 5 January 2001 and decided not to return the children to the applicant. The court justified the review of the final decisions ordering the return of children to Italy, under Article 13 of the Hague Convention, by reference to a risk that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation. It based its assessment on the visits that had been carried out in the place of residence of the children, in September and October 2003, and on the opinion of the Poznań Family Consultation Centre of 27 October 2003. The court established that during their six-year stay in Poland the girls had fully assimilated in the country, spoke Polish, and had forgotten their life in Italy. Their emotional bond with their mother was very strong. The emotional tie between A and her father was distorted as she rejected him, disapproved of him and wished to stay with her mother in Poland. The bond between the younger B and the applicant was considered by the experts as suppressed. In those circumstances the court found that the best interest of the children required quashing the decisions ordering their return to Italy, as separating A and B from their mother could be dangerous for their mental state and could place them in an intolerable situation. 52. On 8 July 2005 the applicant, represented by his lawyer, lodged an appeal against the decision. 53. On 11 October 2005 the Poznan Regional Court dismissed the appeal. The decision is final. 54. On 28 November 2005 the Poznan District Court resumed the enforcement proceedings and decided that in the light of the decision of 7 June 2005 the enforcement of the order to return the children should be finally discontinued. 55. Simultaneously, the Italian courts were dealing with the applicant's case. On 24 February 2005 the Venice court granted the applicant sole custody of A and B. On 28 November 2005 the Venice court gave a decision in which it deprived K.P. of her parental authority over A and B. The decision is final. 56. On 1 December 1999, in the course of the divorce proceedings instituted by K.P., the Poznań Regional Court ordered the applicant to pay 1,000 Polish zlotys (PLN) monthly in child support. The applicant submitted that he had been notified of the reasons for this decision in December 2000. 57. As the applicant was not paying child support the Poznań District Prosecutor instituted criminal proceedings against him, on a request made by K.P. On 25 January 2002 the Poznań District Court ordered the pre-trial detention of the applicant for a period of one month. Subsequently, the prosecutor issued an arrest warrant against him. 58. On 14 October 2002 the Poznań Regional Court ex officio quashed its decision of 1 December 1999. 59. On 20 July 2004 the applicant's lawyer applied to change the preventive measure imposed on the applicant. 60. On 22 July 2004 the Poznan District Prosecutor dismissed his request as it found that bail would not secure the applicant's appearance at his trial. That decision was upheld by the Poznan District Court on 19 October 2004. 61. Another request to quash the decision ordering the applicant's detention was dismissed by the Poznan District Prosecutor on 15 January 2005. The applicant's lawyer appealed against this decision. 62. On 9 March 2005 the Poznan District Court allowed the appeal and quashed the applicant's detention order. The court established that the reason for which the detention had been imposed, the impossibility of establishing the applicant's address in Poland, was no longer a valid ground as he had appointed a representative in the case. Moreover, it had not been substantiated that the applicant would avoid his trial. 63. On 17 May 2004 the Poznan Regional Court during the divorce proceedings decided to dismiss K.P.'s request for child support from the applicant. The court found that since K.P. has been keeping the children illegally and has not allowed the enforcement of final decisions, supporting the children should remain her sole responsibility. 64. On 7 September 2004 the Poznan Court of Appeal dismissed an appeal by K.P. against this decision. 65. On 11 January 2005 the Poznan Regional Court dismissed another request lodged by K.P. to grant her child support from the applicant. Her appeal against this decision was dismissed on 15 February 2005 by the Poznan Court of Appeal. 66. The Hague Convention was published in the Polish Official Journal on 25 September 1995. Article 7 of the Hague Convention reads, in so far as relevant: “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) To discover the whereabouts of a child who has been wrongfully removed or retained; (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) To exchange, where desirable, information relating to the social background of the child; (e) To provide information of a general character as to the law of their State in connection with the application of the Convention; (f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; (g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” 67. Pursuant to Article 11: “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 of 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. ...” 68. Article 13 provides as follows: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.” 69. The 1964 Code of Civil Proceedings (Kodeks Postępowania Cywilnego) in Article 577 provides as follows: “The custody court can change its decision if the best interests of the person it concerns so require.” 70. The amendment to the Code introduced on 19 July 2001, which entered into force on 27 September 2001, deals with the proceedings concerning the return of children under the Hague Convention. 71. Article 5986 provides, that if a person who is ordered to return a child does not comply with the court's order, the court will instruct the guardian to remove the persons concerned forcibly (przymusowe odebranie osoby). According to Article 59810: “Upon a request of a court guardian, the police are obliged to help him in carrying out the forcible removal of [a minor].” Article 59811 § 1 provides as follows: “If forcible removal of [a minor] is hindered because that person is hidden or because other action is taken with the aim to stop the enforcement of the order, the court guardian shall inform a prosecutor.” Pursuant to 59812: “§ 1 The court guardian, in carrying out the removal of [a minor], shall be especially careful and shall do everything to ensure that the well-being of that person is not disturbed and that [he or she] does not sustain physical or moral harm. If necessary, the guardian shall request the assistance of the social services or another institution tasked with this function. § 2 If the well-being of [a minor] would be in danger as result of the removal, the guardian shall stop the enforcement of the order until the danger is over, unless the stopping of the enforcement would cause greater danger to the person.” 72. As regards visiting rights, according to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, decisions on access rights are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8). 73. If a court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation. This article provides: “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.” 74. Article 1092 of the Code provided as follows: “When taking away a person who is the subject of parental authority or who is in care, the bailiff shall be especially careful, and shall do everything to protect such a person from physical or moral harm. The bailiff shall request the assistance of social services, or another institution tasked with this, or a court expert.” 75. Article 211 of the 1997 Criminal Code (Kodeks Karny) provides as follows: “Whoever, contrary to the will of the person appointed to take care of or supervise, abducts or detains a minor person under fifteen years of age or a person who is helpless by reason of his mental or physical condition shall be liable to a penalty of deprivation of liberty for up to three years.”
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train
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001-104874
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ENG
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UKR
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ADMISSIBILITY
| 2,011
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RODIVILOV v. UKRAINE
| 4
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Inadmissible
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Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mark Villiger
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The applicant, Mr Oleg Leonidovich Rodivilov, is a Ukrainian national who was born in 1965 and lives in Simferopol, Ukraine. The applicant is a member of the Verkhovna Rada of the Autonomous Republic of Crimea (“the ARC”) (the representative body of the ARC) (“Верховна Рада Автономної Республіки Крим”) and a member of the citizens’ association “The Russian Community of the Crimea”. On 9 November 2004 in a plenary meeting of the Verkhovna Rada of the ARC the applicant said the following: “I am empowered by the voters to inform you that if by November 17, thus by the next session of the Verkhovna Rada, there has been no decision on the legal confirmation of the status of the Tikhaya Bukhta nature reserve area (Тихая бухта), the ordinary citizens will themselves put a stop to the unlawful acquisition of land. Today extremists from the Majlis-Kurultai radical group are freely bringing construction materials to the Tikhaya Bukhta, openly and insolently breaching Ukrainian and Crimean laws.” The Kurultai of Crimean Tatars is a representative body for the Crimean Tatars, which, according to its Rules of Procedure decides on all essential issues of political, economical and cultural life of Crimean Tatars. The Majlis is an executive body of the Kurultai. They regularly hold sessions. However, there are no official legal acts which determine the legal status of these bodies. The members of the Majlis are allegedly members of the Council of Crimean Tatars Representatives affiliated with the President of Ukraine (Decree of the President of Ukraine of 18 May 1999 no. 518/99). On 12 November 2004 the journalist A. published an article in the Golos Kryma (“Голос Крыма”) newspaper – ‘An MP threatens the Crimean Tatars’ (‘Депутат грозит крымским татарам’). The article said the following: “As always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Radivilov, MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”. In his opinion, despite prohibitions, the Majlis assisted the “invaders” in bringing construction materials into the national reserve zone. He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders”. On 8 July 2005 the Golos Kryma newspaper published a letter from the applicant: “On 12 November 2004 Golos Kryma (issue no. 46 (573)) published an editorial by the journalist [...] named ”An MP threatens the Crimean Tatars”. In the article it is intentionally falsely stated that allegedly “as always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Rodivilov MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”... He threatens ...” (as follows). This information in the article is intentionally biased, incites inter-ethnic hatred rage and as it references me as a representative of the Russian Community of the Crimea in the Parliament of the Crimea, it threatens to worsen relations between the two largest ethnic groups of the Republic of Crimea. Besides, the libel was intended to humiliate me as a member of the Supreme Council of the Crimea in the eyes of my voters, citizens of various ethnic origins. These provocative and above all intentionally false articles in the Golos Kryma newspaper, which was founded by the State Committee on Ethnic Relations, systematically disseminated in this weekly publication (most recently on 18 and 25 March 2005), discredit me as a citizen. My systematic unreasonable harassment in the pages of Golos Kryma I perceive as an intention on the part of the editors to humiliate me as a citizen of Russian ethnic origin. The aforementioned untrue statements in Golos Kryma serve as a basis for this. [...] In this respect, in accordance with the law in force, I demand publication of an editorial in the next issue of Golos Kryma to correct this statement in full. I also demand public apologies from the editors, to be published together with my statement.” On the same page the newspaper also published an article by the journalist A. – “Do not step on journalists’ throats, do not knock the pen out of their hands!” (“Не наступайте на горло журналистам, не вышибайте из рук перо!”), in which the journalist quoted the applicant’s speech of 9 November 2004 and said the following: “As a journalist accredited to the Verkhovna Rada of the ACR, I attend all the meetings of the parliamentary sessions, of the presidium, and of the commissions and so on and know about O.Rodivilov’s speeches first-hand. And whether written reproduction of an oral statement can be called a libel? According to the author of the letter, my information only reflects what has been said from the high tribune by the member of the Verkhovna Rada of the ARC, O.Rodivilov. And he has absolutely correctly mentioned that such things incited racial hatred. I quote the record of a special session of the Verkhovna Rada of the ARC of 9 November 2004 [...] I believe you would agree with me that these words pronounced from the high tribune, cannot only incite “racial hatred”, but would simply provoke radical actions by ordinary citizens against the Crimean Tatars. From the high tribune of the Verkhovna Rada of the ARC and whenever possible Mr Rodivilov discredits the publicly elected Majilis, legitimised by a decree of President Kuchma (and not banned by acting President Yushchenko) as the Council of Representatives of the Crimean Tatars affiliated with the President of Ukraine. Therefore, all thirty-three members of the Majilis are members of this Council. The member of the Verkhovna Rada of the ARC, elected by “citizens of various ethnic origins”, “representative of the Russian Community of the Crimea in the Parliament of the Crimea”, calls the members of the Council extremists from the radical group “Majilis-Kurultai”. So who is it who threatens to worsen the relationships between citizens? I quote the record of the meeting of the Verkhovna Rada of the ARC of 16 March 2005. Appealing to the thirteen-year-old documents, he requested “to bring the group of Majilis-Kurultai, into conformity with law. This is an extremist Muslim group and there are a lot of documents in this respect in your main office”. Not everybody can spend time lodging applications with various bodies as Mr Rodivilov does, and forcing journalists, instead of [fulfilling] their direct duties, to write explanations to various bodies, which already have enough to do. In all likelihood he has his special reasons and I think I know what they are. As they say today, he wants to run a “PR campaign” before the elections. “Golos Kryma is involved in provocations”, - states the member of the Verkhovna Rada of the ARC O.Rodivilov”. That was the title of an article in Russkiy Mir, in which its author accuses several employees of the newspaper [...] of bias and provocation. Besides, the member of Parliament O.Rodivilov complained to the Simferopol Prosecutor’s Office, to the Tsentralnyy District Prosecutor’s Office, and to the Permanent Representative of the President of Ukraine in the ARC, [...]. And if it takes nearly a whole day to provide explanations to one of these bodies (those who worked in the mass media when there was censorship remember those “nice” times very well), our honourable reader will understand how long it will take to write explanations to all these bodies. You can forget about your work as a journalist, which was probably what the MP wanted.” In November 2005 the applicant instituted civil defamation proceedings in the Tsentralnyy District Court of Simferopol against the newspaper Golos Kryma. He stated that in the articles he had been accused of inciting racial hatred and humiliated as a citizen of Russian ethnic origin. The applicant stated that he “was fighting against the Majlis-Kurultai criminal organisation and not against the Crimean Tatars”. He requested it to be published that the statements about him published on 12 November 2004 and 8 July 2005 were defamatory. He also claimed 100 Ukrainian hryvnias in compensation for non-pecuniary damage. The applicant later amended his claims and requested publication of a correction. On 3 July 2006 the court found in part for the applicant. It held that in his speech of 9 November 2004 the applicant had requested that a decision be urgently adopted on the legal status of a nature reserve and tried to warn the members of the Verkhovna Rada about the possible consequences of not doing so. Therefore, the court found that the expressions “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were defamatory. The court ordered the newspaper to publish the operative part of its decision. The remainder of the applicant’s claim was rejected. On 30 January 2007 the Court of Appeal of the ARC quashed this decision and rejected the applicant’s claims. It found that: “When adopting its decision, the court did not take into account that the author’s expressions: “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were value judgments and their veracity was impossible to prove. The claimant is a public figure. The panel of judges agrees that the newspapers which quoted the statements of MP Rodivilov, were more tendentious and harsher interpretations of his speech. They include the author’s perceptions and her critical evaluation of the claimant’s sayings. However, when choosing his profession, the applicant left himself exposed to harsh criticism and close scrutiny; that is the burden that politicians bear in a democratic society. In such circumstances, the present value judgments are not the reasons for limitation of the defendant’s rights under Article 10 of the Convention and for interference with freedom of speech by the State.” On 25 June 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. Relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to correction of unaccurate statements about himself or herself and members of his or her family, and of the right to demand that any type of statement be expunged, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect statements.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” Relevant extracts from the Civil Code read as follows: “1. A person shall have the right to compensation for non-pecuniary damage in the event of an infringement of his/her rights. 2. Non-pecuniary damage may consist of: ... 4) humiliation and damage to the honour and dignity of a physical person, as well as the professional reputation of a physical or legal person...[defamation]...” “1. A physical person whose personality rights are breached as a result of inaccurate statements being disseminated about him or her shall be entitled to a response as well as to a correction of those statements. ... 3. The negative information disseminated about a person shall be considered as untruthful unless the person who has disseminated it can prove the opposite. ... 6. A person whose rights have been infringed ... shall have the right to a response and the publication of a correction in the same mass media source and in accordance with the procedure established by law. ... Correction of untrue statements shall not depend on the actual guilt of the person who disseminated them. 7. Untrue statements shall be corrected in the same manner as they were disseminated.” The relevant extracts from the Information Act provide as follows: “...Liability for infringement of legislation on information shall be borne by persons responsible for the following infringements: ...dissemination of material that does not correspond to reality or defames the honour and dignity of a person...” “No one may be held liable for making value judgments. Value judgments, excluding insults and libel, are statements which do not contain factual data, in particular, criticism, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truth need not be proved...”
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train
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001-109064
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ENG
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POL
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COMMITTEE
| 2,012
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CASE OF GALAZKA v. POLAND
| 4
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Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
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Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
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5. The applicant was born in 1979 and lives in Warsaw. He is currently detained in Warsaw Remand Centre. 6. On 21 December 2004 the applicant was held in custody. It does not result from the case-file whether the applicant remains detained in this set of proceedings. 7. On 5 April 2006 the applicant was arrested on suspicion of murder, attempted robbery and drug trafficking committed in an organised criminal group. 8. On the same date the Białystok District Court (Sąd Rejonowy) remanded him in custody, relying on a reasonable suspicion that he had committed the offences in question. The court indicated that the evidence which had been gathered in the case, in particular the testimonies of witnesses and other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the risk that he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices. 9. An appeal by the applicant against the detention order, likewise his further appeals against decisions extending his detention and all of his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. 10. In the course of the investigation, the applicant’s pre-trial detention was extended on several occasions, namely, on 27 June 2006 (to 5 October 2006), 29 September 2006 (to 5 December 2006), 28 November 2006 (to 5 March 2007), 2 March 2007 (to 5 May 2007), 27 April 2007 (to 5 August 2007), 30 July 2007 (to 5 November 2007) and 30 October 2007 (to 5 February 2008). In their decisions, the courts stressed the fact that the applicant had been acting in an organised criminal group. They underlined the unique nature of the proceedings involving organised crime, in which the authorities had to determine the degree of alleged responsibility of each of the suspects. The courts attached importance to the seriousness of the charges and the likelihood of a severe sentence being imposed on the applicant. 11. On 30 January 2008 the Białystok District Court refused to extend the applicant’s detention. It stated that the applicant had been held in pretrial detention since April 2006 and that this period should have been sufficient for the authorities to collect evidence in the applicant’s case. In addition, it considered that the decision about the extension of the applicant’s pre-trial detention beyond the period of three months should be taken by the Białystok Regional Court (Sąd Okręgowy). 12. The Prosecutor lodged an interlocutory appeal against this decision. 13. On 13 February 2008 the Białystok Regional Court amended the contested decision and extended the applicant’s pre-trial detention to 5 May 2008. The court argued that as the applicant was remanded in custody in the first set of criminal proceedings, his detention in the second set of proceedings was merely administrative. It further stated that the applicant was charged with serious offences committed in an organised criminal group and that there was a high risk that, if released, he would attempt to induce witnesses to give false testimony or, by other means, would obstruct the proceedings. Finally, the court observed that the Prosecutor could not have completed the investigation as evidence in proceedings involving organised crime often emerged gradually. 14. On 29 April 2008 the Białystok District Court extended the applicant’s detention to 5 June 2008. 15. On an unspecified date the Prosecutor requested the Białystok District Court to extend the applicant’s detention to 5 September 2008. 16. On 4 June 2008 the Białystok District Court extended the applicant’s detention to 31 July 2008. The court observed that the applicant’s pre-trial detention had been extended for over two years almost automatically and it did not seem that the investigation was reaching its final stage. It concluded that the extension of the applicant’s detention for a shorter period than was requested by the Prosecutor should prompt the authorities to accelerate the acts of investigation regarding the applicant. 17. The applicant lodged an interlocutory appeal against this decision claiming that he had been detained for over 26 months and that this period should have been sufficient for completing the investigation. 18. On 9 July 2008 the Białystok Regional Court quashed the contested decision. It stated that the decision about the extension of the applicant’s pre-trial detention beyond the period of one year should be taken by the Białystok Court of Appeal (Sąd Apelacyjny). 19. On 17 July 2008 the Białystok Court of Appeal extended the applicant’s detention until 31 August 2008. The court underlined the complexity of the case and the severity of the penalty to which the applicant was liable. Having regard to the organised character of the alleged criminal activities, it also held that the applicant’s detention was necessary in order to prevent the applicant from interfering with the proceedings. 20. The Prosecutor lodged an interlocutory appeal against this decision claiming that the period of one month would not be sufficient for collecting evidence in the applicant’s case. 21. On 7 August 2008 the Białystok Court of Appeal modified the contested decision and extended the applicant’s detention until 30 September 2008. The court observed that the applicant’ 22. On 17 September 2008 a bill of indictment was lodged with the Białystok Regional Court. The applicant was charged with murder, attempted robbery and drug trafficking committed in an organised criminal group. 23. On 23 September 2008 the Białystok Regional Court extended the applicant’s pre-trial detention to 30 December 2008. 24. In October 2008 the case was referred to the Warszawa-Praga Regional Court. 25. On several occasions the Warszawa-Praga Regional Court applied to the Warsaw Court of Appeal, asking for the applicant’s detention to be extended. The Warszawa Court of Appeal allowed all those requests extending the applicant’s pre-trial detention on 22 December 2008 (to 30 June 2009), 25 June 2009 (to 31 December 2009), 10 December 2009 (to 31 May 2010), 27 May 2010 (to 15 October 2010), 7 October 2010 (to 31 January 2011), 18 January 2011 (to 31 May 2011) and 24 May 2011 (to 30 September 2011). 26. The criminal proceedings against the applicant are still pending. The applicant remains detained. 27. The applicant submitted that during the entire period of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene. 28. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 May 2006.
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train
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001-90786
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF ŞERİFE YİĞİT v. TURKEY
| 2
|
No violation of Art. 8
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
|
5. The applicant was born in 1954 and lives in Gaziantep. 6. The applicant was the partner of Ömer Koç (Ö.K.), with whom she entered into a religious marriage (imam nikah) in 1976 and had six children. Ö.K. died on 10 September 2002. 7. On 11 September 2003 the applicant brought an action before the İslahiye District Court, in her own name and that of her daughter Emine, seeking to have her marriage to Ö.K. recognised and to have Emine entered in the civil register as the deceased’s daughter. 8. In a judgment of 26 September 2003 the İslahiye District Court dismissed the applicant’s action regarding the marriage but granted the request for Emine to be entered in the register as Ö.K.’s daughter. No appeal was lodged and the judgment became final. 9. On an unspecified date the applicant requested the Hatay retirement pension fund (Bağ Kur) to grant her and her daughter Emine the benefit of her deceased partner’s retirement pension and health insurance rights. On an unspecified date the fund refused the request. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside. On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court. 10. In a judgment of 21 January 2004 the Hatay Labour Court rejected the applicant’s application in part. Basing its decision on the judgment of the İslahiye District Court, it found that the applicant’s marriage to Ö.K. had not been validated. Accordingly, since the marriage had not been legally recognised, the applicant could not be subrogated to the deceased’s rights. However, the court set aside the fund’s decision in so far as it related to Emine, granting her the benefit of her deceased father’s pension and health insurance rights. 11. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She pointed out that the extract from the civil register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. The applicant explained that in 1976 she had married Ö.K. in accordance with custom and practice. The couple had had six children, born in 1977, 1980, 1981, 1982, 1985 and 1990. The first five children had been entered in the civil register in 1985 under their father’s name, while the last child, Emine, born in 1990, had been entered under her mother’s name in 2002. The applicant said that on 10 September 2002, while preparations had been under way for an official marriage ceremony, her partner had died following an illness. She asserted that, unlike the couple’s six children, she did not benefit from her late partner’s pension or health insurance rights. 12. In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment. 13. Article 143 of the Civil Code provides: “At the close of the marriage ceremony the official shall issue the couple with a family record book. The religious ceremony may not be performed unless the family record book is produced. The validity of the marriage is not linked to the celebration of the religious ceremony.” 14. The sixth paragraph of Article 230 of the new Criminal Code provides: “Any person who celebrates a religious marriage without having seen the document certifying that a marriage ceremony has been performed in accordance with the law shall be liable to a term of imprisonment of two to six months.”
| 0
|
train
|
001-23957
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,004
|
RAIPOLA v. FINLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Tapani Raipola, is a Finnish national, who was born in 1952 and lives in Oulu. He is represented before the Court by Mr Jorma Herttuainen, a lawyer practising in Oulu. The respondent Government are represented by their Agent Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. In 1989, the applicant set up a limited liability company, Pohjolan Tavarapörssi Oy, with another person. He purchased 50 per cent of the shares. He also became the chairman of its Board of Directors. The company's business activities ended in September 1992. On 23 April 1993, the applicant applied for an income-related unemployment benefit. The Unemployment Fund (työttömyyskassa, arbetslöshetskassan) rejected his application on 18 August 1993, as he was not assessed as being unemployed. The decision was based on the Labour Commission's (työvoimatoimikunta, arbetskraftskommissionen) written statement, according to which, taking into account the applicant's position and partnership in the company, he was regarded as being employed by his own company. The applicant's appeals were subsequently rejected. In 1998, the applicant instituted proceedings before the District Court of Oulu (käräjäoikeus, tingsrätten) against the Employment and Economic Development Centre (työvoima- ja elinkeinokeskus, arbetskrafts- och näringslivscentralen), i.e. formally against the State of Finland, claiming compensation for his financial loss. He argued that before setting up the company, he had called his local Labour Office (työvoimatoimisto, arbetskraftsbyrån), enquiring about the possibilities of receiving unemployment benefits as a shareholder of a company. An official at the Labour Office, X, had allegedly told him that he could receive unemployment benefits, provided he owned less than 51 per cent of the company's shares. Before the District Court, the applicant argued that as his application for an unemployment benefit had been rejected, it meant that X had provided him with incorrect information. The Employment and Economic Development Centre contested the action, arguing that X had not said that the applicant could own less than 51 per cent of a company's shares, which information was incorrect. Moreover, the applicant had failed to make reference to his position in the company during his discussion with X. The applicant and two witnesses, who had overheard the conversation between the applicant and X as the telephone had been switched to the “hands-free” system, gave testimony in the District Court. The witnesses verified that X had said that the applicant would still be entitled to unemployment benefits, provided he owned less than 51 per cent of the shares. On 11 August 1998, the District Court rejected the action, finding that the Unemployment Fund's decision was based both on the applicant's ownership in the company and on his membership of its Board of Directors. The District Court also found that the applicant and X had not discussed whether the membership of the Board of Directors had any effect on the grant of the benefit. Thus, there was no causal link between the incorrect information given by X and the rejection of the application for an unemployment benefit. The applicant appealed to the Rovaniemi Court of Appeal (hovioikeus, hovrätten), requesting an oral hearing and that he and his two witnesses be reheard. He also invoked as new evidence the Unemployment Fund's decision, arguing that the District Court had drawn the wrong conclusions from the wording of the decision. He claimed that his application had not been rejected due to the fact that he was a member of the Board of Directors, but solely on grounds of ownership. Due to this misinterpretation by the District Court, it was essential that the Court of Appeal hold an oral hearing. On 3 December 1998, the Court of Appeal upheld the District Court's judgment. As to the request for an oral hearing, it noted that the applicant admitted not having informed X about his membership of the Board of Directors. Thus, the Court of Appeal found that it was not necessary to evaluate the testimonies concerning the telephone conversation between the applicant and X. Insofar as the applicant argued that the District Court had drawn the wrong conclusions from the Unemployment Fund's decision, it noted that the issue concerned interpretation of and drawing conclusions from written evidence and that the applicant had not proposed any oral evidence on this point. The Court of Appeal rejected the request for an oral hearing as being manifestly unnecessary, as the examination of the case did not depend on the credibility of oral evidence. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), requesting an oral hearing with a view to hearing all three witnesses that had been heard before the District Court, including the opposing party's witness, and a new witness. He also wanted to be heard in person. He argued that the Court of Appeal had wrongly evaluated the evidence and refused his request to rehear his witnesses. On 27 September 1999 the Supreme Court refused him leave to appeal. Under chapter 26 (165/1998), section 14 (1) of the Code of Judicial Procedure, the applicant was in principle entitled to a hearing once he had requested one, but this request could be refused, if a hearing would have been manifestly unnecessary. According to subsection 4, if the Court of Appeal rejects the appellant's request for an oral hearing, he or she shall, where necessary, be reserved an opportunity to supplement the appeal. According to chapter 26, section 15 (1), the Court of Appeal shall hold an oral hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court, or the findings of the District Court in an inspection, or on new testimony to be admitted in the Court of Appeal.
| 0
|
train
|
001-58089
|
ENG
|
ITA
|
CHAMBER
| 1,997
|
CASE OF FUSCO v. ITALY
| 4
|
Art. 6 inapplicable
|
C. Russo;N. Valticos;R. Pekkanen
|
7. Mrs Raffaella Fusco is a secretary and lives in Benevento. 8. On 24 April 1980 she was recruited on a fixed-term contract to the accounts department of Benevento District Council. As her contract had not been renewed after 31 December 1983, she required the Council on 31 July 1984 to reinstate her within sixty days. When that time-limit expired, the applicant applied to the Campania Regional Administrative Court (“the RAC”) on 8 October 1984 for judicial review of her employer's tacit refusal and recognition of the existence of a permanent contract of employment, in consideration, inter alia, of the conditions under which she had performed her duties, which, she asserted, were comparable to those obtaining in the case of an ordinary contract of employment with the administrative authorities. 9. On 26 October 1984 she asked for a date to be fixed for the hearing. 10. On 9 February 1993 the President of the RAC referred the case to the 5th Division. The hearing was held on 18 April 1995. In a judgment delivered on that date and deposited with the registry on 26 September 1995 the RAC declared the application inadmissible. 11. On 21 November 1995 Mrs Fusco appealed to the Consiglio di Stato. According to the information supplied by her lawyer at the hearing before the Court, the proceedings are still pending.
| 0
|
train
|
001-67226
|
ENG
|
GBR
|
GRANDCHAMBER
| 2,004
|
CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM
| 1
|
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
|
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
|
12. The first applicant was born in 1946 and lives in Woking. 13. On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years’ imprisonment. 14. The first applicant’s defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man introduced to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day. 15. The following morning he was told that the plans had changed, as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently addressed as “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing 125,000 pounds sterling (GBP). They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin. 16. At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway on a mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room. 17. According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis Hotel. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom, and when he came out Graham was ready to go. They returned to the van, where the briefcase was opened, and within moments the applicant was arrested. 18. Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard, he considers it relevant that, at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large-scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant’s case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway’s trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant’s own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction. 19. Prior to the commencement of the applicant’s trial, the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 37 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the proceedings before the Chamber, the Government revealed for the first time that the material placed before the trial judge had included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 39 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure. 20. Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (PACE – see paragraph 32 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure. 21. Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant, it was, however, difficult for the defence to undermine Graham’s credibility because his full name and other identifying details were not disclosed. 22. Following his conviction, the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996, the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”. 23. The second applicant was born in 1953 and lives in Tonbridge. Prior to the events in question, he had been of good character and employed as accounts director in a firm which had gone into liquidation a year earlier. At the time of his arrest in July 1995, he was unemployed and in considerable debt. 24. The applicant’s version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995, Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged banknotes. 25. Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who put a certain amount of pressure on him to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched. 26. The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impaired. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, Terry or “Tel”, Jazz or Jag were participating informers or undercover police officers. 27. Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that Chris had been coaxing the applicant, there was no evidence of pressure having been applied. 28. A second submission was then made on the applicant’s behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – Chris and Ian –defence counsel sought guidance from the judge as to the areas of cross-examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross-examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996. 29. On 20 November 1996 he was sentenced to a total of four and a half years’ imprisonment. 30. On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that: “Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.” 31. The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney-General’s Reference (no. 3 of 2000) ([2001] United Kingdom House of Lords Decisions 53), a judgment which followed and approved earlier case-law, including case-law which applied at the time of the applicants’ trials (for example, the judgment of the House of Lords in R. v. Latif [1996] 1 Weekly Law Reports 104). In Looseley, Lord Nicholls of Birkenhead explained (§ 1): “My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the State do not misuse the coercive, law-enforcement functions of the courts and thereby oppress citizens of the State. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the State through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of State power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which State conduct of this nature could have are obvious. The role of the courts is to stand between the State and its citizens and make sure this does not happen.” 32. In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without police incitement (see R. v. Smurthwaite; R. v. Gill (1994) 98 Criminal Appeal Reports 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court’s process and should not have been brought in the first place. 33. In Looseley, the House of Lords agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “State-created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law-enforcement agency was so seriously improper as to bring the administration of justice into question. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement offered by the police, and the more forceful and persistent the police overtures, the more readily a court might conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant’s criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 2629; Lord Hoffmann, §§ 50-71). 34. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence. 35. In December 1981 the Attorney-General issued guidelines, which did not have force of law, concerning exceptions to the common-law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports 302 – “the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows: “... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.” 36. In R. v. Ward ([1993] 1 Weekly Law Reports 619), the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”. 37. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would then have the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. 38. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that, even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. 39. The leading case on disclosure at the time of the applicants’ trials was the judgment of the Court of Appeal in R. v. Keane ([1994] 1 Weekly Law Reports 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”. 40. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant’s innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure. 41. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia: “Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants’ names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...” 42. The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (CIPA), which came into force in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor’s view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused’s defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court. 43. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998IV), the United Kingdom introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney-General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court’s judgment in Jasper v. the United Kingdom ([GC], no. 27052/95, § 36, 16 February 2000). 44. In December 1999 the government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Auld Report as follows (footnotes omitted): “193. The scheme [developed by the common law since R. v. Ward and reflected in the Criminal Procedure and Investigations Act 1996: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant’s interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a ‘special independent counsel’. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias. 194. In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution. 195. The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a ‘third’ or ‘special’ counsel being instructed on behalf of a defendant has been conceded in a number of areas. 196. The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court’s reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury’s verdict into underestimating the significance of the undisclosed material. 197. However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system. I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.” 45. In R. v. H.; R. v. C. [2004] United Kingdom House of Lords Decisions 3, decided on 5 February 2004 after the Chamber judgment in the present case, the Judicial Committee of the House of Lords held, inter alia: “The years since the decision in R. v. Davis [see paragraph 37 above] and the enactment of the CIPA [see paragraph 42 above] have witnessed the introduction in some areas of the law of a novel procedure designed to protect the interests of a party against whom an adverse order may be made and who cannot (either personally or through his legal representative), for security reasons, be fully informed of all the material relied on against him. The procedure is to appoint a person, usually called a ‘special advocate’, who may not disclose to the subject of the proceedings the secret material disclosed to him, and is not in the ordinary sense professionally responsible to that party but who, subject to those constraints, is charged to represent that party’s interests. ... There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII [public interest immunity from disclosure] matters, a defendant in an ordinary criminal trial ... But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to cooperate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. ...”
| 1
|
train
|
001-81693
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF NAİME DOĞAN AND OTHERS v. TURKEY
| 4
|
Violation of Art. 6-1
| null |
4. The applicants were born in 1919, 1948, 1949, 1953 and 1956 respectively and live in different cities in Turkey. 5. The applicants’ predecessor, Mr Hasan Fehmi Doğan, was the owner of a plot of land in Manavgat. On 27 November 1959 he filed an action with the Manavgat Civil Court against certain third persons, whom he claimed were unlawfully occupying his land. He requested that the allegedly unlawful interference be halted. 6. As cadastral work by the authorities started in the area in 1965, the court decided on 16 July 1965 that it no longer had jurisdiction and transferred the case to a court with special jurisdiction in the subject, the Land Registry Court (Tapulama Mahkemesi) in Manavgat. 7. The cadastral work divided the land into six parcels, the ownership of which was separately disputed between the applicants’ predecessor and the occupiers. In 1967, the Land Registry Court joined all six cases. 8. Throughout the proceedings, the applicants’ predecessor on the one hand maintained that the new plots corresponded to the single piece of land already registered in his name. The defendants, on the other hand, claimed that the land records could not possibly relate to those plots as they had purchased the whole piece of land in dispute from its previous, lawful owner. 9. On 27 March 1987 the Land Registry Court ruled in favour of the applicants’ predecessor and ordered the six parcels to be registered in his name. 10. On 25 October 1988, however, the Court of Cassation quashed this judgment on the grounds that there had been an insufficient factual examination of the case. 11. On 27 June 1989 the Land Registry Court resumed the proceedings. On 31 July 1990 it decided to abide by the Court of Cassation’s decision. Accordingly, it conducted a broader factual examination. 12. Notwithstanding that decision, the same court held a hearing on 9 October 1990 and scheduled a new hearing to decide (apparently for a second time) whether or not to abide by the Court of Cassation’s ruling. 13. At the next hearing held on 4 December 1990, the Land Registry Court gave a fresh decision to abide by the Court of Cassation’s ruling. 14. Between 3 September 1991 and 17 July 2002 hearings were held every two to three months. However, several hearings were presided over by different judges. 15. At the hearing on 3 September 1991, the court decided to conduct an on-site inspection (keşif) on 11 November 1991. 16. On 17 March 1992 a new judge was appointed to the court for the second time in four months. As he was unfamiliar with the case, he postponed the inspection. Until the end of 1992, the judge sitting on the bench of the court was changed three more times and the hearings were mainly devoted to the new judges’ gaining familiarity with the dispute. 17. Despite the fact that the court scheduled an on-site inspection several times, it was deferred for various reasons, including the lack of the necessary court stamps in the court’s registry to notify experts and witnesses, the parties’ failure to pay certain fees, the applicants’ failure to bring their witnesses to the inspection site, the parties’ mutual failure to attend the inspection, the judge’s annual leave, the lack of pertinent witnesses, unsuitable weather conditions, the ailing condition of a local witness, the court’s search for suitable new witnesses, the court’s shortage of time due to its hearing backlog and, finally, the defendants’ disorderly behaviour and contempt of court. Throughout this process, the judge presiding over the case was again changed at least four times. 18. The re-scheduled on-site inspection was eventually conducted on 24 September 1998. 19. At the hearing on 29 December 1998, the parties submitted their final observations. From that date until 17 July 2002, the court held a total of fifteen hearings. At the hearing held on that last date, the Land Registry Court dismissed the applicants’ request. 20. On 11 November 2002 the applicants appealed. The Court of Cassation held a hearing on 12 July 2005. 21. On 26 December 2006 the Court of Cassation upheld the Land Registry Court’s judgment. 22. On 26 March 2007 the applicant filed a petition with the Land Registry Court in Manavgat, to be submitted to the Court of Cassation, and requested the rectification of the decision dated 26 December 2006 on the ground that the latter court had rendered a decision which lacked legal and procedural reasoning. According to the applicant’s letter dated 25 June 2007, the proceedings are still pending before the Court of Cassation.
| 1
|
train
|
001-93336
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,009
|
GRUŠOVNIK v. SLOVENIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
|
The applicant, Ms Marija Grušovnik, is a Slovenian national who was born in 1943 and lives in Šempeter. She was represented before the Court by Mr D. Teržan, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General. The facts of the case, as submitted by the parties, may be summarised as follows. 1. On 30 November 1993 the applicant was injured in a car accident caused by a third person. The perpetrator had taken out liability insurance with an insurance company Z.T. (“the insurance company”). 2. On 20 October 1995 the applicant, represented by a lawyer, instituted compensation proceedings against the insurance company at the Celje Local Court (Okrajno sodišče v Celju), claiming a total amount of 2,933,487 Slovenian tolars (SIT – approximately 28,600 euros (EUR)) for pecuniary and non-pecuniary damage, together with default interest. Out of the total amount, she sought SIT 2,900,000 (approximately EUR 28,300) for the non-pecuniary damage sustained, with default interest from the date on which the compensation proceedings had been instituted. 3. On 27 December 1995 the Celje Local Court decided that it did not have jurisdiction to hear the case and submitted the case file to the Celje District Court (Okrožno sodišče v Celju). 4. On 25 February 1997 the applicant requested the court to decide promptly on the case. 5. On 12 May 1997 the first-instance court held a hearing, at which it partly upheld the applicant’s claim for compensation in the amount of SIT 1,933,487 (approximately EUR 18,900) and dismissed the remainder of the claim. Out of the total, the court awarded the applicant SIT 1,900,000 (approximately EUR 18,500) for non-pecuniary damage, together with default interest with effect from the date of the court judgment. It dismissed, however, her claim for default interest with effect from the institution of the compensation proceedings on 20 October 1995 until the delivery of the judgment on 12 May 1997. Both parties appealed. 6. On 9 April 1998 the Celje Higher Court (Višje sodišče v Celju) dismissed the applicant’s appeal and partly upheld the defendant’s appeal, by lowering the amount of compensation awarded to SIT 1,633,487 (approximately EUR 15,943), together with default interest for non-pecuniary damage with effect from 12 May 1997. 7. On 24 June 1998 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče), alleging that the amount of compensation for non-pecuniary damage had not been correctly established in view of all the non-pecuniary damage she had suffered. In addition, the applicant maintained that default interest on compensation for non-pecuniary damage should have been awarded with effect from the date on which the compensation proceedings had been instituted, as allegedly required by the Obligations Act, and not only with effect from the date on which the first-instance court judgment had been delivered. 8. On 3 March 1999 the Supreme Court dismissed the appeal as a whole, holding that the second-instance court had correctly assessed the amount of compensation for non-pecuniary damage and correctly awarded default interest from the day the first-instance court judgment had been issued. In particular, it held that the amount of compensation appeared to be just also with regard to the relatively short period of time the applicant had had to wait for the first-instance court judgment; the first-instance court judgment had been delivered one year and seven months after the applicant had instituted compensation proceedings. In this connection, the Supreme Court referred to the well-established jurisprudence to the effect that persons claiming compensation for non-pecuniary damage were not to be indemnified by an award of default interest for the period from the day the damage occurred until the day the first-instance court delivered judgment. Instead, this factor should be taken into account when determining a just amount of compensation (the principal). The Supreme Court stated that this approach had been adopted since 1987 owing to the unstable economic situation in the country and the high rate of inflation and monetary depreciation in particular. In order to preserve the real value of a compensation claim for non-pecuniary damage, the amount due was therefore determined only on the date of delivery of the judgment. Default interest was thus awarded only from that day onwards, while “Relevant domestic law and practice” below). The applicant lodged a constitutional complaint with the Constitutional Court (Ustavno sodišče). 9. On 11 June 2001 the Constitutional Court declared the complaint inadmissible. It held that the Supreme Court had reached its decision in accordance with well-established jurisprudence, valid since 1987, according to which default interest on compensation for non-pecuniary damage was to be awarded only from the day the first-instance court rendered the judgment. Such approach had been adopted because of the high rate of inflation, in order to calculate the due amount of compensation in accordance with the prices valid on the day the decision was adopted, and not on the day the court proceedings had been instituted. In the Constitutional Court’’s opinion, was generally adopted and was applicable to all disputes concerning non-pecuniary damage. Since the Constitutional Court did not find any violation of human rights, it dismissed the complaint. 10. On 4 July 2001 the Constitutional Court’s decision was served on the applicant. 11. The relevant sections of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, Official Gazette of the Republic of Slovenia, No. 33/91 and 42/97) provided at the material time: “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 be guaranteed equal protection of rights in any proceedings before a court and before any State or local authority and bearer of public authority which determines his or her rights, duties or legal interests.” “Everyone shall have the right to have his or her rights, duties and any charges brought against him or her determined without undue delay by an independent and impartial tribunal established by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may try such an individual.” “The right to private property and inheritance shall be guaranteed.” 12. The following section of the Constitutional Act implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia of 25 June 1991 (Ustavni zakon za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije, Official Gazette of the Republic of Slovenia, Nos. 1/91 and 42/97) is relevant to the present case: “Until the relevant legislation of the Republic of Slovenia is enacted, the federal legislation in force in the Republic of Slovenia at the time of entry into force of this law shall be applied as legislation of the Republic of Slovenia unless it is contrary to the legal order of the Republic of Slovenia, and except as otherwise provided by this law. ...” 13. This Act served as a legal basis for the incorporation, with the necessary amendments, of legislation previously enacted under the SFRY into the legal order of the independent Republic of Slovenia, for example the 1978 Obligations Act (see below). 14. The original text of the 1978 Obligations Act (Zakon o obligacijskih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia, Nos. 29/78, 38/85) provided in section 401 that default interest ceased to accrue once the amount of overdue interest reached the value of the principal debt (prohibition ultra alterum tantum). In 1989 this section was abrogated (Official Gazette of the Socialist Federal Republic of Yugoslavia No. 57/89). 15. Further relevant provisions of the Act as amended read as follows: “An obligation arising from a tort shall be deemed to be payable at the moment when the damage occurs.” “... (2) Compensation for damage shall be determined according to the prices applicable at the time of the delivery of the court judgment, unless otherwise provided by law. ...” “(1) In respect of physical pain or mental anguish suffered on account of reduced (2) When considering a claim for non-pecuniary damage and determining the compensation to be awarded, the court shall consider the value of the damaged personal property and the purpose of such compensation, and shall also ensure that it does not serve interests which would be inappropriate to its nature and social significance.” “(1) A debtor who fails to perform a pecuniary obligation shall owe, in addition to the principal, default interest at a rate prescribed by federal law. (2)...” “(1) A debtor shall be in default of his pecuniary obligation if he fails to perform it within the period stipulated for its performance. (2) If no period is stipulated for performance, the debtor shall be in default where the creditor, by means of an oral or written reminder or by instituting judicial proceedings intended to secure the fulfilment of the obligation, requests the debtor to perform his obligation.” “If the object of an obligation is a sum of money, the debtor shall owe the sum of money specified at the time the obligation was entered into, unless otherwise provided by law.” 16. The Code of Obligations (Obligacijski zakonik, Official Gazette of the Republic of Slovenia, No. 83/2001) reintroduced in section 376 a provision to the effect that default interest ceased to accrue once the amount of overdue interest reached the value of the principal (prohibition ultra alterum tantum, see paragraph 14 above). It also repealed former section 277 and provided instead in section 378 that default interest was to be regulated as follows: “If a debtor is in default as regards the performance of a pecuniary obligation, he shall owe default interest in addition to the principal. The rate of default interest shall be 8% per annum, unless a special law provides otherwise.” 17. In its transitional and final provisions the new Code stated that the provisions were not to apply to obligations that arose prior to its entry into force. It also provided that the special law referred to in section 378(2) was the Statutory Default and Basic Interest Rate Act (see below). 18. Other provisions of the new Code of Obligations relevant to the present case follow the wording of the former Obligations Act. 19. The Default Interest Rate Act (Zakon o obrestni meri zamudnih obresti, Official Gazette of the Republic of Slovenia, Nos. 14/92 and 13/93) prescribed the interest rate as the retail price growth rate in the preceding month, recalculated on an annual level, and increased by a 30% real annual default interest rate. In the subsequent year the real annual default interest rate was reduced to 25%. The default interest was composed of the real index and the retail price index (adjustment index), the latter having the function of increasing the amount of the principal according to the monetary depreciation in the country. Default interest thus had a function of preserving the real value of a pecuniary obligation and hence ensuring that the purchasing power of the claim remained unchanged. 20. The Statutory Default and Basic Interest Rate Act (Zakon o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri, Official Gazette of the Republic of Slovenia, No. 45/95) determined the statutory default interest rate as being equal to the basic interest rate increased by 1.8 times the general discount rate of the Bank of Slovenia (section 2), the basic interest rate being the annual interest rate for domestic-currency pecuniary obligations ensuring the preservation of their real value (adjustment) (section 3). Default interest thus formally assumed three distinctive functions: a function of adjustment of pecuniary obligations in accordance with inflation in the country, a function of payment for the use of another person’s capital, and a punitive function for a debtor in default as regards the performance of his obligation. 21. The Amendments and Supplements to the Statutory Default and Basic Interest Rate Act (Zakon o spremembah in dopolnitvah zakona o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri, Official Gazette of the Republic of Slovenia, No. 109/2001) determined the statutory default interest rate as the basic interest rate increased by 13.5 percentage points (section 2), the basic interest rate being the annual interest rate for domestic-currency pecuniary obligations ensuring the preservation of their real value (adjustment) (section 3). 22. The Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette of the Republic of Slovenia, No. 26/99) provided in section 2 that in civil proceedings, the court should decide only within the boundaries of the claims filed (ne eat iudex ultra et extra petita partium). A case in which the court nevertheless decided extra petitum and made an award that was higher than or did not correspond to what was claimed would, pursuant to sections 350, 375 and 381, amount to a major violation of procedural law and constitute a ground for a higher-instance court to quash the judgment in question. 23. On 29 May 1987 the SFRY Federal Court, the Supreme Courts of the Republics and Regions of the SFRY and the Federal Military Court, sitting in Bugojno (present-day Bosnia and Herzegovina), adopted a new interpretation of the provisions of the 1978 Obligations Act, which dealt with default interest on compensation for non-pecuniary damage, by issuing the following opinion: “Default interest on a pecuniary claim for non-pecuniary damage shall be payable with effect from the date of delivery of the first-instance court judgment in which the compensation was determined. When determining the amount of just pecuniary compensation, the court shall also take into account the period from the date of the occurrence of the damage until the date of the judgment, if this is justified by the time that has elapsed since the damage occurred or by ” 24. With the incorporation of the 1978 Obligations Act, enacted under the former SFRY, into the legal system of the newly established Republic of Slovenia, the Supreme Court of the Republic of Slovenia also adopted the interpretation of the relevant provisions of that Act as developed by the former SFRY Federal Court, the Supreme Courts of the Republics and Regions of the SFRY and the Federal Military Court (see paragraph 23 above). 25. The Supreme Court observed that, under the legislation in force since 1978, default interest also included interest for adjustment of a pecuniary obligation in accordance with the level of inflation. On certain occasions in the past, the default interest for pecuniary obligations therefore amounted to over 1000% of the main claim. However, in the case of claims for compensation for non-pecuniary damage, the preservation of the real value of a debt was ensured by determining its amount only on the date of delivery of the first-instance court judgment. By that date, a claim in respect of a non-pecuniary obligation therefore remained unaffected by inflation. Thus, if default interest was awarded with effect from the date on which non-pecuniary damage had occurred, this would result in a double adjustment of the compensation claim from that date until the delivery of the judgment: once by determining its amount only on the day of delivery of the judgment, and then also with the award of default interest from the day the damage occurred. In the Supreme Court’s view, this was unacceptable. 26. Furthermore, the Supreme Court consistently held that a higher amount of compensation was not to be awarded solely on the basis of the fact that the case had been decided after a longer period of time. Thus, a claimant could only claim a higher amount of compensation under that head if the length of the court proceedings was excessive, for example on account of delays caused by one of the parties to the proceedings or perhaps even abuses of his or her procedural rights (see, for example, the reasoning of the Supreme Court in II Ips 221/2001, II Ips 282/2000, II Ips 351/2003 and II Ips 664/2003). 27. Finally, the Supreme Court emphasised on several occasions that despite the fact that in recent years inflation had no longer been so high and default interest had therefore no longer included such a high adjustment index, the jurisprudence could not be changed in an isolated case where a claimant had sought default interest from the day he had sustained the damage. Such a change in jurisprudence could only be carried out in a general manner, so that it took effect with respect to a non-identifiable circle of claimants and for all claimants at the same time (see in particular II Ips 351/2003). 28. After the new Code of Obligations had been enacted in 2001, replacing the 1978 Obligations Act, the Supreme Court adopted a new legal opinion on 26 June 2002 concerning the issue of default interest, which read: “(1) From the date on which the Code of Obligations came into force (1 January 2002), the victim is entitled to default interest on a pecuniary claim for non-pecuniary damage (sections 179 to 183 of the Code of Obligations and sections 200 to 203 of the former Obligations Act), unless the default occurred at a later stage (section 299 of the Code of Obligations and section 324 of the former Obligations Act), after the entry into force of the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act, as a result of which default interest is awarded: – until the date of delivery of the first-instance court judgment at the prescribed interest rate, reduced by the basic interest rate (currently 13.5%); – from the date of the first-instance court judgment onwards at the prescribed default-interest rate (section 2 of the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act ). ... (3) Payments of compensation are subject to adjustment at the basic interest rate (section 3 of the Statutory Default and Basic Interest Rate Act) or at the rate agreed between the parties (section 372 of the Code of Obligations).” 29. In its reasoning on its newly adopted legal opinion, the Supreme Court observed, inter alia, that the economic situation in the country had stabilised, and the new legislation, namely the new Code of Obligations and the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act, now distinguished between default interest and the interest intended for adjustment of a pecuniary obligation. In the Supreme Court’s view, these developments allowed a change in the jurisprudence concerning the awards of default interest in the case of claims for non-pecuniary damage. Thus, default interest may now be payable with effect from the date on which the damage occurred, regardless of whether it was of a pecuniary or a non-pecuniary nature. 30. The above-mentioned Supreme Court’s jurisprudence was upheld also by the Constitutional Court (see, for example, the decision of the Constitutional Court in the present case, para. 9 above). Therefore, the following provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču, Official Gazette of the Republic of Slovenia, Nos. 15/94, 51/07 and 64/07) concerning legal effects of the Constitutional Court’s decisions are of particular relevance in the present case: (1.)... (2.)... (3.) “The decisions of the Constitutional Court are binding.”
| 0
|
train
|
001-23139
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,003
|
WARDLE v. THE UNITED KINGDOM
| 2
|
Inadmissible
|
Georg Ress;Mark Villiger;Nicolas Bratza
|
The applicant, Mr Michael John Wardle, is a national of the United Kingdom, who was born in 1975. He is currently in prison in HMP, Wormwood Scrubs. He is represented before the Court by Ms Anne Glen, a solicitor practising in Leeds, and by Messrs Alistar McDonald Q.C. and Nicholas Johnson B.L., both barristers practising in Leeds. The facts of the case, as submitted by the applicant, may be summarised as follows. On 20 July 1998 an elderly man collapsed and died during a violent burglary in his home. On 17 August 1998 the applicant was arrested on suspicion of murder. He was questioned 11 times over 5 days and 11 video recordings were made of those interviews. The applicant was then released. Some time later the police conducted extensive covert surveillance operations during the course of which the applicant was heard to make incriminating remarks. The pathologist’s report of 27 October 1998 recorded that the victim had been suffering from a long term hypertensive heart disease and that a combination of his minor injuries and the fear engendered by the burglary caused his death. On 5 January 1999 the applicant was re-arrested and on 7 January 1999 he was charged with murder. He was interviewed 11 times over three days (along with a co-accused) during which videos from the covert surveillance were shown to him (image only). The applicant’s legal representative indicated during those interviews that the images on the videos were poor. Videos were also taken of those interviews. The applicant appeared before the Magistrates’ Court on 8 January 1999 for the first time when he was remanded in custody on the murder charge, the statutory custody time-limit of 70 days to expire on 19 March 1999 according to section 22(1)(b)(I) of the Prosecution of Offences Act 1985 (“the 1985 Act”) and Regulation 4(4)(b) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (“the 1987 Regulations”). The 19 March 1999 was, subject to an extension of that time-limit or the granting of a new time-limit, therefore the date foreseen for the applicant’s committal on a charge of murder. As later established before the Crown Court, on 8 January 1999, 78 of the witness statements had already been prepared by the police (out of the total 120 statements eventually obtained). By letter dated 14 January 1999 the applicant’s representatives requested the prosecution to make full disclosure. The response, dated 26 January 1999, indicated that the police had been asked to supply the relevant extracts from the video surveillance, which constituted “key” prosecution evidence in the case against the applicant. On 24 February 1999 the defence again requested the prosecution’s disclosure. On 26 February 1999 the police submitted its file of the evidence to the prosecution. On 1 March 1999 the prosecution requested further statements to be taken by the police. In the meantime, the pathologist had been asked to comment specifically on the association between the burglary incident and the victim’s death. On 4 March 1999 the pathologist produced a report leading to the same conclusions as the report of October 1998, albeit expressed more succinctly. On 5 March 1999 the prosecution also received the requested statements from the police. Between 9 and 11 March 1999 the prosecution served its full file on the defence which included three four-hour videos of the covert surveillance, 22 interview tapes (together with transcripts of those videos) and 66 witness statements and 1600 pages of documents including police interviews. The prosecution confirmed that they were ready for committal of the applicant on a charge of manslaughter, although it reserved its position on the initial charge of murder pending perusal of any evidence received post-committal. The prosecution indicated what parts of the videos and material were relevant for its case. The applicant’s representative immediately reserved the first date available in the video room in the applicant’s prison (18 March 1999) to view the videos with him. On viewing the videos on that date his representative noted that further copies of the videos would have to be obtained as the images were unclear and the audio was substandard. On 18 March 1999 the defence indicated that it was not ready for a committal hearing as it had insufficient time to fully consider the evidence served. On 19 March 1999 the applicant appeared before the Magistrates’ Court. The prosecution offered no evidence on the murder charge and formally preferred a new manslaughter charge indicating that it was ready to commit the applicant for trial on the latter charge. The Magistrates’ Court extended the original custody time-limit (finding that the prosecution had acted with due expedition), accorded a further custody time-limit in light of the new charge and adjourned committal proceedings on the manslaughter charge for three weeks to allow the defence to consider the prosecution evidence. On 22 March 1999 the Crown Court considered and decided the applicant’s appeal from the Magistrates’ Court. In the first place, the County Court found that the preferring of the new charge did indeed give rise to a new custody time-limit: “... the question is whether any new or amended charge is in substance a different offence, and there is no doubt that manslaughter is a different offence . . . carrying a different mens rea, and . . . significantly different consequences might flow in terms of length of sentence . . . it must follow that the time limit runs de novo from the preferment of the new offence of manslaughter.” The Crown Court also rejected the applicant’s submission that the prosecution had demonstrated mala fides, which the applicant considered was demonstrated by the similar conclusions in the pathologist’s reports of October 1998 and March 1999 and by the prosecution’s reservation of the possibility of re-entering the murder charge depending on evidence later emerging. It found that the prosecution had not sought to manipulate the custody time-limit by the addition or substitution of a manslaughter charge. Secondly, it went on to consider the extension of the original custody time-limit, a relevant matter as any refusal of the extension would allow a bail application to be made. The prosecution argued that, although it had a good number of prosecution statements by 8 January 1999, it had considered it preferable to serve the entire prosecution file in March 1999 rather than do so piecemeal between January and March 1999. It considered the case was of some complexity and that there were ongoing enquiries concerning the nature of the charge (murder or manslaughter) to be retained against the applicant. It was of the view that the defence had sufficient time between 11 March and 19 March 1999 to review the documents to be ready for the committal hearing on 19 March 1999. The defence accepted that it was a complex matter, but submitted that the prosecution should have served the substantial material in their possession much earlier and that it had insufficient time to consider all the material and to take instructions prior to the committal hearing, not to mention the fact that the videos eventually served were of unacceptable quality. The Crown Court judge found that the original time-limit should not have been extended since he had “no hesitation in finding” that the prosecution had not acted with “due expedition”. He found that the prosecution, having been put on notice in early January 1999 that the videos were of poor quality, took until 9 March 1999 to produce further poor quality videos which could not be viewed by the prisoner until 18 March 1999, the day before the hearing before the Magistrates’ Court. He concluded: “I could go into more detail than that, but I do not think I need to for this purpose. So I find, as I say, that the Prosecution have not acted with all due expedition, and of course one bears in mind that they had many, many of the witness statements in their possession before 8 January [1999], the date of [the applicant’s] first appearance [before the Magistrates’ Court], and they decided to hold on to them until eight days before the expiry of the time-limit. It just will not do.” The applicant was therefore entitled to apply for bail on the basis that the finding of insufficient expedition by the prosecution constituted “changed circumstances” within the meaning of the Bail Act 1976 (as amended – “the 1976 Act”). During the bail application, the applicant’s counsel clarified that a bail application had not been previously made on the applicant’s behalf. However, since the applicant had previously committed a number of offences on bail and had failed to surrender to bail on at least two occasions, the Crown Court refused bail on the basis that it was believed the applicant would fail to surrender and would commit an offence on bail. On 20 April 1999 the applicant applied to the High Court for leave to challenge by judicial review the Crown Court’s ruling that a further custody time-limit had been created by the new manslaughter charge. On 23 April 1999 the applicant was committed to the Crown Court for trial by the Magistrates’ Court. On 26 April 1999 the High Court rejected the applicant’s leave application, Mr Justice Mitchell delivering the judgment of the court. He noted that, while the Prosecution had acted with commendable speed having received the papers from the police in February 1999, the period of time that had elapsed since the burglary in question was prima facie evidence that the police had not acted with “all due expedition”. He also noted that the substitution of the charge of manslaughter for murder was unnecessary as the Magistrates’ Court could have been invited to commit the applicant on the manslaughter charge but that its substitution led to a new custody time-limit being created. Noting that there was no submission that the prosecution had acted in bad faith, Mr Justice Mitchell found that the substitution of the manslaughter charge, although unnecessary, was: “a thoroughly desirable course to take, because accused persons should only be charged, committed and tried for offences which are reflected in the available evidence. That thoroughly desirable course, however, at the same time may provide a passport for avoiding the statutory consequence of thoroughly dilatory preparation.” Mr Justice Mitchell did add that he considered the law to be somewhat unsatisfactory: “The purpose of the [1987] Regulations has been stated and emphasised time and again. Once the custody time limit of 70 days has expired, the onus is fairly and squarely on the prosecution to seek and to justify, in accordance with section 22(3)(b) of the 1985 Act the granting of an extension. No question of the prosecution having to make out a case for an extension arises however if another offence is charged. Providing that offence is supported by evidence, the prosecutor’s position, subject to the abuse point (which I will refer to in a moment), appears to be unassailable. If a charge is withdrawn and another one substituted or a further offence is charged (as an alternative) a new custody time limit is still created. This, quite legitimately, can happen more than once. New custody time limits could follow, one after the another, without there having been the slightest variation in size or content of the evidential canvas, but simply as a consequence of the prosecutor’s decision to found a charge or a different charge or an alternative charge on a particular area of the evidential material. However dilatory the preparation, however late in the day the late charge is preferred, the prosecution’s position may thereby be protected. For the claim “abuse of process” to succeed, bad faith must be established. That is a heavy burden to discharge. It is not altogether clear on the authorities whether the charging of an offence justified on the evidence, but solely for the purpose of creating a new custody time limit, itself amounts without more to bad faith. If it does not, then it is difficult to see how there could be any effective challenge to these practices. This considerable measure of latitude which has been extended to prosecutors seems to me to be wholly inconsistent with the purpose of Regulation 4, because, in effect, it enables the prosecution to bypass the requirement in section 22(3)(b) [of the 1985 Act] that any extension of the time limit has to be justified by showing, under the amendment to section 22(3)(b) introduced by paragraph 43 of the Crime and Disorder Act 1998 (which appears not yet to be in force), not only all due expedition but also due diligence.” Mr Justice Mitchell certified a point of law of public importance for the House of Lords to consider, namely: “When in a magistrates’ court does the charging of an offence cause a fresh custody time limit to run.” On 18 May 1999 the Crown Court considered a new indictment including charges of manslaughter, wounding with intent and aggravated burglary. The applicant pleaded not guilty. However, at his trial on 22 September 1999 he pleaded guilty to manslaughter, the other charges remaining on the file. On 24 September he was sentenced to 10 years’ imprisonment. His pre-trial custody was deducted from his sentence (Section 9(3) of the Crime (Sentences) Act 1997). On 8 March 2001 the House of Lords rejected the applicant’s submissions as to the meaning and application of the 1987 Regulations. Lord Slynn of Hadley noted that a mere change of the details of a charge does not mean that the time-limit begins again since the offence remains the same. Equally, where the initial and second offences are plainly distinct (for example, burglary and rape), the second charge attracts its own time-limit. While the present case fell somewhere between those two situations, it was not possible to interpret the legislation so as to exclude a further time-limit where the initial charge “necessarily includes or amounts to, whether expressly or impliedly, the new offence charged” as suggested by the applicant. A further time-limit would only be excluded where the constituent elements of the new offence were “in substance the same as those of the original offence”, which was not the case of the murder and manslaughter charges. It was accepted that a new time-limit would not, however, begin if the preferring of a further charge amounted to an abuse of process: “It has been said that where the new charge is brought in bad faith or dishonestly, that would amount to an abuse of process. In my view the ambit of ‘abuse of process’ is not so limited. If a new charge is brought simply to keep the accused in custody for a longer period, that is clearly contrary to the intention of the legislation and constitutes an abuse of process. As Professor Smith said in his commentary to R v. Great Yarmouth Magistrates, Ex p Thomas, Davis and Darlington ([1992] Crim. LR 116, at p. 117): ‘Perhaps the more specific question to be asked is whether the charges of possession with intent were brought solely for the purpose of retaining the applicants in custody.’ Equally if the court is satisfied that the way in which and the time at which the new charge is added or substituted, indicates that it is not done for the genuine purpose of introducing a new charge on a revised assessment of the case, but is done primarily to keep the accused in custody on the initial charge, then this will constitute an abuse of process. Of course on the other hand if the purpose is genuinely to introduce a new charge on such a revised assessment the fact that the accused begins a new custody period does not in itself constitute an abuse of process. It was not contended [in the High Court] that there was an abuse of process here and on my view of the construction of the section and the Regulation such a matter does not fall for consideration on the present appeal.” As to the applicant’s complaint that this manner of proceeding was arbitrary and in violation of Article 5 of the Convention: “In my view, however, it has not been shown that his detention was arbitrary. No complaint can be made for the first 70 day period: the second is justified because a new charge is brought on the basis of a very substantial body of evidence delivered to the defence shortly before the second charge was laid. It was right to change the charge to the lesser offence of manslaughter in the light of the reconsideration of the case. For the serious offences involved here, I do not consider that the periods prescribed in the Regulations can be said to be unreasonable. Moreover there was an opportunity to challenge the laying of the second charge and the second detention period as an abuse of the process of the court. That was not done, understandably. There existed a procedure by which the decision of the Magistrate could be challenged by way of judicial review. That was done in this case. During the period when the appellant was in the custody of the magistrates’ court, the provision of section 128(6) of the Magistrates’ Court Act 1980 requires that a [Magistrates’] “court may not remand a person for a period exceeding 8 clear days” [subject to certain exceptions].” Lord Hope of Craighead also found that the ordinary canons of construction implied that each offence laid before the Magistrates’ Court attracted its own custody time-limit. In his reasoning he described the inquiry of the Magistrates’ Court under sections 4 and 6 of the Magistrates’ Courts Act 1980 (“the 1980 Act”) as follows: “The function of the magistrates’ court, as described in sections 4 to 6 of [the 1980] Act, is to inquire into ‘an offence as examining justices’: see section 5(1) and section 6(1) and (2) [of the 1980 Act]. If a magistrates’ court is satisfied that there is sufficient evidence to put the accused on trial by jury ‘for any indictable offence’, the court must commit him for trial: section 6(1) [of the 1980 Act]. The implication is that it will take that step with regard to ‘the offence under inquiry’: see the concluding words of the subsection. Alternatively the court may commit him for trial ‘for the offence’ if it is satisfied that all the evidence before the court consists of written statements tendered under the 1980 Act without consideration of their contents. ... Thus the scope of the inquiry is determined by the information which has been laid before the magistrates’ court. The guiding principle is that the offence should be described in the information clearly and definitely, without duplicity or uncertainty ... The court’s function is to inquire into the offence charged in the information as examining justices. I do not think that there is any ambiguity about what is meant in regulation 4(4) [of the 1987 Regulations] by the word ‘offence’ in these circumstances. It means the offence with which the person is charged in the information which has been laid against him in that court. It is normal and proper practice for the prosecution to review the charge or charges in the information which was initially laid before the court as further inquiries are conducted into the state of the evidence. This may lead to the bringing against the accused of what are undoubtedly fresh charges, with the consequence that these new charges will attract their own custody time limit.” As to the compatibility of that interpretation of Regulation 4(4) of the 1987 Regulations with Article 5 of the Convention, he noted that the primary means for controlling the detention of a person while in the custody of the Magistrates’ Court are found in the provisions of the 1976 Act. The function of the 1987 Regulations was to set maximum custody time limits. If a custody time limit expired before the completion of the stage of the proceedings in question, “the accused had to be granted bail”. It was also open to the justices to grant bail at any time before the expiry of the time limit, bearing in mind that section 4(1) of the 1976 Act gave a general right to bail except in certain specified circumstances (Schedule 1 to that Act). Furthermore the accused, if remanded in custody, had to be brought again before the Magistrates’ Court to enable his case to be reviewed at regular intervals, as the general rule is that a Magistrates’ Court may not remand a person for a period exceeding 8 clear days (section 128(6) of the Magistrates’ Courts Act 1980). His detention was thus subject to judicial control in the Magistrates’ Court throughout the period while he is in the custody of that court. Decisions of the Magistrates’ Courts were amenable to judicial review and if that court decided to extend a custody time limit the accused could appeal against that decision to the Crown Court (section 22(7) of the 1985 Act). He continued: “The effect of these provisions can, I think, be summarised in this way. A person can only be detained in the custody of a Magistrates’ Court while awaiting the completion of a preliminary stage of the proceedings under a procedure which has been laid down by statute, and the effect of Regulation 4 of the 1987 Regulations is that any such detention is subject to strictly defined custody time limits. As to the complaint that this procedure is not precise or accessible because of the possibility of the substitution of fresh custody time limits, I would reject it. The provisions of the Bail Act 1976 and of the Magistrates’ Courts Act 1980, as amended, deal with the procedure for remands in custody in considerable detail with a view to ensuring that every situation is provided for. It is a procedure which is prescribed by law. Detention under this procedure is lawful under domestic law, and it complies with the general requirements of the Convention. If a fresh custody time limit is to be substituted, the procedure under which this is to be done is laid down by statute and the regulation defines the length of the substituted time limit.” However, he found more substantial the applicant’s complaint that the procedure was open to abuse as a result of arbitrary decisions of the prosecution: Regulation 4(4) of the 1987 Regulation was vulnerable to abuse if it was used for improper purposes. But this, Lord Hope of Craighead considered, was a matter which was subject to judicial control by the justices or the stipendiary magistrates who could find that the new charge was simply a reproduction of the old charge with amendments which were minor or unimportant (and, on this ground, refuse to accept that the new charge gave rise to a fresh custody time-limit) or who could refuse to inquire into the information relating to the new charge on the basis that to do so would be an abuse of the process of the court. As to what constituted an abuse of process in this context he considered that the essence of abuse of process in criminal proceedings was that the prosecution had “sought to take advantage of a procedural rule for a purpose which can be described as improper or as arbitrary”. Difficulty had arisen because of the suggestion in previous case-law that a complaint of abuse of process had to contain an allegation of bad faith. Having reviewed the relevant authorities, he found that: “I do not think that it can be doubted that, where dishonesty or mala fides can be established, that will be sufficient to show that there has been an abuse of process. But the concept of abuse of process is not to be confined to cases where there is proof of conscious dishonesty or of an improper motive of that kind. To the extent that the authorities to which I have referred may be taken as indicating the contrary, I would be inclined not to follow them. It seems to me that a broader and simpler test is, in this context, more appropriate. That would be more in keeping with the purpose of Article 5(1) of the Convention, which is to protect the individual from arbitrariness when he is deprived of his liberty. The true question, as Buxton J indicated in R v. Wolverhampton Justices and Stafford Crown Court, Ex p Uppal (1994) 159 JP 86, is whether the new charge has been brought solely for the purpose of avoiding a custody time limit. The issue can best be tested by requiring the prosecutor to demonstrate why, on the facts of the case, the bringing of the new charge is necessary. If the necessity of bringing the new charge can be demonstrated, the substitution of a new custody time limit will follow according to the rules which regulation 4(4) has laid down. But if the prosecutor is unable to satisfy this test, it will be open to the court to infer that there is an abuse of process because the charge has been brought solely for the arbitrary and improper purpose of substituting a new custody time limit.” Lord Clyde also found that the 1987 Regulations allowed the substitution of a new time-limit and, further, that that was not incompatible with Article 5 of the Convention: “The regulation is clear, precise and accessible. There are safeguards for the accused in the recognition by both parties that the court can intervene in the event of the prosecution acting in a way which would constitute an abuse of process. The regulation prescribes relatively short periods for the completion of the relevant stage of the proceedings and the court has a discretion whether or not an extension to the period is or is not to be allowed. Moreover the accused has remedies in law, including that of judicial review. Finally the whole scheme of the regulation has to be seen in the context of the Bail Act 1976 which gives, subject to certain exceptions, a general right to bail.” Lord Nicholls of Birkenhead dissented. He considered that the substitution of a manslaughter charge, already implicit in the murder charge, allowing the extension of the time-limit was an absurd result which could not have been intended by parliament. The power to grant bail did not address this absurdity since the individual had lost the benefit entirely of fixed time-limits extendable in limited circumstances for which parliament had provided by way of the 1985 Act. The Court’s ability to prevent an abuse of process did not provide an answer since the prosecution had nonetheless exercised its powers and discharged its responsibilities “properly and conscientiously”. Lord Scott of Foscote also dissented finding that, where the new charge was based on the facts on which the original charge was based and was simply a lesser charge than that originally preferred, the proposition that the preferment of the new charge attracts a new custody time-limit defeated legislative intention. “In the present case the prosecution did not act with all due diligence and expedition. [The Crown Court] so found and refused the application for an extension. It has not been suggested that [it] was in error. And yet, by introducing the manslaughter charge on the day of expiry of the original custody time limit, the prosecution procured a further 70 days during which the appellant could be kept in custody. It is, of course, true that it was open to the appellant on 19 March to make an application for bail, and indeed he did so. But the new custody time limit defeated his absolute right to the grant of bail under section 4(8A) of the Bail Act 1976 and his bail application was, in the event, refused. If the committal hearing had taken place on 19 March, as it would have done if the prosecution had not failed to act with all due diligence and expedition, the prosecution could at the same time have substituted the manslaughter charge for the murder charge and the appellant would have been committed to the Crown Court for trial on the manslaughter charge. If the proceedings had taken that course, the period during which he would have been in custody before the committal would not have exceeded the original 70 days. On this appeal, the critical question for your Lordships, in my opinion, is whether there is a permissible application of section 22 and regulation 4 of the 1987 Regulations that would prevent, in a case such as this, the substituted charge from attracting a fresh 70 day custody time limit. There is no doubt, I believe, that if that result can be reached it ought to be reached.” His conclusion was fortified by the impact of the requirement to interpret the applicable law compatibly with Article 5 of the Convention. A construction and application of section 22(1) of the 1985 Act and Regulation 4(4) of the 1987 Regulations that enabled the prosecution, by preferring a new charge, to withhold from the accused the release from custody to which he would otherwise have been entitled, in a case where there were no new facts and the new charge was and always had been comprehended within the original charge, would subject the accused to arbitrariness: “In my opinion, it is open to your Lordships to rule that if an accused, having appeared or been brought before a magistrates’ court on an information charging him with an offence, is then charged with a new offence of which he might, if tried on the original offence, have been convicted (see section 6 (2), (3) and (4), Criminal Law Act 1967), a new custody time limit will not be attracted by the new offence and the accused’s ‘first appearance’ in relation to the new offence will be the date on which he first appeared or was brought before the magistrates’ court on the information or charge relating to the original offence. If the addition, or substitution, of the new offence has the consequence that the prosecution is not ready to proceed with the committal hearing within the original 70 day custody time limit, it is always open to the prosecution to apply for an extension. Whether the prosecution would obtain an extension would depend on their showing they had acted “with all due diligence and expedition”. The end result would thus be in accordance with the legislative intention.” Having so concluded, Lord Scott of Foscote provided his view on the meaning of “abuse of process”: “In my opinion, the requirement of dishonesty or mala fides distracts attention from the true requirements if an allegation of abuse of process is to be made out. The concept of abuse of process is no different in criminal cases from the like concept in civil cases. It involves a use of court process for a purpose other than that for which the purpose in question was intended. It is in that sense that one may speak of some procedural step being taken for an improper purpose and, therefore, constituting an abuse of process. The procedural step will often be accompanied by bad faith or dishonesty — in that a legitimate purpose, not being the true purpose, may be put forward as the true purpose. But bad faith or dishonesty are not essential. What is essential is that court process has been used for some ulterior purpose. There will be difficulty where the purpose is mixed. The present case may well be an example. There was every reason, it being clear that the known facts did not support a murder charge but only manslaughter, for the withdrawal of the former and the substitution of the latter as soon as practicable. But the timing of the substitution suggests very strongly, to my mind, that it was done in order to forestall the automatic release of the appellant from custody. There was no evidence at all from the prosecution as to its reasons for formally substituting manslaughter for murder on 19 March. The prosecution could simply have informed the defence that the murder charge would not be proceeded with and that they would be seeking a committal on manslaughter. In my opinion, however, if a step in litigation is taken for a legitimate reason, whether or not it is also taken for an illegitimate one, the step cannot be categorised as an abuse of process. The legitimate reason must, of course, be more than merely makeweight or trivial. If abuse of process can be shown, the procedural step taken should, strictly, be regarded as a nullity. ... It is, in my respectful opinion, unanswerable and obviously right. If a new charge is preferred, not with any genuine intention that the accused should be tried on that charge, but simply in order to attract a new custody time limit, the preferring of the new charge is an abuse of process and the new charge should be struck out as soon as that has become apparent. If there is a genuine intention that the new charge should be proceeded with to trial and it is simply the timing of the new charge that appears to be motivated by an intention to avoid the consequences of the expiry of the original custody time limit, the court cannot, in my opinion, strike out the new charge as an abuse of process. But the circumstances in which the substitution of the new charge took place can, and should, in my opinion, be taken into account in considering whether the accused should be released on bail. ... If I am right in the present case that the substituted charge of manslaughter should not have been treated as giving rise to a fresh custody time limit, the abuse of process point does not arise. If I am wrong, however, and I understand a majority of your Lordships to take a different view on that point, this was not a case in which the manslaughter charge could have been set aside on abuse of process grounds. However, it was a case in which, on the bail application made to [the Crown Court], the circumstances in which the substituted charge was preferred should have been taken into account. The fact that the prosecution had failed to act with all due diligence and expedition was relevant. So was the fact that there was nothing new which explained why the substitution was being made when it was made. The judge should, in my view, have inferred that a substantial reason for the change was that the prosecution wanted to avoid the custody time limit consequences of their own dilatoriness. A decision to award bail in those circumstances would have reflected Parliament’s intention in introducing the custody time limit statutory provisions.” Section 4 of the 1976 Act as amended provided, in so far as relevant, as follows: “(1) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act. ... (8) This section is subject to section 25 of the Criminal Justice and Public Order Act 1994 (exclusion of bail in cases of homicide and rape); (8A) Where a custody time-limit has expired this section shall have effect as if, in subsection (1), the words “except as provided in Schedule 1 to this Act” were omitted.” Paragraph 2 of Schedule 1 provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person. Under paragraph 9 of Schedule 1 to the 1976 Act, in taking the above decision, the court was to have regard to such of the following considerations, as well as to any other considerations, as appeared to that court to be relevant: – the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it); – the character, antecedents, associations and community ties of the defendant; – the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and – except in the case of a defendant whose case was adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted. According to paragraph 9A of Schedule 1 to the 1976 Act, if a defendant (who had been charged with murder, manslaughter, rape, attempted murder or attempted rape) was granted bail and representations had been made as regards the matters mentioned in paragraph 2 of Schedule 1, the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings. The Criminal Justice Act 1988 made certain additions to Schedule 1 to the 1976 Act for the purpose of ensuring that accused persons would have two bail applications as of right, the second application being a de novo consideration of bail. Subsequently, an accused can make a further bail request if there had been a “change in circumstances”. Section 22 of the 1985 Act gave the Secretary of State power to set time limits with respect to the preliminary stages of proceedings for an offence. Subsection (1) of that section provides: “The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period - (a) to be allowed to the prosecution to complete that stage; (b) during which the accused may, while awaiting completion of that stage, be - (i) in the custody of a magistrates’ court; or (ii) in the custody of the Crown Court.” Custody time-limits in the Magistrates’ Court are governed by Regulation 4 which, in so far as relevant, provides: “(1) ...the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a magistrates’ court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions. (2) Except as provided in paragraph (3) below, in the case of an offence triable either way the maximum period of custody between the accused’s first appearance and the start of summary trial or, as the case may be, the time when the court decides whether or not to commit the accused to the Crown Court for trial shall be 70 days... (3) In the case of an offence triable either way if, before the expiry of 56 days following the day of the accused’s first appearance, the court decides to proceed to summary trial in pursuance of sections 19 to 24 of the [Magistrates’ Courts Act 1980] the maximum period of custody between the accused’s first appearance and the start of the summary trial shall be 56 days. (4) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused’s first appearance and the time when the court decides whether or not to commit the accused to the Crown Court for trial, shall be 70 days... (5) The foregoing provisions of this regulation shall have effect as if any reference therein to the time when the court decides whether or not to commit the accused to the Crown Court for trial were a reference - (a) where a court proceeds to inquire into an information as examining justices in pursuance of section 6(1) of the 1980 Act, to the time when it begins to hear evidence for the prosecution at the inquiry...” Custody time-limits in the Crown Court are governed by Regulation 5 which, in so far as relevant, provides: “(2) Where - (a) a person accused of an indictable offence other than treason is committed to the Crown Court for trial; or (b) a bill of indictment is preferred against a person under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in these provisions. (3) The maximum period of custody - (a) between the time when the accused is committed for trial and the start of the trial; or (b) where a bill of indictment is preferred against him under the said section 2(2)(b), between the preferment of the bill and the start of the trial, shall, subject to the following provisions of this Regulation, be 112 days. (4) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was committed for trial at that committal together with a count charging an offence for which he was committed for trial on a different occasion, paragraph (3) above applies in relation to each offence separately. ... (6) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was not committed for trial, the maximum period of custody - (a) between the preferment of the bill and the start of the trial, or (b) if the count was added to the bill after its preferment, between that addition and the start of the trial, shall be 112 days less any period, or the aggregate of any periods, during which he has, since the committal been in the custody of the Crown Court in relation to an offence for which he was committed for trial.” In the case of R v. Manchester Crown Court, Ex parte McDonald ([1999] 1 W.L.R. 841) Lord Chief Justice Bingham outlined the three objectives of the 1985 Act and the 1987 Regulations: to ensure that the period for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible; to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial.
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ADMISSIBILITY
| 2,001
|
BRUNO v. SWEDEN
| 4
|
Inadmissible
|
Gaukur Jörundsson;Wilhelmina Thomassen
|
The applicant is a Swedish national, born in 1946 and living in Vällingby. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In December 1994 the tax authorities levied municipal and State tax on the applicant for the income year 1993 including, as part of the municipal income tax, a church tax to the Lutheran Church of Sweden. Not being a member of that Church, the applicant was entitled to a reduction of the church tax in accordance with section 1 of the Act on Reduction of Tax Liability of Persons Not Members of the Church of Sweden (Lag om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, 1951:691; hereinafter “the Dissenter Tax Act”). Accordingly, he was charged 625 Swedish kronor (SEK), or about 0.23 per cent of his taxable income, in church tax, which was paid to the relevant parish in Sollentuna. This amount corresponded to 25 per cent of the amount he would have had to pay had he been a member of the Church of Sweden. Upon review, the tax authorities upheld its decision on 23 March 1995. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that the levying of church tax on someone who is not a member of the Church of Sweden contravened, inter alia, the Swedish Constitution and Article 9 of the Convention. He requested the court to hold an oral hearing in the case. By a judgment of 19 May 1995 the court rejected the applicant's appeal and his request for an oral hearing. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which, on 6 November 1995, refused to hold an oral hearing and, on 22 December 1995, rejected the appeal against the tax decision, finding it to be in conformity with the Swedish Constitution and the Dissenter Tax Act. On 29 May 1996 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal. According to the Burial Act (Begravningslagen, 1990:1144), the parishes within the Church of Sweden are obliged to construct and maintain public burial-grounds, unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself (chapter 2, section 1). The right to be buried in a public burial-ground is not dependent on the deceased being a member of a particular religious community (chapter 2, section 4). However, the responsible organ, whether it be the local parish or the municipality, is obliged to provide for separate burial-grounds for those who are not members of any Christian community. The construction and maintenance of such burial-grounds are done in consultation with the religious communities concerned (chapter 2, section 2). Decisions taken under the Act by the parish or the municipality may be appealed against to the County Administrative Board (länsstyrelsen) (previously regulated in chapter 9 of the Act, now in chapter 11). In the municipality where the applicant was liable to pay tax – as in most parts of Sweden – the burial administration remains with the local parish of the Church of Sweden. When the responsibility for the keeping of population records was transferred from the Church of Sweden to the local tax authorities in July 1991 (see further below), it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the State archives (section 10 of the Act on Promulgation of the Population Registration Act; Lagen om införande av folkbokförings-lagen, 1991:481). It was estimated that it would take up to twenty years before all old records had been so transferred. The Church Act (Kyrkolagen, 1992:300) also specifically stipulated that a parish may, inter alia, use its financial means to acquire and maintain church buildings and other ecclesiastical property. At the material time, a church tax was collected together with the ordinary municipal tax. Chapter 21, section 1 of the Church Act referred in this respect to the provisions of the Municipal Tax Act (Kommunalskatte-lagen, 1928:370). The rate was determined by the local parish council which, under the transitional provisions of the 1974 Constitution (Regeringsformen), had a status similar to that of the municipalities, including the right of taxation. This system had a long tradition, based on the fact that the Lutheran Church of Sweden is the established church. In 1990 the rates applied by the parishes varied between 0.56 and 2.64 per cent of the taxpayer's taxable income. The lowest rates were applied by the parishes of Stockholm where it is the municipality – and not the parishes – that has the responsibility for the burial administration (cf. Svenska kyrkans ekonomi, Statskontoret 1991:12, p. 9, a report on the economy of the Church of Sweden made by the National Agency for Administrative Development). The Dissenter Tax Act stipulated that a person who was not a member of the Church of Sweden should pay a reduced church tax, the so-called dissenter tax. The reduction was motivated by the fact that non-members, referred to as dissenters, should pay the share of the tax that corresponded to the costs relating to the civil, i.e. non-religious, activities of the parish. The dissenter tax, like the church tax, was collected by the local tax authority and forwarded to the relevant parish. Originally, the dissenter tax amounted to 60 per cent of the ordinary church tax. In 1974 it was reduced to 30 per cent of what the members of the Church of Sweden had to pay. The rationale behind this change was that the share of the costs for the civil tasks performed by the Church – the keeping of population records and the maintenance of churchyards and public burial-grounds – amounted on average to approximately 30 per cent of the Church's total costs (cf. Government Bill 1973:184, pp. 3-5). On 1 July 1991 the responsibility for the keeping of population records was transferred to the local tax authorities. With effect as from 1993, the dissenter tax was consequently further decreased, this time to 25 per cent of the amount paid by the members of the Church of Sweden. It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased (cf. Government Bill 1991/92:100, appendix 8, p. 141). Reference was made to the above-mentioned report on the economy of the Church of Sweden, according to which 1.25 billion SEK, or about 24 per cent of the Church's total costs, related to the burial of the deceased. Under Chapter 42 of the Church Act the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so-called Church Fund. Poor parishes received a general equalisation subsidy which was not ear-marked for any particular purpose. They could also be granted extra subsidies for specific purposes. On 1 January 2000 the relations between the Swedish State and the Church of Sweden were changed, involving in practice a separation between the State and the Church. The Chuch Act and the Dissenter Tax Act were abolished. The parishes' right of taxation, previously regulated in the Church Act and the Municipal Tax Act, was replaced with an obligation, laid down in section 7 of the new Act on the Swedish Church (Lagen om svenska kyrkan, 1998:1591), on persons belonging to the Church to pay a church fee. According to the new chapter 9 of the Burial Act, every person who is registered as resident in Sweden has to pay a burial fee to defray the costs of the burial of the deceased (section 1). The fee is based on the taxpayer's taxable income (section 3) and is paid to the organ – parish or municipality – responsible for burials at the place where the individual is registered (section 2 § 1). In the municipalities where the local parishes are responsible for burials, the fee of the members of the Church of Sweden is to be included in the church fee (section 2 § 2). According to the Burial Fee Ordinance (Förordningen om begravningsavgift, 1999:729), the burial fee of non-members is fixed by the National Judicial Board for Public Lands and Funds (Kammarkollegiet) following a proposal by the Church of Sweden. The Church of Sweden and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of the Church – the National Judicial Board with the information needed to calculate and collect the fees. Under the new chapter 10 of the Burial Act, the relevant County Administrative Board supervises the parishes' burial administration in respect of persons who are not members of the Church of Sweden. As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value, the Church of Sweden is to receive certain financial compensation from the State for the performance of this task.
| 0
|
train
|
001-57497
|
ENG
|
PRT
|
CHAMBER
| 1,984
|
CASE OF GUINCHO v. PORTUGAL
| 2
|
Violation of Art. 6-1;Pecuniary damage - financial award
| null |
8. The applicant is a Portuguese citizen, born in 1949. He works as an electrician and resides in Lisbon. On 18 August 1976, he was travelling in a car with Mr. Domingos Lopes, who was the owner and driver of the car, and with the latter’s brother, Mr. José Carlos Lopes. At Alverca, the car entered into collision with a vehicle belonging to the Canalux Company of Lisbon and driven by Mr. Antonio Rodrigues Baptista Dinis. Mr. Guincho was injured and lost the use of his left eye; on 18 May 1977, he was certified as having a permanent partial disability. 9. After being notified of the accident by the local police, the public prosecutor’s department at the Vila Franca de Xira Regional Court instituted criminal proceedings against the drivers of both vehicles for causing unintentional bodily harm. On 20 January 1977, the applicant learnt that the file on the case had been closed as a result of an amnesty granted under a Legislative Decree. 10. On 7 December 1978, Mr. Guincho and Mr. D. Lopes ("the plaintiffs") commenced a civil action in the Vila Franca de Xira Regional Court against Mr. Dinis, the Canalux Company and the "Tranquilidade" Insurance Company ("the defendants"). The applicant claimed damages of 350,000 Escudos. Under Article 68 of the Road Traffic Code, civil liability actions in road traffic matters must be conducted in accordance with summary procedure. Under the Code of Civil Procedure (Articles 783 to 800), this procedure is characterised, inter alia, by the reduction of certain time-limits. 11. On 9 December 1978, the judge of the second chamber (2o juizo) of the Vila Franca de Xira Regional Court granted the plaintiffs legal aid and ordered service of the writ on the defendants. In this connection, the judge issued a request for service (oficio precatorio) in Lisbon, the defendants’ place of residence. In principle, when such a request is received at a court the registry has two days in which to submit it to the judge. The latter must then order the writ to be dispatched for service within five days, following which the relevant registry official is bound to execute the request for service within a similar five-day interval unless he has a justifiable excuse (Articles 159 and 167 of the Code of Civil Procedure). On 30 January, 28 February, 2 April, 4 May and 11 June 1979, the judge of the first chamber of the Vila Franca de Xira Regional Court, replacing the judge of the second chamber (whose post was vacant), insisted that the request for service of the writ be given effect. However, this was not done until 18 June. 12. The "Tranquilidade" Insurance Company filed its defence (contestaçao) on 27 June contesting the plaintiffs’ claims. It applied to have a third party, Mr. José Lopes (see paragraph 8 above), joined in the proceedings (intervençao principal). On 2 July 1979, Mr. Dinis and the Canalux Company filed their defence. They indicated that at the appropriate moment they would be seeking to have a medical examination of the plaintiffs. 13. The registry of the Vila Franca de Xira Regional Court transmitted the file to the judge on 4 July. On 28 January 1981, the judge directed that the defence pleadings be communicated to the plaintiffs and that they are allowed five days to reply to the interlocutory application by the "Tranquilidade" Insurance Company. In their reply filed on 9 February 1981, the plaintiffs took issue with the other side’s submissions and claimed that the interlocutory application was a delaying tactic as Mr. José Lopes, who was the brother of Mr. Domingos Lopes, had suffered no prejudice and had expressly waived his right to claim damages. In addition, they complained that they had not been notified until January 1981 of defence pleadings dating back to June and July 1979, and informed the Regional Court that Mr. Guincho had lodged a petition with the European Commission of Human Rights in connection with the length of the proceedings. The registry of the Regional Court did not transmit this reply to the judge until 26 March 1981. 14. In the meantime on 10 February 1981, the judge had declared the interlocutory application admissible on the ground that no objection had been raised against it, and he directed that a summons be served on Mr. José Lopes, who resided in Loures. A request for service in that jurisdiction was issued on the same day and service was effected on 26 February. On 27 March 1981, the above-mentioned judge, having received late notice of the objection to the application, decided nonetheless to maintain his decision of 10 February 1981. In a preliminary decision (despacho saneador) taken on the same day, he declared the main action admissible and drew up a list of uncontested facts (especificaçao) and a list of facts that had to be clarified at the hearing (questionario). 15. The parties did not enter an appeal (agravo) against this decision. On 29 April, 30 April and 5 May 1981, they filed in the registry the list of witnesses they proposed to call. Mr. Guincho and Mr. D. Lopes asked that one of their witnesses, Maria do Sacramento Peixoto Silva, be heard at Almada, the seat of the Regional Court within whose jurisdiction she was said by them to reside. The judge consented on 18 May 1981 and a request for evidence on commission (carta precatoria) was issued on 1 June. On 8 June, the Almada Regional Court set the hearing down for 9 July 1981. However, the Court discovered soon afterwards that Mrs. Silva did not reside within its jurisdiction; on 12 June, it forwarded the request to the Seixal Regional Court, the competent court in this respect. 16. On 26 June, the judge of the Seixal Regional Court issed a direction to the effect that he would hear the witness on 12 October. On 9 October, the lawyer representing the first two defendants sent the judge a telegram saying that he could not be present because of illness. Mrs. Silva failed to appear on 12 October. The same day, the judge fined her and directed that she be heard on 17 November 1981. However, the lawyer once more notified the judge by telegram that he was still unwell, and the witness did not attend. The judge thereupon adjourned the hearing of the witness until 10 February 1982; Mrs. Silva was finally examined on that date. 17. The evidence taken on commission was sent to the Vila Franca de Xira Regional Court. The judge dealing with the case received it on 16 February 1982. The following day, he submitted the file to the two other judges of the full Court who certified it on 18 February. On 19 February, he directed that the hearings be held on 12 March 1982. The hearings could not be held on that day because of the absence of the lawyer representing the first two defendants and of two other persons, namely Fernanda do Carmo Oliveira, in respect of whom the summons as requested by the "Tranquilidade" Insurance Company indicated an address where she was not known, and a witness called by the plaintiffs, the police officer Adriano da Cruz Surreira. The latter witness had drawn up the report on the accident (see paragraphs 8 and 9 above) but had subsequently been transferred to Oporto. The judge therefore adjourned the hearings until 16 June and then until 15 December 1982. He also issued a request for the evidence of the latter witness to be taken on commission in Oporto, as he had been asked to do by counsel for Mr. Guincho and Mr. Lopes. 18. The Oporto Regional Court summoned Mr. Surreira to appear on 14 May 1982, but on that day neither he nor the lawyers representing the plaintiffs and the first two defendants attended and the hearing was deferred until 3 June. However on 18 May, the judge was informed that the witness had again changed his residence and was serving in Montalegre; the request for evidence on commission was therefore forwarded to the Regional Court of that town. The Montalegre Regional Court set the hearings down for 1 June 1982. On that day, Mr. Surreira’s superiors gave notice that the demands of public service (razoes inadiaveis de servico publico) prevented his attendance. Counsel on both sides also failed to appear. Examination of the witness took place finally on 17 June 1982 and the evidence on commission was remitted to the Vila Franca de Xira Regional Court. 19. On 29 July 1982, because of the impending court vacation, the competent judge decided to bring the hearings forward to 20 October 1982. The hearings were duly held on that day. Judgment was given on 25 October 1982. The Regional Court found for the plaintiffs; it held that they were entitled to damages from the defendants within the limits of the statement of claim but subject to the proviso that the liability of the "Tranquilidade" Insurance Company could not exceed 200,000 Escudos. The Regional Court awarded Mr. D. Lopes, compensation for repairs to the car and for pecuniary and non-pecuniary prejudice. In the case of Mr. Guincho, on the other hand, it considered that the amount of the award could not yet be assessed, and it reserved the decision on quantum for the procedure for "execution" of the judgment (liquidacao en execucao de sentenca) in accordance with Article 661 para. 2 of the Code of Civil Procedure. The judgment was notified in writing to the applicant on 3 November. The Regional Court subsequently liquidated the costs and expenses, having varied its decision with regard to this point in December 1982. The applicant was given notification thereof on 9 December 1982 and then on 17 January 1983. None of the parties appealed. 20. On 22 September 1983, Mr. Guincho sought "execution" of the judgment in the Vila Franca de Xira Regional Court. Prior to that, he had received from the "Tranquiladade" Insurance Company part of the sum claimed. According to the evidence adduced before the Court, the Vila Franca de Xira Regional Court has not yet fixed the quantum of compensation to be awarded to the applicant. The socio-political situation 21. The Government stressed that at the relevant time the Portuguese legal system had to operate under exceptional circumstances on account of the restoration of democracy in April 1974, the need to consolidate the newly set up institutions and the repatriation of almost a million people from the former colonies. The domestic courts had to be reorganised in a period of serious economic recession. From 1974 to 1979, the volume of litigation almost doubled. On 25 April 1974, there were only 336 judges in office, that is approximately four times fewer judges per inhabitant than the European average; by the end of 1983, the number had risen to 952. In 1976, court administration posts totalled 2,844, including 20 per cent vacant; currently, on the other hand, 5,566 of the 5,714 existing posts are filled. After the Constitution was published in 1976, several measures relating to the administration of justice were taken. Notably, access to legal aid was improved, Acts governing the judiciary, the Supreme Council of the Judiciary and the office of the Procurador-Geral were passed, a judicial re-organisation of the territory was carried out and a Centre of Judicial Studies (Centro de Estudos Judiciarios) was set up to train judges and judicial officers. Situation at the Vila Franca de Xira Regional Court 22. Against this general background, the population of Vila Franca de Xira increased by nearly one quarter between 1978 and 1984, partly because of the privileged position of the town on an important main road and partly because of the influx of people repatriated from the former colonies. According to the statistics supplied by the Government, the number of cases, both civil and criminal, before the chambers of the Vila Franca de Xira Regional Court increased sharply: 2,377 in 1976, 2,705 in 1977, 4,079 in 1978, 4,175 in 1979 and 5,485 in 1980. As far as civil actions were concerned, the following figures were cited: 1978 - first chamber: 206 second chamber: 199 1979 - first chamber: 457 second chamber: 337 1980 - first chamber: 579 second chamber: 508 23. The established posts of judge in the second and first chambers of the Vila Franca de Xira Regional Court remained vacant for more than five months (from 7 January 1979 to 26 June 1979) and nine months (21 June 1979 - 8 April 1980), respectively. On each occasion, the judge sitting in the other chamber was obliged to deputise during the period of vacancy; in particular, the judge of the first chamber acted in this way in the applicant’s case (see paragraph 11 above). 24. According to uncontested information furnished by Mr. Guincho’s representative, the lawyers in Vila Franca de Xira met on 14 December 1979 and drew the attention of the Supreme Council of the Judiciary and the Minister of Justice to the "chaotic" situation of the Regional Court and asked for urgent measures to be taken, in particular the appointment of another permanent judge, three seconded assistant judges, an investigating judge, a registrar and six court officials whose posts were then vacant. On 18 February 1980, they raised the matter again with the Minister of Justice. On 29 May, they sent a telegram to the Supreme Council of the Judiciary once more urging the appointment of judges and emphasising that it was "humanly impossible" for the two judges in office to cope with the backlog of cases. On 27 February 1981, they made further representations to the Minister and the Supreme Council. On 19 March 1981, the judge of the second chamber himself requested the relevant department of the Ministry of Justice to recruit a number of court officials as a matter of urgency. Steps taken by the Government 25. The Government pointed out that from 1 October 1980 to 19 February 1981; the four judges sitting on the Vila Franca de Xira Regional Court were aided by a seconded assistant judge. Furthermore, as from March 1981, the Supreme Council of the Judiciary decided that three judges from Lisbon should work on a part-time basis in in the Vila Franca de Xira Regional Court. The number of court officials varied as follows: 1977: 14 out of 17 posts filled; 1978: 15 out of 23 posts filled; 1979: 27 out of 33 posts filled; 1980: 24 out of 27 posts filled; 1981: 23 out of 26 posts filled; 1984: 33 posts, all filled. According to the Government, the Supreme Council of the Judiciary recommended especial speediness in the conduct of the applicant’s case.
| 1
|
train
|
001-23689
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,004
|
KANDRACOVA and OTHERS v. SLOVAKIA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicants, whose names appear in the appendix, are siblings. They are Slovakian nationals. The respondent Government were represented by Mr P. Kresák, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 February 1992 the applicants lodged an action for restitution of property under the Extra-Judicial Rehabilitations Act of 1991 with the Bratislava - vidiek District Court (Okresný súd). They relied on Sections 2 § 1 and 6 § 2 of this Act and claimed that real property which formed a part of their late parents’ estate and which was in the possession of two individuals should be restored to them. On 17 March 1992 the District Court delivered a copy of the action to the defendants. On 21 March 1992 the applicants authorised an advocate to represent them in the proceedings. On 23 March 1992 the applicants filed a motion to the District Court to secure evidence by hearing two witnesses. They drew the court’s attention to the fact that the two witnesses were aged and in a poor state of health which did not permit them to appear in court. At the same time, they informed the court of the appointment of their lawyer and submitted additional documentary evidence. On 27 March 1992 the defendants requested an extension of the timelimit for filing their observations in reply to the action. On 4 April 1992 the defendants authorised a lawyer to represent them in the proceedings and, on 8 April 1992, they submitted their observations. By a letter of 27 April 1992 the defendants requested that a hearing scheduled for 20 May 1992 be adjourned as their lawyer was unable to attend on that date. On 21 May 1992 the applicants’ lawyer requested that a hearing scheduled for 3 June 1992 be adjourned at least until 20 June 1992 due to health problems of one of the applicants. In consequence of a certificate issued by a doctor on 8 June 1992, the participation of one of the defendants in the lawsuit was judged inappropriate as it could bring about deterioration in her health. On 13 July 1992 the District Court held a hearing. Two applicants and one defendant were not present. Their lawyers however excused their absence and took part in the hearing. The defendants’ lawyer proposed that, having regard to the medical condition of his absent client, it might be appropriate to hear her at her home. On 16 July 1992 one of the applicants requested that the District Court hear eleven witnesses. She pointed out that two of the witnesses were aged and were in poor health. On 28 July 1992 the District Court held the second hearing. One applicant and one defendant were not present but they excused their absence through their lawyers who took part in the hearing. On 16 September 1992 the District Court held the third hearing. Two applicants were not present but their lawyer, who was present, apologised for their absence. At an unspecified time the legal representative of the applicants requested that the District Court hear no witnesses before 10 November 1992. On 30 November 1992 the legal representative of the defendants requested that the District Court hear witnesses only after 15 December 1992. The District Court, acting through another judge (the second judge), had to adjourn the hearing scheduled for 19 April 1993 as none of the invited witnesses appeared, one of them having died in the meantime and one being seriously ill. On 25 June 1993 and on 27 September 1993 the applicants amended their action and submitted supplementary evidence in support of it. On 8 October 1993 the defendants submitted their observations in reply to the amended action. On 14 March 1994 the applicants complained about delays in the proceedings to the President of the District Court. On 16 May 1994 they sent a similar complaint to the Minister of Justice. On 31 May 1994 the President of the District Court informed the applicants that the judge dealing with the case had a heavy workload and that there was a shortage of judges at that court. He further informed them that the progress of case would be under supervision in order to avoid further delays. In July and August 1994 the applicants requested that the District Court promptly hear S., another witness. They pointed out that S. was elderly and in a poor state of health which prevented him from appearing in court. On 6 September 1994 a trainee judge (právna čakateľka) of the District Court heard S. at his home. The witness maintained that he could only take part in a court hearing after the completion of medical treatment that was to commence on 12 September 1994. No party to the proceedings took part in that hearing. On 8 September 1994 the District Court sent a copy of the record of the hearing to the parties. On 27 September 1994 the defendants challenged the truthfulness of the testimony of S. and requested that he be reheard in a courtroom. At the end of 1994, the case was assigned to another judge (the third judge) in accordance with the general annual reallocation of cases for the judicial year 1995. On 23 January 1995 the District Court held the fourth hearing. Three applicants and one defendant did not appear. Their representatives took part in the hearing and excused them. On 24 March 1995 the applicants requested that the District Court hear several witnesses. They drew the court’s attention to the fact that the witnesses were aged and that several witnesses whom they had previously proposed to hear had died. On 27 March 1995 the District Court held the fifth hearing. On 25 April 1995 the applicants requested that the District Court hear one of the defendants. On 4 April 1995 the District Court scheduled that defendant’s hearing for 20 April 1995. However, the hearing could not take place and had to be postponed as, by that time, the postal service had not provided a report showing that the invitations had been served on the parties in time. The hearing took place at the defendant’s home on 30 May 1995. On 1 June 1995 one of the applicants requested the District Court not to schedule a hearing before 24 June 1995 as she would be on a business trip until that date. The hearing called for 26 June 1995 was adjourned and the District Court ordered the applicants to submit further documentary evidence. The applicants complied on 28 June 1995. On 28 July 1995 a District Court Judge heard another witness. In a submission of 8 August 1995 the applicants restated their action in that they sought a judicial ruling declaring them to be the owners of the property in question. On 11 August 1995 the defendants submitted their observations in reply to the restated action. At the sixth hearing held before the District Court on 17 August 1995, the applicants, through their lawyer, confirmed that they wished to modify the original subjectmatter of their action. They undertook to submit a newly reformulated version of their action within three days. On 21 August 1995 the applicants submitted the amended action in which they sought a judicial ruling declaring void a donation agreement and ordering the defendants to restore the real property in issue to them. On 19 September 1995 the defendants filed their observations in reply to the redrafted action. At the seventh hearing held on 21 September 1995 the District Court decided not to grant the applicants leave to change the subjectmatter of their action. On 27 September 1995 the applicants filed their final submission. On 5 October 1995, following the eighth hearing, the District Court dismissed the action. It found, inter alia, that the applicants had failed to prove that their legal predecessors had formally owned the property in question. It further found that it had not been established that the State had taken over the property and that the defendants had acquired the property from the State contrary to the rules then in force which were the prerequisites for granting the claim. The decision was served on the legal representatives of the parties on 28 December 1995. On 12 January 1996 the applicants appealed. They argued inter alia that their title to the property was based on hereditary succession and that, in the past, the State has actually prevented them from using the property at issue. On 8 February 1996 the defendants filed their comments on the appeal. On 12 September 1996, following a hearing, the Bratislava Regional Court upheld the first instance judgment. It found that the evidence available indicated that the property in question had never been formally transferred to the State. The fact that the State had actually disposed of the property had no bearing on this conclusion. The defendants had acquired the property by succession and by donation inter vivos within their family. The Regional Court therefore concluded that the requirements for the restitution of the property were not met. On 7 March 1997 the applicants filed an appeal on points of law to the Supreme Court. The latter declared it inadmissible on 26 February 1998 having found no shortcomings in the proceedings which would justify quashing the Regional Court’s judgment.
| 0
|
train
|
001-98717
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF ARTYOMOV v. RUSSIA
| 3
|
Violations of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
6. The applicant was born in 1973 and lived until his arrest in the town of Gvardeysk, Kaliningrad Region. 7. On 8 September 1999 the Gvardeyskiy District Court of the Kaliningrad Region found the applicant guilty of aggravated blackmail and sentenced him to five years' imprisonment. 8. In separate proceedings, on 16 November 2000 the Supreme Court of the Russian Federation, in the final instance, convicted the applicant of disruption of order in a detention facility and sentenced him to ten years' imprisonment. 9. From 16 August 1998 to 14 April 1999 the applicant was detained in Kaliningrad no. IZ-39/1 detention facility. According to the applicant, that detention facility was built in 1929 and no construction works to the cells have been carried out since. 10. According to certificates issued on 20 December 2005 by the director of the facility and produced by the Government, the applicant was kept in twenty-two different cells which measured 7.8, 14 and 31.1 square metres. The Government submitted that the information on the exact number of inmates detained together with the applicant was not available. They noted that the cells could have occasionally been overcrowded, but at all times the applicant had had an individual bunk and bedding. Relying on the information provided by the director of the facility, the Government further argued that the sanitary conditions in the cells were satisfactory. 11. The applicant did not dispute the cell measurements. However, he alleged that the cells which measured 14 square metres had had ten sleeping places and usually had housed from 24 to 30 inmates. The smaller cells had either six or eight sleeping places and accommodated from 14 to 22 detainees. Given the lack of beds, inmates had slept in shifts. The applicant further submitted that the sanitary conditions had been appalling. 12. On 12 June 2002 the applicant lodged an action against facility no. IZ-39/1 and the Ministry of Finance, seeking compensation for damage. He described the conditions of his detention in minute detail and claimed that his detention had amounted to torture. He also sought leave to appear before the court. 13. On 17 June 2002 the Tsentralniy District Court of the Kaliningrad Region refused leave to appear because the domestic law did not require the applicant's presence. A month later the applicant again unsuccessfully sought leave to appear and asked to be assisted by legal aid counsel, arguing that he had no means to pay for legal assistance. 14. On 15 July 2002 the Tsentralniy District Court dismissed the action because the applicant had failed to prove that the facility administration had been liable for damage allegedly caused to him and he had not produced evidence showing that his rights had been violated. That judgment was quashed by the Kaliningrad Regional Court on 13 November 2002. The case was remitted for fresh examination. 15. On 21 January 2003 the applicant received a letter from a judge of the Tsentralniy District Court informing him that he could not be granted leave to appear as the law did not allow a transfer of detainees from facilities where they are serving their sentence to enable them to take part in civil proceedings. The judge noted that the District Court had no right to bring the applicant to the hearing, as his regime of detention would be violated. The judge further informed the applicant that he could appoint a representative or authorise the District Court to examine the action in his absence. 16. On 28 February 2003 the Tsentralniy District Court, in the applicant's absence, dismissed the action. The relevant part of the judgment read as follows: “[The applicant] was not brought to the hearing because the law on civil procedure does not prescribe the transport of prisoners who serve sentence in detention facilities to court hearings to allow them to take part in examination of civil cases. [The applicant] did not want to make use of his right to issue a power of authority to a representative to ensure his participation in the examination of the case; he was duly informed about the date and time of the hearing. ... As it follows from information presented on 27 February 2003 by the administration of detention facility no. IZ-39/1, cell no. 4/19 [where the applicant was detained] measures 14 square metres; it is impossible to establish how many inmates were detained in the cell as such data were not recorded. Mr S. [who was detained together with the applicant] indicates in his claim that the cells in which he had been detained had been overcrowded. As it follows from [the applicant's] detention record he was detained in 22 different cells during his detention. The above-mentioned circumstances attest to the fact that there is no objective, true and sufficient evidence corroborating [the applicant's] statement that two square metres [of personal space] were afforded to each three inmates. Moreover, funds were not provided from the federal budget for the construction of the second building of the detention facility between 1998 and 2000. According to certificate no. 1397 issued on 2 July 2002 by the Department for Execution of Sentences, due to lack of funds reconstruction and major repair works were not carried out in the detention facility in 1998 and 1999. By virtue of Article 1069 of the Civil Code of the Russian Federation, damage caused to an individual by unlawful actions (omissions) of State authorities, municipal authorities or their officials is to be compensated and is compensated at the expense of the Treasury of the Russian Federation, treasuries of the constitutive entities of the Russian Federation or treasuries of the municipal authorities respectively. Taking into account the above-mentioned circumstances, the court concludes that having regard to the lack of funds in the federal budget for the reconstruction and major repair works of the detention facility and to the fact that [the applicant's] arrest was authorised by a prosecutor, the actions of the administration of detention facility no. IZ-39/1 pertaining to [the applicant's] placement and detention in the facility had a lawful character and complied with requirements of the law; thus, the respondents do not bear responsibility under Article 1069 of the Civil Code of the Russian Federation. ... By virtue of Article 151 of the Civil Code of the Russian Federation, if an individual sustained non-pecuniary damage (physical and moral sufferings) as a result of actions which violated his personal non-pecuniary rights or which encroached on his other non-pecuniary interests or in other cases which are prescribed by law, a court may order that the adversary should compensate non-pecuniary damage. As it was indicated above, the respondents are not those who caused damage due to the overcrowding in the detention facility cells; lack of repair works; [the applicant] contracting a skin rash; the deterioration of [the applicant's] eyesight; as to [the applicant's] allegations of insufficient food, lighting and provision of essentials, they were refuted by the case file materials; accordingly, the court dismisses [the applicant's] action.” 17. The applicant lodged an appeal statement, complaining, inter alia, that he had not been afforded an opportunity to attend the hearings before the District Court and thus he had been unable to argue his case effectively. The applicant sought leave to appear before the appeal court. 18. On 4 June 2003 the Kaliningrad Regional Court upheld the judgment of 28 February 2003, endorsing the reasons given by the District Court. The relevant part of the judgment read as follows: “As to [the applicant's] claims of overcrowding in the cells in which he was detained and inability to shower at least once a week, as prescribed by the Rules on Internal Order, those allegations were confirmed; at the same time, those violations of the detention rules did not have a gross and malicious character amounting, as [the applicant] claimed, to torture. For instance, [the applicant] could shower every ten days in view of the throughput capacity of the bathhouse; that fact cannot be considered a serious violation of [the applicant's] rights. As it follows from a certificate submitted by the facility administration to the court, during the period indicated by [the applicant] from 1,600 to 1,800 persons were detained in the facility, while the maximum permitted number of inmates was 1,015. In such circumstances, the cells in fact occasionally accommodated more inmates than was permitted, however the [permitted] number was not exceeded threefold as [the applicant] claimed. At the same time the [District] Court rightfully considered that there was no guilt on the part of the detention facility in such circumstances, as the facility did not have the right not to admit the detainees when the maximum capacity of the facility had been exceeded. The [District] Court lawfully found that there were no grounds for accepting [the applicant's] action for compensation for non-pecuniary damage as the responsibility under Article 1069 of the Civil Code of the Russian Federation only arises on the condition of guilt on the part of the State authorities, which is absent in the present case. ... The court cannot accept [the applicant's] argument that his right to defence was violated. Norms of the Code of Civil Procedure (in force at the material time) do not require transport of detainees to courts which examine civil cases. The [District] Court informed [the applicant] of his right to participate in a court hearing through his representative, however, [the applicant] did not want to make use of that right. His requests for appointment of legal aid counsel also could not be granted by the [District] Court because there is no norm in the Code of Civil Procedure which requires Bar Associations to represent interests of such persons in civil cases. At the same time, nothing precluded [the applicant] from asking a Bar Association to represent him.” The applicant was not brought to the appeal hearing. 19. On 19 April 2000 the applicant was transferred from a colony where he was serving his sentence pursuant to the judgment of 8 September 1999 to facility no. IZ-39/1 to take part in the trial on the charge of disruption of order in the colony. He remained in facility no. IZ-39/1 until 26 September 2000. 20. According to the applicant, he was detained in a number of cells. He provided description of the two cells: cell no. 79 which measured 17 square metres, had 10 sleeping places and accommodated 18 to 24 inmates, and cell no. 29, which measured 10 square metres, had six sleeping places and accommodated 15 inmates. The inmates took turns to sleep. The applicant argued that the sanitary conditions in the cells had been unsatisfactory. The ventilation system did not function, making the heat in summer unbearable. The cells were permanently lit by 40-watt bulbs. The toilet was not separated by a partition from the living area. At no time did the applicant have complete privacy. Anything he happened to be doing – using the toilet, sleeping – was subject to observations by the guard. He could shower twice a month. Of the ten shower heads only five worked and a large group of inmates had to fight for a place to shower within the afforded fifteen minutes. The cells were dirty, damp and full of insects. 21. The Government, relying on certificates issued by the director of the detention facility on 15 July 2009, argued that the applicant had been detained in eight different cells, of which six cells measured between 7.7 and 7.9 square metres and had two sleeping places and the remaining two cells measured 13.4 and 16.7 square metres and were fit to accommodate three inmates. The Government submitted that the number of inmates in the cells had always corresponded to the number of bunks. As follows from a certificate issued by the facility director, the information on the exact number of inmates detained together with the applicant was unavailable as the registration logs had been destroyed. 22. The Government further submitted that each cell had a glazed window 1.2 metre high and 0.9 metre wide, which was covered by thick bars with so-called “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen, which gave no access to natural air or light. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows before March 2003. According to the Government the sanitary conditions were satisfactory. The cells were ventilated and had a central heating system, water supply, sewerage, natural and electric lighting and sanitary equipment. The applicant had free access to drinking water. The toilet was separated by a one-metre-high partition from the living area of the cell. The electric lighting was constantly on for surveillance and safety reasons. At night lower-voltage bulbs were used. The cells were disinfected at least once a month. The applicant was afforded an opportunity to shower every ten days for no less than fifteen minutes. He was provided with an individual bed, mattress, pillow and bed linen. 23. On 9 June 2003 the applicant sued facility no. IZ-39/1 and the Kaliningrad Regional Department of the Federal Treasury for compensation for damage. In his statement of claim he gave a detailed account of the conditions of his detention from 19 April to 26 September 2000. 24. On 23 June 2003 the Tsentralniy District Court stayed the adjudication of the action and asked the applicant to indicate possible evidence showing that the alleged violations had in fact occurred. On 6 August 2003 the Kaliningrad Regional Court upheld that decision. There is no indication that the applicant sought resumption of the proceedings. 25. On 19 December 2003 the applicant was taken from the colony to facility no. IZ-39/1 to attend an appeal hearing pertaining to one of his actions. He was sent back to the colony on 12 January 2004. 26. The Government, relying on a certificate issued on 20 December 2005 by the director of facility no. IZ-39/1, submitted that during that period the applicant had been detained in two different cells, each measuring 7.8 square metres. The Government further noted that the sanitary norm of personal space per inmate had not always been complied with, but the applicant had had an individual sleeping place at all times. According to the Government, the applicant was detained with three other detainees in the first cell. They were unable to indicate the exact number of inmates in the second cell. However, as it follows from the above-mentioned director's certificate, the facility did not have any information on the number of inmates in either of the cells in which the applicant had been detained. 27. Citing the information provided by the director of the facility, the Government further submitted that the cells received natural light and ventilation through a large window, which was double-glazed and measured 1.2 square metres. The windows had a casement. Inmates could request warders to open the casement to bring in fresh air. The windows were covered with latticed partitions to ensure “sound and visual insulation”. The cells had ventilation shafts. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tap for running water. The pan was separated from the living area by a one-metre-high partition. Inmates were allowed to take a shower once in ten days. Each inmate was afforded at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms”. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. The applicant did not ask for particular medical services. The Government furnished a copy of the applicant's medical record and medical certificates. 28. The applicant did not contest the cell measurements. However, he insisted that the cells had been severely overcrowded and he had had less than two square metres of living surface. Inmates had to take turns to sleep. The applicant further submitted that the sanitary conditions had been appalling. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. It was impossible to take a shower as inmates were afforded only fifteen minutes and two to three men had to use one shower head at the same time. That situation was further aggravated by the fact that inmates could only take a shower once in ten days. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was not separated from the living area by any partition. Thus, inmates were afforded no privacy. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that medical assistance had been unavailable. 29. The applicant complained to various authorities, including the Secretariat of the President of the Russian Federation, the State Duma, the Governor of the Kalinigrad Region, various prosecutors and the USA Embassy in the Russian Federation, about the conditions of his detention. The complaints were to no avail. 30. On 16 January 2004 the applicant lodged an action against facility no. IZ-39/1, seeking compensation for damage caused as a result of his detention in appalling conditions from 19 December 2003 to 12 January 2004. He also sought leave to appear before the court. 31. On 24 March 2004 the Tsentralniy District Court dismissed the action, relying on the same grounds as were cited in the judgment of 28 February 2003. In particular, the District Court noted that Article 1069 of the Russian Civil Code renders authorities amenable to responsibility for causing damage to individuals only if there has been fault in their actions or omissions. As there was no fault on the part of the domestic authorities for “mental and emotional sufferings or other damage” caused to the applicant, his action could not be accepted. 32. The applicant lodged an appeal statement, complaining, among other things, that the District Court had not granted him leave to appear. The applicant asked to be brought to the appeal hearing. 33. On 12 May 2004 the Kaliningrad Regional Court, in the applicant's absence, upheld the judgment, endorsing the reasons given by the District Court. As to the applicant's complaints that he could not attend the hearings before the District Court, the Regional Court noted that the applicant was serving his sentence in a correctional colony and thus it had been impossible to transport him to the hearings. The Regional Court pointed out that the applicant was aware of his procedural rights as a claimant. 34. At the material time the applicant was serving a prison sentence in correctional colony no. OM-216/13 in the village of Slavyanonvka, Bagrationovskiy District, Kaliningrad Region (also known as facility no. OM-216/13, hereinafter “the colony”). 35. In October 2001 a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences (отдел специального назначения Управления Исполнения Наказаний Минюста России по Калининградской области) arrived at the colony for the purpose of “performing searches in the living quarters of the colony”. 36. The applicant submitted that on 23 October 2001, at approximately 10.00 a.m., several officers had entered cell no. 22 where he had been detained. The officers wore balaclava masks. Without warning or any apparent reason they started hitting the applicant and his nine inmates with rubber truncheons and fists. The applicant fell to the floor but was forced to stand up. The officers, hitting and kicking the inmates, forced them to leave the cell. 37. The inmates were lined up in a corridor with their faces to the wall and were ordered to spread their legs, put their hands against the wall and to remain spread-eagled for ten minutes. The beatings continued. Subsequently the applicant and his inmates were taken to the entrance door where they saw two rows of officers wearing balaclava masks. The applicant was told to run between these rows to a car. While he was running, he received several blows to his back and his head with rubber truncheons. On the way back the applicant and other inmates again had to pass between the rows of masked officers, who subjected them to the beatings with rubber truncheons. 38. The applicant and the inmates were lined up with their hands against the wall and their legs wide apart. After three to four minutes of maintaining that position the applicant started feeling dizzy and his legs and arms swelled up. An officer hit the applicant with his fist on the left side of the back. Then several wardens in balaclava masks approached the inmates and started beating them up. The applicant was hit several times on the head, back and legs. He had been pushed strongly against the wall and his forehead was cut and bleeding. The beatings continued for another ten minutes. 39. During the following three days the applicant unsuccessfully requested the colony director to be examined by a doctor. On 26 October 2001 the applicant was visited by a colony doctor, who refused to record his injuries but ordered him to be confined to bed. According to the applicant, that fact was recorded in register no. 29 of the penal ward (журнал учета № 29 ПКТ-ШИЗО). 40. The Government disputed the applicant's description of events. They relied on a handwritten report by the head of the special-purpose unit, Mr M., who stated that no force or special measures had been used on 23 October 2001. 41. The Government submitted that on 23 October 2001 inmates in cell no. 22 had broken the sewage system and had begun “demanding to be detained in satisfactory conditions”. The officers of the special-purpose unit and the colony administration ordered the detainees to leave cell no. 22 and to move to cell no. 3. After the inmates had been body searched, they complied with the order. The unit officers searched the cell and found several forbidden objects, such as a metal pipe and a shaver. The Government noted that the colony doctor present during the search had recorded that the inmates had not had any complaints. The Government did not produce a copy of the relevant part of register no. 29 of the penal ward alleging its destruction in April 2005. 42. In his numerous letters to the Court and complaints to domestic authorities, the applicant provided accounts of events which had occurred on 7 November 2001. Inconsistencies abounded in those various accounts, but, in general, the applicant's version was as follows. He alleged that on 7 November 2001 he had complained to an officer on duty, Mr L., that the injuries sustained by him on 23 October 2001 had not still been properly recorded. Mr L. quickly looked through written complaints given to him by the applicant and started insulting and threatening the applicant. Following a quick argument, Mr L. took the applicant to his office and hit him several times in the hip area. The applicant fell down and the officer hit him twice in the face with his fist. Before placing the applicant back in his cell, the officer again hit him several times on the side of the back and pushed him into the cell. The latter episode was witnessed by six inmates detained together with the applicant in the cell and two warders. 43. The Government, relying on a report written by the officer on duty, Mr L., on 7 November 2001, submitted that the applicant had disobeyed a lawful order by the duty officer and force had been used to suppress the disobedience. The report read as follows: “[I] report that on 7 November 2001, at 8.50 a.m., during a check-up and examination of cells in the penal ward [I] made a remark to an inmate, [the applicant], as he was dressed improperly ([he] was standing in his underwear). [He] started explaining that he had washed his trousers. He was told to put on clean trousers. In response he began talking in a loud voice. Subsequently he was informed that he would be reported to [the facility administration]. In response he said: “Write twenty of those. ...[obscene language]”). [The applicant] was instructed to go to the duty room for a discussion concerning his dishonourable behaviour. When accompanied to the duty room, he tried to offer resistance. Having pushed me, [he] tried to run to his cell. Subsequently [I] used physical force, put [the applicant] on the floor using a fight method, and [I] gripped his arm, using a fight method.” 44. The applicant was examined by a doctor on the same day. The doctor recorded an abrasion on the side of the applicant's back. The applicant alleged that the doctor had refused to record other injuries. On the following day the applicant applied to the head of the colony seeking a thorough medical examination and asking for his injuries to be properly recorded. According to the applicant, that complaint brought no response. 45. According to the Government, on 18 January 2002 approximately 260 inmates, including the applicant, went on hunger strike. Approximately forty inmates performed acts of self-mutilation. Three days later a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences arrived at the colony to give assistance in “performing searches in the living quarters of the colony” as the hunger strike and self-mutilations continued. 46. The Government further submitted that on 21 January 2002, at about 4.30 p.m., a group of officers had entered cell no. 3, where the applicant had been detained, with the intention of searching it. The applicant refused to leave the cell, used offensive language, insulted warders and pulled their clothes. Following the applicant's refusal to stop his unlawful behaviour, an officer was forced to “use a rubber truncheon” against him. The applicant was taken out of the cell and body searched. A razor from a disposable shaver was seized. Relying on a certificate issued by the head of the colony medical division, the Government noted that the applicant had not applied for medical assistance between 21 January and 20 March 2002. 47. The applicant disputed the Government's version of events, arguing that after he had made known to the colony administration his intention to go on hunger strike, on 21 January 2002 a group of officers wearing balaclava masks had stormed into his cell and had taken inmates, apart from him, into a corridor. Then they hit him twice in the chest and head. The officers accompanied the beating with questions about the applicant's refusal to eat. Afraid for his life, the applicant promised to renounce his intention to take part in the collective hunger strike. He was taken to a corridor where some forty officers in balaclava masks stood. They intimidated and beat the applicant and his inmates. The applicant unsuccessfully asked the colony administration to record injuries sustained as a result of the beating. 48. The applicant submitted several detailed complaints to the Kaliningrad Regional Prosecutor about the events of 23 October and 7 November 2001 and 21 January 2002. He referred to Article 3 of the Convention, urging the prosecutor to institute criminal proceedings against the officers involved in the beatings, and identified witnesses who could have corroborated his complaints. It appears that a number of inmates lodged similar complaints of ill-treatment before the Kaliningrad Regional Prosecutor. 49. On 20 March 2002 the Kalinigrad Regional Prosecutor refused to institute criminal proceedings upon the applicant's and his inmates' complaints, finding no prima facie case of ill-treatment. That decision was based exclusively on statements by warders and officers of the special-purpose unit. 50. On 21 October 2002 the Tsentralniy District Court of Kaliningrad upheld the prosecutor's decision. That decision was quashed on appeal on 24 December 2002 by the Kaliningrad Regional Court on the ground that the applicant had not been allowed to attend the hearing before the District Court or to present his version of events. 51. On 17 March 2003 the Tsentralniy District Court again upheld the prosecutor's decision of 20 March 2002. The District Court's decision was quashed on appeal on 27 May 2003 because the District Court had not examined the complaints pertaining to the events on 7 November 2001. 52. On 25 June 2003 the Tsentralniy District Court quashed the prosecutor's decision and remitted the case for a fresh inquiry. The District Court reasoned that the prosecutor had not addressed the applicant's complaints of ill-treatment which had allegedly occurred on 7 November 2001. 53. Two weeks later, on 9 July 2003, the Kalinigrad Regional Prosecutor dismissed the applicant's ill-treatment complaints, refusing to institute criminal proceedings. The decision, based on the statements by the colony administration, warders and officers of the special-purpose unit, indicated that on 23 October 2001 no force had been applied to the applicant and his inmates because there had been no need to use force and that the applicant had not complained to a doctor about his state of health. In respect of the events on 7 November 2001 the prosecutor found that the use of force had been necessary because the applicant had disobeyed lawful orders of the officer on duty and had tried to run in the corridor. The applicant had been examined by a prison doctor, who had not recorded any injuries, save for an abrasion on his back which could have been sustained for some other reasons. As to the events on 21 January 2002, the prosecutor established that the applicant had refused to leave his cell, had sworn obscenely, had threatened wardens and pulled their clothing. The applicant had been hit with a rubber truncheon to stop his unlawful behaviour. The prosecutor concluded that the use of force had been lawful. 54. The applicant appealed against the prosecutor's decision to the Tsentralniy District Court. He furnished a list of inmates who could have corroborated his description of events, asked for them to be heard and also sought leave to appear before the court. 55. On 23 September 2003 the Tsentralniy District Court dismissed the complaint. The relevant part of the decision read as follows: “[The applicant] was duly informed about the place and time of the hearing; it was explained to him that it was impossible to transport him to the hearing; his absence could not preclude the examination of the complaints by the court. Having examined the case file materials, the decision of 9 July 2003, materials pertaining to [the applicant's] complaints to supervisory review instances, similar complaints by inmates, Mr B., Mr G., Mr M., and by a lawyer, Mr Me., and having heard the prosecutor who had insisted that the decision of 9 July 2003 and the prosecutor's actions were lawful and well-founded, the court finds as follows. ... The [prosecutor] carried out an inquiry into the three episodes [on 23 October and 7 November 2001 and 21 January 2002] and the court considers it lawful that while examining [the applicant's] new complaints, which did not contain any new information or facts pertaining to those episodes, [the prosecutor] used the findings of the previous inquiry. ... Thus, while carrying out an inquiry a prosecutor has the right to assess the necessity (or its absence) to question an applicant or witnesses, or to take other investigative measures. The Kaliningrad Regional Prosecutor, Mr Ko., examined [the applicant's] request of 14 July 2003 concerning the necessity to interrogate inmates of detention facility no. OM-216/13, and informed [the applicant] about it. The court did not establish, and [the applicant] did not present any evidence concerning a violation of his constitutional rights and freedoms or his right of access to a court by the contested decision of 9 July 2003 by which the institution of criminal proceedings had been refused or by other actions (omissions) of the prosecutor. Having regard to the above-mentioned circumstances, the court dismisses [the applicant's] complaint... The court does not grant [the applicant's] request for witnesses to be heard, because Article 125 of the Code of Criminal Procedure indicates the exhaustive list of persons who can take part in an examination of a complaint against a prosecutor's decision not to institute criminal proceedings or against other decisions and actions of a prosecutor. Those whose appearance before the court [the applicant] sought are not included in that list; a number of [witnesses] are inmates serving sentences in detention facilities and therefore they may not be transported to the courthouse to take part in the proceedings. [The applicant] was informed that it was impossible for witnesses to be heard.” 56. The applicant appealed, complaining, inter alia, that neither the prosecutor nor the District Court had heard him or other detainees who could have confirmed his statements, that they had not taken medical evidence and had limited their inquiry to statements by the colony officers. 57. On 18 November 2003 the Kaliningrad Regional Court upheld the decision of 23 September 2003, endorsing the reasons given by the District Court. The Regional Court noted that the applicant's presence at the hearings before the courts had not been necessary and that the District Court had rightfully refused to hear witnesses. 58. On 13 February 2006 the Presidium of the Kaliningrad Regional Court, by way of a supervisory review, quashed the decisions of 23 September and 18 November 2003, noting a violation of the applicant's right to take part in the hearings before the courts. 59. On 29 March 2006 the Tsentralniy District Court quashed the prosecutor's decision of 9 July 2003 and ordered a fresh inquiry into the applicant's ill-treatment complaints. The relevant part of the decision read as follows: “... during an inquiry into a complaint concerning a criminal offence committed, a prosecutor must thoroughly and objectively investigate all circumstances pertaining to the facts indicated in that complaint; this means that he must question all interested parties, in [the applicant's] case [he] must order an independent medical examination of the detainee, following which and having analysed all established circumstances and having performed an evaluation, [he] should issue one of the decisions indicated in Article 145 of the Code of Criminal Procedure of the Russian Federation. As it appears from the investigation file presented by the prosecutor and from the materials of the supervisory review, the inquiry into [the applicant's] complaints was not performed consistently, it was chaotic, [the applicant] himself and the eyewitnesses, indicated by [the applicant] in his complaints, were not questioned; [the prosecutor] received merely formal explanations from the officers; it is clear from those explanations that the prosecutor himself did not interrogate those officers; an independent medical examination of [the applicant] for a purpose of establishing injuries was not performed. In such circumstances, [the court] considers that the prosecutor's inquiry into [the applicant's] complaint was performed formally and subjectively, and that the contested decision by which the institution of criminal proceedings was refused is unsubstantiated. However, it is necessary to take into account that more than four years have passed since the events complained of by [the applicant] and it will be difficult to remedy the insufficiency of the prosecutor's inquiry into the complaints about the crime.” The applicant attended the hearing. 60. It appears that the investigation is now pending. 61. On 21 February 2002 the applicant and another inmate, Mr B., lodged actions against colony no. OM-216/13 and the Kaliningrad Regional Department of the Federal Treasury, seeking compensation for damage caused by beatings on 23 October and 7 November 2001 and 21 January 2002. 62. In May and June 2002 the applicant submitted several motions to the court, seeking leave to appear, asking to summon witnesses on his behalf and to obtain certain medical documents from the respondents. 63. On 26 April 2004 the Bagrationovskiy District Court, Kaliningrad Region, held a hearing in colony no. OM-216/13. The District Court heard the applicant, his co-plaintiff, the representative of the colony, and a number of witnesses. Both the applicant and his co-plaintiff insisted that the beatings had taken place. The representative of the colony confirmed that on 23 October 2001 physical force and rubber truncheons had been used against the applicant. However, he stressed that the use of the force and special means had been lawful. The head of the medical department of the colony and a prison doctor did not remember examining the applicant after the beatings. Having heard the parties and witnesses, the District Court dismissed the actions, holding, in so far as relevant, as follows: “At the plaintiffs' request the court heard, as witnesses, inmates who are serving sentences in that colony. Thus, witness T. confirmed that [the applicant] had been beaten by officers of the special-purpose unit on his way to the penal ward and in the walking area, while witnesses Kh. and Ga. (warders in the colony) did not confirm that allegation in the court hearing. An extract from [the applicant's] medical record confirms that on 26 October 2001 [the applicant] consulted a prison doctor, and an extract from register no. 29 of the penal ward corroborates the fact that the prison doctor, Mr G., had ordered that [the applicant] should be confined to bed until 29 October 2001. A witness, [the prison doctor], Mr G. stated in the court hearing that there is no information in the [applicant's] medical record pertaining to his applying for medical assistance on 23 October 2001. On 26 October 2001 he ordered [the applicant] to be confined to bed at the latter's request, as [the applicant] claimed that he was tired. [Mr G.] never refused to examine inmates, and in January 2002 he was on leave. Witnesses Mr Gr., Mr K., Mr Gu. and Mr Ta. testified that in the morning of 7 November 2001 there had been a loud argument between [the applicant], who was not dressed properly, and the officer on duty, Mr L., [and] stated that [the applicant] had been taken out of the cell and that Mr L. had twice hit [the applicant] with his fist on the back when the latter was brought back to the cell. As it follows from the statements by Mr L., [the applicant] responded rudely to Mr L.'s remark about his clothes; he was taken to the duty room to provide an explanation about the incident. However, [the applicant] pushed Mr L. aside and began running to his cell, screaming that he had been beaten up. Due to such disobedience, physical force in the form of a fight method was applied to [the applicant]. The testimony of this witness is confirmed by his report to the director of colony no. 216/13 made on 7 November 2001. An act was drawn up on 7 November 2001 as a confirmation of a use of force against [the applicant], on the same day a medical assistant, Ms Lo., recorded an abrasion on the left side of the small of [the applicant's] back. [The applicant] applied to a Justice of the Peace of the 1st Court Circuit with a complaint, seeking institution of criminal proceedings against Mr L., the warder in colony no. 216/13, alleging that he had committed libel by writing that report. The above-mentioned Justice of the Peace, in his decision of 20 October 2003, acquitted Mr L. of the charge of libel brought against him by [the applicant]... Thus, the court, in the course of the examination of the case, established that there had existed circumstances caused by [the applicant's] behaviour which had prompted the use of force against [the applicant], and that Mr L.'s report had described the events of 7 November 2001 correctly. The decision of 20 October 2003 was upheld on appeal by the decision of the appellate court on 11 February 2004 and became final on 13 April 2004. An extract from [the applicant's] medical record certifies that he did not apply for medical assistance between 26 October and 4 December 2001. On 21 January 2002, on an order of the head of the Kaliningrad Regional Department for Execution of Sentences, officers of the special-purpose unit arrived to colony no. OM-216/13 to give assistance to the colony administration in searching the living quarters and cells, having regard to an ongoing collective hunger strike and self-mutilations. At the same time a number of forbidden objects were seized from the penal ward, where [the applicant and his co-plaintiff] were detained. A rubber truncheon was used against [the applicant] who tried to resist an officer from the special-purpose unit, which is confirmed by the report and act of application of a rubber truncheon issued on 21 January 2002. As it follows from [the applicant's] medical record, medical assistance was not provided to him between 17 January and 11 March 2002. The Kaliningrad Regional Prosecutor's Office carried out an inquiry pertaining to the three episodes of beatings of which [the applicant] complained; as a result of the inquiry the prosecutor issued a decision on 9 July 2003 refusing to institute criminal proceedings as there was no criminal conduct in the actions. [The applicant] appealed against that decision in compliance with Article 125 of the Code of Criminal Procedure. The Tsentralniy District Court of Kaliningrad, by its decision of 23 September 2003, dismissed [the applicant's] complaint, finding that the disputed decision of the prosecutor was lawful and well-founded. The court decision became final on 18 November 2003. ... The Court does not have any grounds to doubt the above-mentioned court decisions. [The court] did not establish any instances of unlawful use of physical force against the plaintiffs in the course of the present proceedings, which allows the court to conclude that [the applicant's]... claim is unsubstantiated.” 64. The applicant appealed, also requesting the appeal court to ensure his presence at the hearing. 65. On 13 October 2004 the Kaliningrad Regional Court upheld the judgment of 26 April 2004, endorsing the reasons given by the District Court. Neither the applicant nor the representative of the respondents was present. 66. On 19 May 1999 six HIV-positive detainees arrived at the colony, where they stayed until 26 May 1999. The Government, relying on the information provided by the colony director, submitted that the HIV-positive detainees had been accommodated in a separate colony unit. The colony administration assigned a day when only those detainees could take showers and allocated separate medical equipment to them. Bedding provided for those detainees was changed and washed separately from that of the rest of the detainees. The tableware given to the HIV-positive detainees was also washed and disinfected separately. The colony administration, assisted by medical specialists, organised a meeting with the detainees and lectured them on AIDS and on how the virus could be transmitted. They also warned the HIV-positive detainees that knowingly transmitting HIV was a criminal offence. The Government submitted that the colony administration had taken every necessary precaution to prevent the spread of the disease in the colony. In particular, they prevented the use of drugs, sexual contact between inmates and tattooing. They also provided contraceptives to inmates who were allowed to have long-term meetings with relatives. The Government stressed that as a result of those actions no detainee had contracted HIV. 67. In 2000 and 2003 the applicant unsuccessfully sought institution of criminal proceedings against the colony administration because the HIV-positive detainees had been admitted to the colony. 68. On 20 March 2003 the Kaliningrad Regional Prosecutor sent a letter to the applicant informing him that his request had already been dismissed in 2000. 69. The applicant complained to a court that the prosecutor had failed to discharge his duties by refusing to reconsider his request. 70. On 29 July 2003 the Kaliningrad Regional Court, in the final instance, dismissed the complaint and discontinued the proceedings because an appeal should have been lodged against the decision of 2000 rather than against the letter of 20 March 2003. 71. On 1 March 2002 the applicant lodged an action against the Kaliningrad Regional Prosecutor and the Kaliningrad Regional Department for Execution of Sentences, seeking compensation for non-pecuniary damage. He claimed that he had feared for his life because the HIV-positive detainees had stayed in the colony. He also sought leave to appear. 72. On 20 March 2002 the Tsentralniy District Court informed the applicant that the hearing had been listed for 5 April 2002. The District Court also noted that the law did not provide a detainee with the right to attend a hearing in a civil case and that the applicant could appoint a representative or allow the District Court to adjudicate the action in his absence. 73. On 5 April 2002 the District Court dismissed the action, holding that the colony administration had taken the necessary steps to prevent the risk of HIV contagion and that no-one in the colony had contracted HIV. The administration provided the HIV-positive detainees with separate kitchenware. The detainees took showers separately and medical assistance was provided to them in a separate facility and with separate equipment. The colony administration organised meetings with detainees and lectured them on how AIDS could be transmitted. At the same time the District Court noted that the applicant could not contract HIV by taking showers or eating in the same premises as the HIV-positive detainees. 74. On 24 July 2002 the Kaliningrad Regional Court upheld the judgment. The applicant was not present. 75. On 26 February and 6 March 2002 the applicant lodged two tort actions against the Gvardeyskiy District police department and colony no. OM-216/13. In the first action the applicant claimed that in August 1998 police officers of the Gvardeyskiy District police department had seized his personal belongings and had not returned them to him. He further argued that he had been placed in the facility of that police department, where he had been detained in poor conditions and had only been provided with food once a day. In the second action he complained that the administration of colony no. OM-216/13 had not arranged screenings of films, as provided for by the domestic law. 76. On 13 May 2002 the Gvardeyskiy District Court dismissed the first action, finding that the applicant's allegations of insufficient food were false, and that his personal belongings had been seized lawfully. 77. On 7 August 2002 the Bagrationovskiy District Court dismissed the second action, holding that the domestic law did not provide detainees, including the applicant, with the right to see films. 78. On 21 August and 4 December 2002 the Kaliningrad Regional Court upheld the judgments of 13 May and 7 August 2002 respectively. The applicant was not brought to either the first-instance or the appeal hearings despite his requests. 79. On 31 January 2003 the applicant asked the colony administration to provide him with his medical records. On 5 March 2003 the administration provided him with general information about the state of his health and refused to give him the full record. 80. On 14 March 2003 the applicant unsuccessfully asked a prosecutor to institute criminal proceedings against the administration. On 23 September 2003 the Kaliningrad Regional Court, acting on an appeal by the applicant against the prosecutor's decision, discontinued the proceedings. 81. On 17 February and 25 April 2003 the applicant unsuccessfully asked various prosecutors to institute criminal proceedings against a judge who had determined one of his claims. Subsequently, the applicant complained to a court that the prosecutors had failed to discharge their duties. On 29 June and 29 July 2004 the Kaliningrad Regional Court, in the final instance, disallowed the complaints and discontinued the proceedings. 82. On 1 February 2004 the applicant asked for a transfer to another colony. On 17 August 2004 the Kaliningrad Regional Court, in the final instance, granted the request and held that the applicant should stay in a lower security colony. 83. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 84. When using physical force, special means or weapons, the penitentiary officers must: (1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2) ensure the least possible harm to detainees and provide medical assistance; (3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 85. Rubber truncheons may be used for (1) putting an end to assaults on officers, detainees or civilians; (2) repressing mass disorders or group violations of public order by detainees, as well as for apprehension (задержание) of offenders who persistently disobey or resist the officers (section 30). 86. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities' own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209). 87. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 88. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 89. Limitation of a citizen's rights and freedoms because of his or her HIV status may be authorised only by federal law (section 5 of the Law on Prevention of Propagation of HIV infection, 38-FZ of 30 March 1995). Detainees are subject to a compulsory medical examination (section 9 of the Law). A person who has tested HIV-positive must be informed thereof, be informed of the need to take precautions for preventing transmission of HIV and warned that contamination of others or exposing others to a risk of contamination is a criminal offence (section 13 of the Law; Article 122 of the Criminal Code). 90. According to the Rules on Compulsory Testing of Prisoners for HIV infection (adopted by the Russian Government on 28 February 1996), the prison administration must take measures preventing transmission of HIV; medical and other staff must not disclose information relating to a detainee's HIV status (Rules 11 and 13). 91. Section 101 § 2 of the Penitentiary Code provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision in so far as it related to HIV-positive prisoners. 92. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before a court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1). 93. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to a temporary detention facility if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant. 94. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008). 95. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” 96. The relevant extracts from the 11th General Report [CPT/Inf (2001) 16] prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases read as follows: “31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries.... ...[T]he act of depriving a person of his liberty always entails a duty of care... The use of up-to date methods for screening, the regular supply of medication...constitute essential elements of an effective strategy...to provide appropriate care to the prisoners concerned. ...[T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive. ...[I]t is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff. Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures. More particularly, the risks of HIV or hepatitis B/C infection through sexual contacts and intravenous drug use should be highlighted and the role of body fluids as the carriers of HIV and hepatitis viruses explained...” 97. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers to Member States concerning the ethical and organisational aspects of health care in prison read as follows: “13. Medical confidentiality should be guaranteed and respected... 38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medical reasons. 39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40. 40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections...” 98. The relevant part of the Appendix to Recommendation no. R (93) 6 of the Committee of Ministers to Member States concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison reads as follows: “9. As segregation, isolation and restrictions on occupation, sport and recreation are not considered necessary for seropositive people in the community, the same attitude must be adopted towards seropositive prisoners.” 99. Detention of HIV-positive persons was also examined in the following Recommendations of the Committee of Ministers to Member States: no. R (89) 14 on the ethical issues of HIV infection in the health care and social settings; and no. R (98) 7 concerning the ethical and organisational aspects of health care in prison. 100. Similar recommendations were made by the 1993 World Health Organisation in the Guidelines on HIV infection and AIDS in prisons: “27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners' rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations... 28. Isolation for limited periods may be required on medical grounds for HIV-infected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner's informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration.... 32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider...that this is warranted to ensure the safety and well-being of prisoners and staff...”
| 1
|
train
|
001-90866
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,008
|
DEURING v. AUSTRIA
| 4
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
The applicant, Mr Eduard Deuring, is an Austrian national living in Hörbranz (Austria). He was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was, at the relevant time, the owner of K. Deuring & Co, a company producing starch from corn and sugar. Due to ongoing ecological problems with effluents emitted by his company, he installed an in-house sewerage plant. On 30 June 1998 the Bregenz District Administrative Authority granted an operating permit. On 21 July 1999 it requested the applicant to comment on charges concerning non-compliance with environmental regulations as set out in the operating permit. On 31 August 1999 the applicant filed his comments. He submitted that the reason for temporarily exceeding environmental limits was the fact that the sewerage system was still in its early stages. As proof he requested that H.S., the Regional Governor (Landeshauptmann), H.G., a Member of the Regional Government (Landesrat), and B.G., the head of the competent Administrative Authority (Bezirkshauptmann) as well as D.D. and K.D. be summoned. On 22 November 2000 the Bregenz District Administrative Authority convicted the applicant under Section 366 (1) of the Trade Act (Gewerbeordnung) and issued a fine in the amount of 16, 500 Austrian schillings (ATS). It found him guilty of having repeatedly and continuously overstretched the capacity of the sewerage plant at issue, by exceeding the maximum admissible amount of inflow as set out in the operating permit. On 12 December 2000 the applicant lodged an appeal. Having held an oral hearing in which it had heard K. and S., two experts, the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat), on 11 May 2001, discontinued proceedings. It found that the pollution was due to technical problems which were outside the applicant's sphere. On 16 January 2002 the Vorarlberg Regional Governor lodged a complaint with the Administrative Court (Amtsbeschwerde). The applicant did not comment on the Governor's appeal. By a decision of 25 February 2004 the Administrative Court quashed the decision and remitted the case to the IAP. It found that the significant breach of the inflow limits constituted sufficient reason to believe that the actual deviation from the operating licence's limits was apt to constitute an environmental risk which the regulations under the Trade Act aimed to keep to a minimum. This was tantamount to an unlawful change to the operation of the plant. Following the Administrative Court's decision the applicant did not lodge another request for taking of evidence. Thereupon the IAP, on 17 May 2004, partially allowed the applicant's appeal. While, following the legal opinion of the Administrative Court, it upheld the applicant's conviction by the District Administrative Authority, it reduced the fine imposed on the applicant to 600 Euros (EUR) (ATS 8,256). As a reason for this reduction the IAP, referring explicitly to Article 6 of the Convention, found that the proceedings had lasted an unreasonably long time. On 7 July 2004 the applicant lodged a complaint with the Constitutional Court. By a decision of 19 November 2004 the Constitutional Court refused to deal with the case for lack of prospect of success and, upon the applicant's request, remitted the case to the Administrative Court. On 4 July 2005 the latter dismissed the applicant's complaint, the judgment being served on the applicant's counsel on 3 October 2005. Section 366 § 1 of the Trade Act, in so far as relevant, reads as follows: “The following constitutes an administrative criminal offence, subject to a maximum fine of EUR 3,600: (...) (3) Any change to an existing operation of a plant for which an operating permit had been granted or operation thereof.”
| 0
|
train
|
001-4973
|
ENG
|
AUT
|
ADMISSIBILITY
| 1,999
|
KANTNER v. AUSTRIA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is an Austrian national, born in 1955 and living in Bregenz. He is a tax consultant by profession. He is represented before the Court by Mr. W.L. Weh, a lawyer practising in Bregenz. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 January 1994 the applicant drove on the Inntal motorway in Tyrol from Innsbruck in the direction of the Arlberg. On 30 March 1994 the Landeck District Administrative Authority (Bezirkshauptmannschaft) issued a penal order (Straferkenntnis) against the applicant. It found the applicant guilty of having committed the following two speeding offences contrary to the Road Traffic Act (Straßenverkehrsordnung) on 30 January 1994 on the Inntal motorway: 1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 165 km/h, during the night at 22.55 hours at road kilometre 141,5 in the district of Schönwies. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic (Verordnung des Bundesministers für öffentliche Wirtschaft und Verkehr, Federal Gazette 527/1989). 2) The applicant had also exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 60 km/h at 22.57 hours at road kilometre 145,4 in the district of Zams. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act. The applicant was fined ATS 3000 and ATS 4000 respectively, with imprisonment of 3 days and 4 days in default. He did not appeal against the penal order and paid the fine imposed on him. On 11 August 1994 the Imst District Administrative Authority issued a penal order against the applicant which related to the following six offences of speeding committed on 30 January 1994 on the Inntal motorway: 1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.42 hours at road kilometre 112,0 in the district of Stams. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic. 2) The applicant had also exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.44 hours at road kilometre 117,5 in the district of Silz. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act. 3) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 150 km/h, during the night at 22.46 hours at road kilometre 123,5 in the district of Haiming. This act constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic. 4) The applicant had exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.47 hours at road kilometre 125,8 in the district of Rappen. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act. 5) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.53 hours at road kilometre 136,0 in the district of Mils. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic. 6) The applicant had exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 20 km/h at 22.54 hours at road kilometre 137,0 in the district of Mils. This act constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act. The applicant was fined ATS 3000, 2000, 2000, 2000, 3000 and 500 respectively, with imprisonment of 3 days, 2 days, 2 days, 2 days, 3 days and 12 hours in default. Thus, the fine imposed amounted to ATS 12.500 or 12 and 1/2 days’ imprisonment in default. On 14 September 1994 the applicant appealed. He submitted that he had already been fined for speeding on that day on the Inntal motorway by the Landeck District Administrative Authority and that it was unfair to impose further fines on him. On 19 December 1994 the Independent Administrative Panel for the Tyrol (Unabhängiger Verwaltungssenat) dismissed the applicant’s appeal. On 9 March 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof), in which he submitted that his conviction for eight offences of speeding in the course of one journey was an exaggerated formalism and inherently unfair. He submitted, in particular, that Section 22 of the Code of Administrative Offences (Verwaltungsstrafgesetz), which provided that in one penal order a penalty for each single offence be imposed, should be annulled (see “Relevant Domestic Law” below). On 13 June 1995 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. This decision was served on the applicant’s lawyer on 3 July 1995. The applicant did not lodge a complaint with the Administrative Court (Verwaltungsgerichthof). B. Relevant domestic law Section 52 sub-section A (10 a) of the Road Traffic Act (Straßenverkehrsordnung) prohibits driving in excess of the speed limit indicated on a road sign. Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic (Verordnung des Bundesministers für öffentliche Wirtschaft und Verkehr, Federal Gazette 527/1989) prohibits driving in excess of the maximum speed limit permitted on the Inntal motorway at night. This ordinance is based on the Road Traffic Act. Under section 99 (3) (a) of the Road Traffic Act, breaches of its provisions and its subsidiary ordinances are punishable with a fine of up to ATS 10.000, with imprisonment of up to two weeks in default of payment. Section 22 of the Code of Administrative Offences (Verwaltungsstrafgesetz), insofar as relevant, reads as follows: “(1) If somebody has committed several administrative offences by performing different acts or if one single act constitutes at the same time different offences which do not exclude each other, a penalty has to be imposed for every single offence.”
| 0
|
train
|
001-109197
|
ENG
|
UKR
|
CHAMBER
| 2,012
|
CASE OF TROSIN v. UKRAINE
| 3
|
Remainder inadmissible (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);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
|
5. The applicant was born in 1968 and is currently serving a life sentence in prison. 6. On 26 August 2004 the applicant was arrested on suspicion of murder. 7. On 28 August 2004 the Prymorskyy District Court of Odessa (“the District Court”) ordered the applicant to be placed in pre-trial detention for two months. The applicant was placed in the Odessa no. 21 Pre-Trial Detention Centre (“the Odessa SIZO”). 8. On 20 October and 17 November 2004 the District Court extended the applicant’s pre-trial detention to three and four months respectively. 9. On 24 December 2004 and 26 January 2005 the Odessa Regional Court of Appeal (“the Court of Appeal”) extended the applicant’s pre-trial detention to five and six months respectively. 10. The applicant was not present at those hearings and he was allegedly not given the investigator’s submissions so that he could prepare his objections. 11. According to the applicant, in the course of investigation he was illtreated, with the purpose of making him confess to the murder. 12. On 24 February 2005 the case was referred to the Court of Appeal for trial. 13. On 29 April 2005 the Court of Appeal, acting as a court of first instance, found, inter alia, that the applicant and two co-defendants had committed murder with particular cruelty and for financial gain. The court sentenced the applicant to life imprisonment. The judgment was based on various pieces of evidence including an acknowledgment of guilt by the applicant and other defendants during the trial. 14. After the hearing the applicant was handcuffed and escorted to the high security wing of the Odessa SIZO. 15. On 4 October 2005 the Supreme Court upheld the judgment of 29 April 2005, following which it was made final. For the period of consideration of the case by the Supreme Court the applicant was detained in Kyiv no. 13 Pre-Trial Detention Centre, where he was allegedly not provided with sufficient facilities, such as a table and chair, to prepare his defence. 16. Following the Supreme Court’s decision of 4 October 2005 the applicant repeatedly submitted applications to have his case reviewed on grounds of exceptional circumstances. He also asked the authorities to provide him with a lawyer to assist him with the preparation of these applications. All his applications were rejected as unsubstantiated; a lawyer was not provided because the criminal proceedings were already finished. 17. On several occasions the applicant requested copies of certain material from his criminal case file. The requests were granted, but with delays. 18. In 2008 the applicant instituted three separate sets of court proceedings against, respectively, the judge who had presided over his criminal case before the first-instance court, the Supreme Court chamber on criminal cases, and the General Prosecutor, claiming that he had been unfairly convicted and that his applications for review of his case on grounds of exceptional circumstances had been arbitrarily rejected. All these proceedings are pending. 19. According to the applicant, he was not allowed family visits during his pre-trial detention. 20. During his post-conviction detention until 16 February 2010 the applicant was allowed to see his relatives no more than once every six months. Subsequently, he was granted family visits once every three months. 21. The visits lasted no longer than four hours. No more than three adult visitors could be present at once. The applicant maintains relations with his wife, mother, adult brother, and his son born in 1992. 22. In February 2010, upon arrival for the visit, one of his four relatives was not admitted to see the applicant because of the limitation on the maximum number of adults per visit. Since then, one person out of the four has had to be excluded when planning a visit to the applicant. 23. During the meetings the applicant communicated with the visitors via glass partition. The applicant’s conversations with the visitors were listened to by a prison officer. 24. On 1 February 2006 the applicant sent a letter to the Court, the first page of which had been stamped by the detention facility. 25. Up to October 2006 the applicant’s letters to the Court were accompanied by covering letters from the detention facility briefly stating the nature of the applicant’s submissions. 26. In accordance with Articles 110 and 151 of the Code, short visits from relatives and other persons may last no longer than four hours. Such meetings must be held in the presence of a prison officer. Until the amendment of 21 January 2010 (which came into effect on 16 February 2010), life prisoners were entitled to short visits from their relatives and other persons once every six months. Since that amendment, life prisoners have been entitled to such visits once every three months. 27. Article 113 of the Code, following amendments made to it on 1 December 2005, stipulated that prisoners’ correspondence was to be subject to automatic monitoring by the prison staff except for proposals, applications and complaints addressed to the National Ombudsman, the European Court of Human Rights, other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations, or prosecution authorities. 28. The relevant provisions of the Code read as follows: “1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ... 2. Any decisions, actions or inaction on the part of public authorities may be appealed against to administrative courts, except for cases in which the Constitution and laws of Ukraine provide for a different procedure of judicial appeal against such decisions, actions or inactivity ... 3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken: ... 6) reasonably; ... 8) proportionately, in particular, by ensuring a necessary balance between any possible unfavourable outcome for an individual’s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve; ...” “1. When considering a case, a court shall be governed by the principle of the rule of law, which provides, in particular, that a human being and his or her rights and freedoms shall be the highest social value and shall determine the essence and orientation of the activity of the State. 2. A court shall apply the principle of the rule of law by taking into account the caselaw of the European Court of Human Rights. ...” “1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities and [legal relationships arising] in the course of the public formation of a ... public authority by way of an election or referendum. 2. The jurisdiction of the administrative courts shall cover public-law disputes, in particular: 1) disputes between physical persons or legal entities and ... public authorities concerning the decisions of the latter (normative legal acts or legal acts of individual effect), or their actions or inactivity; ...” 29. In accordance with paragraph 47 of the above-mentioned rules, prisoners are entitled to visits from no more than three adults at once, who may also be accompanied by the prisoner’s under-age children. Annex 17 of the Prison Rules provides for two options of equipping a room for short meetings between prisoners and visitors. According to the first option the meeting room is to be equipped with tables along the room separated by free space of 120 centimetres in width. The chairs for visitors are not to exceed ten items; stools for the prisoners are to be fixed to the floor. According to the second option, a meeting room is to be equipped with booths 80 centimetres in width and 100 centimetres in length. One or two booths are to be of 140 centimetres to accommodate two visitors or visitors with children coming to see the same prisoner. The visitors’ booths and the prisoners’ booths are to be separated by glass partitions. The booths are to be equipped with a loudspeaker and a telephone handset. The table of the supervising officer is to be equipped with a device for listening to the conversations in the booths. On 31 December 2003 the Ministry of Justice, having reviewed the lawfulness of the Prison Rules, included them in the unified register of normative legal acts. 30. The relevant extract from the Recommendation read as follows: “Part II Conditions of imprisonment Contact with the outside world 24.1. Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. 24.3. National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted. 24.4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. 24.5. Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ” 31. The relevant extract from the Report read as follows: “33. In many European countries the number of life-sentenced and other long-term prisoners is on the increase. During some of its visits, the CPT has found that the situation of such prisoners left much to be desired in terms of material conditions, activities and possibilities for human contact. Further, many such prisoners were subject to special restrictions likely to exacerbate the deleterious effects inherent in long-term imprisonment; examples of such restrictions are permanent separation from the rest of the prison population, handcuffing whenever the prisoner is taken out of his cell, prohibition of communication with other prisoners, and limited visit entitlements. The CPT can see no justification for indiscriminately applying restrictions to all prisoners subject to a specific type of sentence, without giving due consideration to the individual risk they may (or may not) present. Long-term imprisonment can have a number of desocialising effects upon inmates. In addition to becoming institutionalised, long-term prisoners may experience a range of psychological problems (including loss of self-esteem and impairment of social skills) and have a tendency to become increasingly detached from society; to which almost all of them will eventually return. In the view of the CPT, the regimes which are offered to prisoners serving long sentences should seek to compensate for these effects in a positive and proactive way. The prisoners concerned should have access to a wide range of purposeful activities of a varied nature (work, preferably with vocational value; education; sport; recreation/association). Moreover, they should be able to exercise a degree of choice over the manner in which their time is spent, thus fostering a sense of autonomy and personal responsibility. Additional steps should be taken to lend meaning to their period of imprisonment; in particular, the provision of individualised custody plans and appropriate psycho-social support are important elements in assisting such prisoners to come to terms with their period of incarceration and, when the time comes, to prepare for release. Further, the negative effects of institutionalisation upon prisoners serving long sentences will be less pronounced, and they will be better equipped for release, if they are able effectively to maintain contact with the outside world.”
| 1
|
train
|
001-72315
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,006
|
BELLO v. SWEDEN
| 4
|
Inadmissible
| null |
The applicant, Ms Aminatu Bello, is a Nigerian national who was born in 1984. She was represented before the Court by Ms Ylva Orrenius, a lawyer practising in Linköping. The respondent Government were represented by Ms Anita Linder, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant arrived in Sweden on 20 July 2003 and applied for asylum. At an initial interview conducted by the Migration Board (Migrationsverket) on 21 July 2003, the applicant stated, inter alia, that she had been born in Oyo State, in the south-west of Nigeria, and had gone to school and always lived in Ibadan in that state. She belonged to the ethnic group Lafia and was a Muslim. She submitted a certificate of registration of birth dated 18 March 2000 and a copy of an article published in the newspaper the Nigerian Observer on 7 May 2003. The article, entitled “A Pregnant Teenager Muslim Girl Elopes To Europe?”, stated the following: “A young 19 year old, Aminatu Bello of Nassarawa State in the Northern part of Nigeria is reported to be on the run, having fled from one 60 year old, Tijani Yesufu whom she was engaged to. Feeling that she did not like the man she was betrothed to, young Aminatu Bello is alleged to have become pregnant by her younger lover, a discovery that she has not found to be comfortable with in her Muslim Community. By the Sharia laws, being pregnant by another man while being engaged is regarded as adulterous and the penalty would mean condemnation to death. The matter has been reported to the head of her village in Katsina-Ala and the Muslim clerics have declared Aminatu Bello wanted. A search to the hometown of her lover in Oyo State, in the Western part of the country has proved abortive so far since the event came to light some three months ago. Fears are expressed that Miss Aminatu Bello may have eloped outside the country with her lover but that cannot be confirmed as at the time of filing this report.” Below the article was a picture allegedly depicting the applicant. At the interview, the applicant stated that she had last been in contact with her boyfriend “...when [she] had this problem, in February this year. In March and April [she] was still in contact with him, but now [she] no longer had any contact with him. ... [She] saw him last in May”. She further stated that she had not wanted to get married to the 60-year-old man suggested by her father, and she had told her father that she already had a boyfriend. She was however married against her will. After a while she discovered that she was pregnant. She told her father who got very angry. Later, her father showed her the newspaper article and told her that she had to escape to save her life. Her boyfriend had contacted and paid a business woman who had helped her to leave Nigeria. A second interview was held with the applicant on 2 September 2003. The applicant then stated that she lived in Ala-Ladfin in Nassarawa State, in central Nigeria. She had been married for four months. When her husband had learned about her pregnancy he had beaten her severely, after which she had left to stay with her aunt. She was at her aunt’s for about two weeks until her aunt arranged for her journey to Sweden. She had seen in the newspaper that she was wanted by the village chief and that she was to be stoned to death. She did not know exactly how long she had been pregnant but she believed that it had been about eleven weeks. On 8 October 2003 the Migration Board rejected the applicant’s application for asylum. It remarked that, according to the newspaper article submitted by the applicant, the incidents had taken place in March 2003, whereas the applicant had stated that she got married in March 2003 and that the incidents leading to her leaving the country had occurred four months after the marriage. The Board found that, irrespective of the truthfulness of her story, the applicant had not made a sufficiently probable case that she would not receive any protection or help from the Nigerian authorities. Protection from criminal actions and assault was a matter for the domestic authorities, and it appeared that the applicant had not reported the incidents to the police. The Board concluded that the applicant had not been able to show that, upon return to Nigeria, she would be treated in a manner which would entitle her to refugee status or protection. It further concluded that, having regard to the very restrictive practice concerning the grant of a residence permit on humanitarian grounds, the facts in the instant case were not sufficient to warrant such a permit. On 4 February 2004 the applicant gave birth to a son. The applicant appealed to the Aliens Appeals Board (Utlännings-nämnden). The Migration Board also referred to the Appeals Board the applicant’s request for a residence permit concerning her son. In the appeal, the applicant’s representative stated that the applicant had been beaten by her husband when he found out about her infidelity and, on 9 April 2003, she had escaped to her aunt’s home. According to the representative, the applicant had been sentenced to death by the council in her husband’s village. In a subsequent letter to the Appeals Board, the representative stated, in relation to the comments of the Migration Board regarding the dates mentioned in the article and those given by the applicant herself, that the applicant was a very young, inexperienced girl who had a great respect for authority and had not been fully aware of the length of a pregnancy. However, she was certain that she had been married in March 2003 and had become pregnant in April 2003. On 30 August 2004 the Aliens Appeals Board rejected the applicant’s appeal and the application concerning her son. It concluded that the applicant’s identity was unclear and that the time frames given by her were not compatible with the information in the Nigerian newspaper article. The time indicated for the “event” in the article was also inaccurate in relation to the time of birth of her baby. Due to the above, and considering the applicant’s case as a whole, the Appeals Board found that she had not shown that she was to be regarded as a refugee or as a person otherwise in need of protection. Nor did it find any humanitarian grounds to warrant a residence permit.
| 0
|
train
|
001-71467
|
ENG
|
HUN
|
CHAMBER
| 2,005
|
CASE OF KORGA v. HUNGARY
| 4
|
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
| null |
4. The applicant was born in 1952 and lives in Budapest. 5. On 20 February 1995 the applicant’s wife filed for divorce. She also requested the division of the matrimonial property and the settlement of the use of the couple’s flat. 6. After five hearings, on 26 June 1996 the court gave a partial decision and pronounced the parties’ divorce. The proceedings concerning the matrimonial property continued. 7. Meanwhile, on 13 June 1995 the applicant brought an action before the same court, challenging the validity of a contract by which his ex-wife had meanwhile sold their common flat. 8. After five hearings, on 16 January 1997 these proceedings were joined to the dispute concerning the division of the matrimonial property. 9. After another two hearings, on 16 July 1997 a valuation expert was appointed. 10. Following four further hearings, on 26 June 1998 the District Court gave a partial decision. It established the parties’ respective shares of the ownership of the flat, annulled the above-mentioned contract and suspended the examination of the remainder of the case (i.e. the distribution of movable property) until the partial decision became final. 11. After a hearing on 20 January 1999, on 21 April 1999 the Budapest Regional Court confirmed the partial decision. 12. In review proceedings, on 8 May 2001 the Supreme Court quashed the partial decision while upholding, again as a partial decision, the establishment of the parties’ respective shares of the ownership of the flat. However, it did not annul the disputed contract. 13. Subsequently, on 14 March 2002 the District Court resumed the proceedings. After a hearing on 2 July 2002, on 4 December 2002 it divided the matrimonial property.
| 1
|
train
|
001-61731
|
ENG
|
ESP
|
CHAMBER
| 2,004
|
CASE OF GORRAIZ LIZARRAGA AND OTHERS v. SPAIN
| 1
|
Preliminary objections rejected (victim, non-exhaustion of domestic remedies);No violation of Art. 6-1 as regard the equality of arms;No violation of Art. 6-1 as regard the right to a fair hearing;Not necessary to examine Art. 8 and P1-1
|
Nicolas Bratza
|
8. The first five applicants are individual Spanish nationals who live in Itoiz (Navarre province). The third applicant is also the chairperson and legal representative of the sixth applicant, the Coordinadora de Itoiz association. The first, second, fourth and fifth applicants are members of this association. 9. The case originated in an engineering project of February 1989 for the construction of a dam in Itoiz (Navarre province) which would result in the flooding of three nature reserves and a number of small villages, including Itoiz, where the applicants live. According to the Government, the total number of landowners affected by the dam's construction is 159, thirteen of whom live in Itoiz itself. 10. On 6 May 1988 the Coordinadora de Itoiz association was set up; its articles of association state, inter alia, that its aim is “to coordinate its members' efforts to oppose construction of the Itoiz dam and to campaign for an alternative way of life on the site, to represent and defend the area affected by the dam and this area's interests before all official bodies at all levels, whether local, provincial, State or international, and to promote public awareness of the impact of the dam”. By a ministerial decree of 2 November 1990, the Ministry of Public Works adopted the Itoiz dam project. 11. In 1991 the villages concerned by the dam and the applicant association brought an administrative appeal before the Audiencia Nacional against the ministerial decree of 2 November 1990. The appeal was based on several allegations of unlawfulness which, in their opinion, had tainted the procedure for informing the public about the proposed dam, the fact that the project had been adopted without the prior approval of the hydrological plans for each river basin or of the national hydrological plan and the lack of any public or social interest served by the project. They also claimed that the project breached the legislation on environmental protection, since no environmental impact study had been commissioned. Finally, the court's attention was drawn to the project's impact on the nature reserves and habitat within the relevant area in the light of the Council of Europe's recommendations on engineering works in the Pyrenees and the European Union's common agricultural policy. 12. In a judgment of 29 September 1995, the Audiencia Nacional partly upheld the appeal, considering in particular that, according to the law, the planned dam should have been based on the national hydrological plan, which had not been drawn up when the project was approved. The court also accepted the request for precise designation of the protection zones around the nature reserves affected by the dam and for a breakdown of the quarry use that would be necessary for its construction. 13. The applicant association applied for immediate enforcement of the judgment and, in particular, for suspension of construction work on the dam. By a decision of 24 January 1996, the Audiencia Nacional granted a suspension order but directed that the necessary measures be taken to ensure the completion of work already begun and for the maintenance and safety of the work already completed, subject to the payment of security by the applicant association. 14. All the parties to the proceedings lodged súplica appeals against the decision of 24 January 1996. In the context of the interim enforcement of its judgment of 29 September 1995 and, in particular, with a view to maintaining the protection zones around the three nature reserves affected by the project, the Audiencia Nacional, by a decision of 6 March 1996, prohibited the filling of the reservoir and displacement of the population concerned. 15. On 17 June 1996 the parliament of the Autonomous Community of Navarre (parlamento foral de Navarra) passed Autonomous Community Law (foral) no. 9/1996 on natural sites in Navarre (“the Autonomous Community law of 1996). This law amended Autonomous Community Law no. 6/1987 of 10 April 1987, particularly with regard to the possibility of reclassifying the protection zones or carrying out activities within them for the purpose of introducing infrastructure that had been declared in the general or public interest. According to the applicants, this Law enabled construction work on the dam to continue, with the consequent deterioration of the protected natural site. In application of the Autonomous Community law of 1996, the Autonomous Community's government adopted Decree no. 307/1996 of 2 September 1996, which identified the peripheral protection zones for certain nature reserves and strict nature reserves in Navarre. 16. In the meantime, Counsel for the State and the government of the Autonomous Community of Navarre had appealed on points of law against the Audiencia Nacional's judgment of 29 September 1995. In a judgment of 14 July 1997, the Supreme Court definitively cancelled the dam project in so far as it concerned the 500-metre protection zones around nature reserves RN 9, 10 and 11. As a result of the judgment, the size of the planned dam, and thus of the area to be flooded, was reduced, so that the village of Itoiz, where the applicants' immovable property was located, was saved from flooding. 17. In application of the Supreme Court's judgment, by a decision of 4 September 1997, the Audiencia Nacional declared final the interim enforcement measures ordered on 6 March 1996 concerning the prohibition on filling the reservoir and other related work. Before ruling on the question of the possible suspension of construction work on a dyke, the Audiencia Nacional invited the parties to appear before it so that they could submit observations on the consequences of the new Autonomous Community law of 1996, particularly with regard to the protection zones around all the nature reserves provided for in that law, and on the impact of the maximum flood levels on the protection zones of the reserves to which the cancelled project had referred. 18. The central State authorities and the Navarre Autonomous Community's government argued before the Audiencia Nacional that it had become legally impossible to enforce the Supreme Court's judgment of 14 July 1997, in so far as the Autonomous Community law of 1996 had removed protection-zone status from the area within the nature reserves that was due be flooded. Accordingly, taking that legislative amendment into account, it had become possible to carry out the public-works schemes planned within those protection zones. 19. The applicant association contested the authorities' argument, claiming that the Autonomous Community law of 1996 was inapplicable in the instant case, since it had been enacted following the administrative decisions in the proceedings in issue and subsequent to the Audiencia Nacional's judgment and the two interim enforcement orders. In the alternative, the applicant association requested that certain provisions in the Autonomous Community law be referred to the Constitutional Court for a preliminary ruling on their constitutionality, particularly those authorising the removal of protection-zone status from the three nature reserves in the area to be flooded, which, in the applicant association's submission, would allow the work to be completed and make the reservoir cover the area specified in the original plans. 20. By a decision of 1 December 1997, the Audiencia Nacional asked the Constitutional Court to rule on the preliminary question submitted by the applicant association. By a decision of 21 May 1998, the Constitutional Court declared the application inadmissible on account of certain errors in its presentation which could nonetheless be corrected. 21. In order to rectify the above-mentioned errors, the Audiencia Nacional summoned the parties on 28 May 1998 so that it could hear their submissions on certain aspects of the Autonomous Community law whose constitutionality had been challenged before the Constitutional Court, and on the constitutionality of section 18(3) (A.1.) and (B) of that law. The applicant association submitted its observations on 10 June 1998. By a decision of 17 June 1998, the Audiencia Nacional again asked the Constitutional Court to rule on the preliminary question as to constitutionality and extended the question to include a new point raised by the applicant association, namely section 18(3) (B) (B.1.) of the Autonomous Community law. 22. By a decision of 21 July 1998, the Constitutional Court declared the issues raised in the preliminary question admissible. Under section 37(2) of the Judicature Act, it gave notice of the questions to the Chamber of Deputies, the Senate, the government and parliament of Navarre and the Spanish government, and invited them to file their observations within fifteen days. The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General's observations were submitted on 29 September 1998. The Speaker of the Chamber of Deputies indicated that the Chamber would present no observations. The Speaker of the Senate asked that the Senate be considered a party to the proceedings and offered its assistance. On 1 March 2000 the Audiencia Nacional forwarded to the Constitutional Court the written pleadings submitted by the applicant association during the proceedings before it. These pleadings, dated 29 September 1997, 10 June 1998 and 28 February 2000, were formally included in the case file at the Constitutional Court. 23. In a judgment of 14 March 2000, the Constitutional Court, sitting as a full court, held that the impugned provisions of the Autonomous Community law of 1996 were compatible with the Constitution. It observed at the outset that enforcement of the Supreme Court's judgment of 14 July 1997, delivered in accordance with Navarre Autonomous Community Law no. 6/1987, had become impossible since the entry into force of the Autonomous Community law of 1996, in that the cancelled project complied with the new law. 24. Examining the purpose of the Autonomous Community law of 1996, the Constitutional Court held as follows: “... Its purpose is to establish a general system for environmental protection of the natural sites in the Autonomous Community of Navarre. Accordingly, this protection system [was] applicable ... to the nature reserves already identified in the previous Autonomous Community law, even though the essential difference between the legal rules established by those two laws lies in the arrangements regarding the peripheral protection zones.” 25. The Constitutional Court held, firstly, that this was not to be seen as a legislative solution for the particular problem of the three peripheral zones around the three nature reserves affected by construction of the Itoiz dam and, secondly, that statements and parliamentary initiatives by certain politicians which, in the opinion of the Audiencia Nacional, demonstrated that the main aim of the Autonomous Community law of 1996 was to prevent execution of the Supreme Court's judgment, were immaterial in assessing whether there had been a violation of the principle of lawfulness. The Constitutional Court also ruled that, given the significance of the question raised by the Itoiz dam's construction, which could not simply be ignored, it was justifiable that the explanatory memorandum accompanying the Autonomous Community law of 1996 specifically mentioned the aim and means of environmental protection in the peripheral protection zones around the three above-mentioned nature reserves. 26. As to the alleged infringement of the right to a fair hearing, in so far as the Autonomous Community law of 1996 now prevented execution of the Supreme Court's judgment partly cancelling the Itoiz dam project, the Constitutional Court considered that the fact that in the meantime a new law had been passed amending the legal system applicable to the peripheral protection zones and replacing the previous law on the basis of which the project had been declared partly void was not in itself incompatible with the right to execution of judicial decisions as enshrined in Article 24 of the Constitution. 27. Referring to the case-law of the European Court of Human Rights and, in particular, to the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and Papageorgiou v. Greece (22 October 1997, Reports of Judgments and Decisions 1997-VI), the Constitutional Court examined whether the impossibility of executing the Supreme Court's judgment as a consequence of the enactment of the Autonomous Community law of 1996 was justified in view of the values and assets protected by the Constitution. Having held that environmental protection was enshrined in the Constitution, the Constitutional Court examined whether the prejudice arising from the failure to execute the judgment in issue was proportionate to the protected or disputed interests or was on the other hand purposeless, excessive or the cause of a clear imbalance between the interests at stake. It found that both the Supreme Court's judgment of 14 July 1997 and the new Autonomous Community law of 1996 were intended to guarantee the existence of a peripheral protection zone around the three nature reserves affected by the dam's construction. The Constitutional Court further noted that the system of peripheral protection zones introduced by this new law had not in itself been considered arbitrary in the Audiencia Nacional's decision; nor had the zones' new boundaries been held responsible for the serious deterioration of the environment. Accordingly, it held that the balance of general interests had been respected and that there was no clear lack of proportion between the conflicting interests. Consequently, the impugned provisions could not be held to be contrary to Article 24 § 1 of the Constitution. 28. As to the argument that the new legal rules governing the peripheral protection zones around the nature reserves appeared in a law rather than in regulations, as had previously been the case, and that this deprived the applicants of the possibility of overseeing the administration's actions through an administrative appeal or enforcement proceedings, the Constitutional Court noted that there was no legal provision requiring that certain subjects be dealt with by regulations. It added that the new law did not amount to ad causam legislation, being general in form and in substance, and pointed out that laws could be challenged before the Constitutional Court through the remedy provided for in Article 163 of the Constitution. Accordingly, the Constitutional Court dismissed the application for a preliminary ruling. The judgment was published in the Official Gazette on 14 April 2000. 29. The relevant provisions of the Constitution read as follows: “The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear: (a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...; (b) individual appeals for protection [recurso de amparo] against violation of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law; (c) disputes between the State and an Autonomous Community or between different Autonomous Communities over the scope of their powers. ... “If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.” “1. Judgments of the Constitutional Court shall be published in the State's Official Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone. 2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.” 30. The relevant provisions of this law read as follows: “1. When judges or courts, of their own motion or at the request of a party, consider that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, they shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law. 2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. They must specify which law or provision having the status of law is alleged to be unconstitutional and which Article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel's Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his or her decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment has become final.” “A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.” “1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the question referred inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the question referred is manifestly ill-founded. 2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective Speakers), the Attorney General and the Government (through the Ministry of Justice) of the question referred. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities of that Community shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the Constitutional Court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.” 31. The explanatory memorandum to the Autonomous Community law of 1996 states that the text has two objectives: first of all, it establishes a legal system specific to Navarre in order to safeguard, preserve and improve those parts of its territory which contain natural assets worthy of protection in accordance with Spanish legislation and European Union directives on environmental protection; secondly, the law is intended to harmonise the legislation on natural sites enacted by the Autonomous Community of Navarre. In particular, the law lists the nature reserves and natural sites in Navarre which are protected by law and establishes their boundaries. It also sets out, for each type of protected site, the types of activity and use which are authorised or prohibited. Section 18 reads as follows: 1. Through an autonomous law, the parliament of Navarre may identify the boundaries of ... peripheral protection zones around the Strict Nature Reserves and Nature Reserves, which may be discontinuous and shall be intended to avoid external impact on the environment or landscape. ... 3. The regulations governing activities and land use within the peripheral protection zones of the Strict Nature Reserves, Nature Reserves and Nature Parks shall be as follows: (A) Non-construction activities (A.1.) The following may be authorised: ... – Activities related to the creation of infrastructure which is in the public or general interest. ... (B.) Construction activities (B.1.) The following may be authorised: ... – Infrastructure declared to be in the public or general interest. ...”
| 0
|
train
|
001-105777
|
ENG
|
DEU
|
CHAMBER
| 2,011
|
CASE OF HEINISCH v. GERMANY
| 1
|
Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
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6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed. 7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund (Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff. 8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking. 9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place. 10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer. 11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care (ausreichende hygienische Grundversorgung) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond. 12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical. 13. On 22 November 2004 the management rejected the applicant’s accusations. 14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage: “The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.” 15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards. 16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law and practice” below). 17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05). 18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows: “Vivantes wants to intimidate colleagues!! Not with us! Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens Call for the foundation of a non-party solidarity group” The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows: “Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...” 19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint. 20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal. 21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet. 22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers. 23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request. 24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005. 25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly. 26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure. 27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court (Arbeitsgericht) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code (Bürgerliches Gesetzbuch) or section 1(1) of the Unfair Dismissal Act (Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home. 28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal (Landesarbeitsgericht), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer. 29. On 6 June 2007 the Federal Labour Court (Bundesarbeitsgericht) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law. 30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication. 31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results. 32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” (wichtiger Grund). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract. 33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise. 34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information. 35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. 36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings: “(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.” 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010). 38. Article 24 of the Revised European Social Charter reads as follows: “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ... a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ... The Appendix to Article 24 specifies : “3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ... c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...” Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter. 39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates: “The following, inter alia, shall not constitute valid reasons for termination: ... (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”. Germany has not ratified ILO Convention No. 158. 40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption.
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train
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001-113741
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ENG
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GEO
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CHAMBER
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CASE OF MIKIASHVILI v. GEORGIA
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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);No 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);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
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5. The applicant was born in Tbilisi in 1984. According to the relevant police reports, the applicant was slightly inebriated when he was arrested on 29 October 2005 and had physically resisted police officers. As a result, he had sustained slightly swollen lips and a small bruise on his forehead. 6. Following his arrest the applicant underwent an external visual examination upon his being taken to the temporary detention centre. A report drawn up thereafter by a doctor on duty recorded a large bruise on the left part of the applicant’s forehead, a large bruise on the right temple, a large bruise near the left eye and cheekbone, a bruise and evidence of an injury that had bled on his lips, and large bruises on his neck and all over his back (the report of 29 October 2005). 7. On 30 October 2005, the applicant was charged with the offence of resisting police officers with the intention of obstructing them in the course of their duties, committed as part of a group in a premeditated manner (Article 353 § 2 of the Criminal Code of Georgia). According to the decision to bring charges, two police officers, N.J. and G.A., had seen a young man running down the street at around 2:15 a.m. with a mobile phone in his hand, being “chased” by two women (who turned out to be his wife and a friend). Before the young man could get into a car parked at the end of the road, the two police officers had stopped and questioned him to find out why he was running and to whom the mobile phone belonged. At that point the applicant had got out of the car and, together with another young man, B., his friend, had begun to verbally and physically attack the police officers. The police had been unable to calm them down and the applicant and his friend had torn the police officers’ shirts and jumpers during the struggle. The police had called for backup and, after several colleagues had arrived as reinforcements, had managed to arrest the offenders. Once placed in custody in a temporary detention centre, the offenders had continued to verbally and physically attack the police. In particular, the applicant had delivered a punch to the left eye of a police officer, A.Ts., who had accompanied him to the investigation room to take care of some procedural matters. 8. According to three medical reports concerning the examination of the three police officers who had allegedly been attacked by the applicant and his friend B., A.Ts. had a closed head injury and a bruise on his left eye, G.A. had a closed head injury and a graze on his right knee, and N.J had a superficial lesion on his lips and cheek. All three police officers were discharged from the hospital on the same day. 9. On 30 October 2005 the investigator, with the consent of the supervising prosecutor, sought an order from the Tbilisi City Court that the applicant be remanded in custody pending trial. The reasons given for the request were the risks that the applicant might abscond and that he might impede the investigation. 10. On 31 October 2005 the Tbilisi City Court, refusing the applicant’s application for a non-custodial measure, ordered his pre-trial detention for three months. Having reviewed the criminal case materials and heard the parties’ oral pleadings, the court confirmed the existence of a reasonable suspicion that the offence had been committed. The imposition of pretrial detention was found to be further justified by the assumption that if the applicant was freed he might influence the eyewitnesses, which would prevent the truth of the matter from being established. Moreover, because of the severity of the penalty for such a serious crime, the applicant might evade trial. 11. Photographs of the applicant taken at the hearing on 31 October 2005 showed bruising around his eyes and an injury to the left hand side of his forehead. On the same date he was transferred to Tbilisi no.1 Prison, where following his external inspection by a doctor on duty, a medical certificate was drawn up reporting an injury to the left hand side of the applicant’s forehead (medical certificate of 31 October 2005). According to the certificate, the injury – which the applicant claimed to have sustained before his arrest – was healing. 12. On 2 November 2005 the investigator responsible for the case rejected the defence’s application to have a medical examination carried out. According to the investigator, it had not been established that the applicant had been injured during his arrest, as the medical certificate issued by the doctor in Tbilisi no. 1 Prison showed that the injury had predated his arrest. Moreover, the investigator considered that, had the applicant been injured during his arrest, he would have raised the complaint at the hearing of 31 October 2005. 13. On the same date, 2 November 2005, the applicant appealed against the detention order, claiming, inter alia, that the assumptions that he would abscond from the trial and influence the investigation were wholly unsubstantiated. 14. On 7 November 2005, whilst holding an oral hearing, the Tbilisi Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal, concluding that his remand in custody was necessary in view of the seriousness of the crime and the facts and arguments contained in the court decision of 31 October 2005. With regard to the defence’s complaint that the authorities had refused to allow the applicant to undergo a medical examination, the Court of Appeal noted that the defence had never requested such an examination under Article 73 § 1 (g) of the Code of Criminal Procedure (“the CCP”). 15. On 9 November 2005 the applicant appealed against the refusal to allow a medical examination, complaining that the investigator had been acting as a medical expert in determining when he might have received the various injuries. In his opinion, the refusal to allow a medical examination had amounted to a violation of his rights under Article 73 § 1 (g) of the CCP. 16. On 28 December 2005 a judge ordered the investigating authorities to have the applicant examined by a medical expert. The examination was carried out between 5 January and 1 February 2006. The medical expert had a copy of the medical report of 29 October 2005. In addition he himself noticed a scar measuring 1 cm by 1 cm on the right temple, corresponding to an injury classified as slight, and caused by a hard blunt object. The expert concluded that all the applicant’s injuries could possibly date back to the day of the arrest, as the applicant was contending. 17. On 25 January 2006, the applicant’s detention had been extended by a month. This decision had been upheld on 29 January 2006 by the Court of Appeal which, in a separate decision, drew the investigator’s attention to the fact that no investigative actions had been taken for a month and that the proceedings had therefore been prolonged without reason. 18. On 21 June 2006 the applicant was allegedly again beaten, this incident occurring on the premises of the court of first instance, before which he had been brought for trial. 19. On 22 June 2006 the applicant was convicted of having committed the offence defined in Article 353 § 2 of the Criminal Code and sentenced to one year and six months’ imprisonment. Before the court, N.J. confirmed that he had been hit by the applicant while the other young man had insulted him. Around fifteen people had come out of a nearby bar to back up the young men and insult the police officers. It had therefore been difficult to arrest the offenders and the officers had had to call for backup. Once the two men had been arrested, N.J. and his colleague G.A. had gone to the hospital to be treated. Their clothes had been torn. According to N.J., the applicant had had blood on his lip and the possibility that he had sustained other injuries to his body could not be excluded. 20. G.A. claimed that he had been hit by both young men and that the applicant had already had an injury to his face prior to the arrest. 21. A.Ts. submitted that he had arrived at the scene when the arrest operation was almost over and had seen that the two young men had been taken to the temporary detention centre. He had encountered the applicant in the investigation room, where the latter had punched him in the eye. A.Ts. stated that he had not physically attacked the applicant. 22. The applicant’s friend who, according to the police officers, had been running down the street with a mobile phone, stated that he had been drunk, had felt unwell and had been walking quickly down the street, followed by his wife and a friend. When the police had stopped him to find out who the telephone belonged to, he had handed the phone to his wife and had run into the bushes because he had felt sick. On his return, he had seen that the two women were screaming and that the police were trying to hit the applicant and another of his friends, B. He had helped the applicant, who had been on the ground, to get up. He claimed that the police officers’ clothes had not been ripped and that his two friends had not had any visible injuries on their bodies before being arrested. 23. Two other policemen who had arrived as backup stated in evidence that they had seen the two young men beating G.A., who had fallen to the ground. The offenders had been swearing and refusing to get into the police car. 24. The applicant lodged an appeal against conviction, complaining that the court had agreed with the police officers’ contention that they had been beaten, without examining his complaint that he had been mistreated by those same police officers during his arrest, as well as later on in the police station. He also alleged that during his arrest he had fallen to the ground and had been kicked in the head, stomach and back. His friend had helped him up. He alleged that in the temporary detention centre a glass had been smashed over his head and the police had beaten him violently. During the following two weeks he had not slept, had suffered from headaches and had been behaving strangely. The applicant further complained that the first-instance court had ignored the medical report which had proved that he had been beaten. Requiring medical care as a result of the treatment he had endured, the applicant submitted that he had been the victim of a violation of Article 3 of the Convention and requested that the Court of Appeal attribute the same importance to that aspect of the case as to the other facts. 25. On 12 April 2007 the Court of Appeal held that, in the light of the facts established by the first-instance court, it could not be found that the applicant had been subjected to ill-treatment at the hands of the police. The first-instance judgment was upheld. 26. On 14 December 2007 an appeal on points of law lodged by the applicant, in which he reiterated his complaint under Article 3 of the Convention, was declared inadmissible by the Supreme Court of Georgia. This decision was served on the applicant on 19 December 2007. 27. According to medical certificates issued by different psychiatric clinics in Tbilisi, they had never treated the applicant before his arrest. 28. Shortly after his arrest, on 11 November 2005 the applicant had to be placed in the psychiatric ward of the prison hospital because of his psychiatric instability. On 14 November 2005 he was examined by experts from the Empathy Rehabilitation Centre for Victims of Torture (“Empathy Centre”). The preliminary results of the examination showed that the applicant was suffering from a head injury and concussion and was delirious. The experts also noted, on the basis of the applicant’s account, that the latter had suffered from head injuries several times in the past and that he had had a history of aggressive behaviour related to inebriation. The experts recommended that he undergo an in-patient psychiatric examination and a tomography scan of his brain and that he receive treatment with drugs and appropriate medical supervision. 29. On 26 December 2005 the applicant’s lawyer lodged a request with the Tbilisi City Prosecutor for a psychiatric examination of his client to be carried out in order to determine whether he required to be admitted to a specialised institution, whether his condition was a result of the way he had been treated during his arrest and whether he could be held accountable for his actions at the time of the offence of which he was accused. 30. On 6 February 2006 the Tbilisi Public Prosecutor’s Office ordered an out-patient psychiatric examination, which resulted in a medical report of 27 March 2006. According to the report, the applicant was not suffering from any chronic psychiatric illness, temporary psychological disorder, or mental illness. He was suffering from mild depression and was responsible for his actions. 31. On 30 March and 19 April 2006 the director of the Empathy Centre approached the prison authorities, drawing their attention to the applicant’s psychiatric problems and the suicidal tendencies which his sister and the chaplain had reported to her. She requested that the applicant be kept in the prison hospital in order to receive appropriate treatment and to undergo an in-patient psychiatric examination. 32. The case file shows that the applicant was kept in the psychiatric ward of the prison hospital until 22 April 2006. Between 22 April and 27 May 2006, he remained in the same institution, but on a different ward. On the latter date he was sent to Tbilisi no. 5 Prison, and was once again admitted to the psychiatric ward of the prison hospital on 29 May 2006. On 16 August 2006 he was sent to Rustavi no. 6 Prison and placed in solitary confinement in the hospital wing. 33. On 22 December 2006, an in-patient psychiatric examination of the applicant took place. According to the report, the applicant had not been mentally ill before or at the time of the acts with which he was charged. He had therefore been responsible for his actions. However, at the time of the examination the applicant was suffering from a temporary psychological disorder in the form of brief reactive psychosis. He could not control his actions and needed intensive compulsory psychiatric treatment under increased medical supervision. On 31 January 2007 the Court of Appeal decided to order the applicant’s admission to Khoni Psychiatric Clinic, where he remained until his release. As it appears from the relevant medical files, the applicant received various treatments there and was monitored by medical specialists. 34. According to a report by the experts from the Empathy Centre dated 10 June 2008 containing the results of their monitoring of the applicant between 8 November 2005 and 27 May 2008, the applicant’s psychotic state had been triggered a few days after his arrest and he had been cured only after appropriate treatment had been administered by the doctors at the clinic in Khoni and by other doctors during the four months following his release. 35. On 20 December 2005, in response to a complaint filed by the applicant’s lawyer, the Tbilisi prosecuting authorities decided to separate the aspects of the case potentially relating to the alleged abuse of authority by the police officers during the arrest (Article 333 § 3 (b) of the Criminal Code) from the criminal case brought against the applicant and his friend. A separate investigation was therefore opened in that regard. 36. When questioned as a witness during that investigation on 26 January 2006, the applicant affirmed that he had been subjected to ill-treatment during his arrest. Notably, he alleged that he had first been pushed by the police officers, as a result of which he had fallen to the ground, and then the police officers had kicked him and beaten him with truncheons, causing particularly serious blows to his head. He also explained that he had been beaten at the temporary detention centre by seven or eight police officers who had also insulted him. He had fought back in order to defend himself. When he had been in Tbilisi no. 1 Prison, a visual medical examination had been carried out, during which he had deliberately misled the doctor by telling him that he had suffered the injury to his forehead prior to his arrest. He had in fact been afraid of being subjected to further ill-treatment. 37. The police officers who had stopped the applicant’s friend as he ran down the road with his phone and the officers who had arrived on the scene later to help with the arrest were also questioned. Their statements were the same as those they had made in the criminal case against the applicant. N.J. added that force had been used during the arrest and that the applicant had shown signs of it on his body. However, he claimed that the force used had been proportionate, in view of the fact that the applicant had been physically resisting the police officers. 38. A.Ts. also confirmed his previous statement (see paragraph 21 above). He added that his injured eye had bled and that since then he had almost completely lost his sight. The police officers who had been present in the temporary detention centre confirmed that A.Ts.’s eye had been injured by the applicant and also explained that breakable objects were not allowed inside the investigation room of the detention centre, which meant that the applicant could not have had a glass smashed over his head. 39. The applicant’s friend, who was arrested at the same time, confirmed that the applicant had been ill-treated during the arrest. His wife, who had been present at the scene, stated in her deposition that all she had seen was a quarrel, which had turned into a fight. Another of their friends stated in her deposition that the applicant had insulted the police officers first. However, she had not seen who had dealt the first blow. 40. On 7 April 2006 the applicant’s lawyer lodged a complaint with the Prosecutor General about the refusal of the Tbilisi Prosecutor’s Office to grant his client the status of civil party in the new case and the fact that, despite the requirements of Article 3 of the Convention, the investigation was not moving forward. 41. On 30 June 2006 the prosecuting authorities, relying on the witness depositions and the medical examinations carried out on the police officers, decided to discontinue the proceedings. They considered that the police had acted in accordance with the law during the applicant’s arrest and that there was no evidence to substantiate the applicant’s allegations of ill-treatment during his arrest and at the temporary detention centre. 42. The applicant lodged an appeal against that decision, arguing that no explanation had been provided for the injuries and the health problems he had experienced following his arrest. He repeated that those problems were the direct consequence of the ill-treatment he had suffered at the hands of the police, who had abused their authority. 43. On 9 August 2006 the Tbilisi City Court examined the case without the participation of the parties, relying solely on the evidence in the case file. It upheld the decision of 30 June 2006 to discontinue the proceedings on the grounds that the applicant had not raised the complaint of illtreatment either during questioning when he had been charged or when he had been questioned as an accused, despite being assisted by a lawyer during all the procedural steps concerning him. Furthermore, he had not availed himself of his right to request a medical examination or a medical opinion. The Tbilisi City Court concluded that, at the time of the applicant’s arrest, the police officers had not committed any acts which were contrary to the law and that the ill-treatment of the applicant at the police station had not been proved. 44. On 20 September 2006 the Tbilisi Court of Appeal, ruling without the parties present and as the court of last instance, held that the previous decisions were well-founded. 45. On 15 August 2006 between 11.20 a.m. and 11.45 a.m., representatives of the Public Defender’s Office (“PDO”) visited the applicant in the prison hospital and found that he had traces of blows and injuries to the head, loin and back. The applicant explained that, during the night of 14-15 August 2006, he had been beaten by the deputy director of the prison hospital, G.B., and six other members of the prison hospital staff, among whom he could identify I. and D. He alleged that he had been kicked, insulted and spat on. The applicant, who stated that he had insulted his attackers in return, had been placed in solitary confinement where, venting his aggression, he had smashed up everything. At the time of the representatives’ visit, he claimed to be hungry and complained of the prison authorities’ refusal to allow him to eat, drink or go to the toilet. He asked the representatives to help him obtain a transfer to a safe place and said that he feared being killed. 46. On 16 August 2006 the Department of Investigations of the Ministry of Justice commenced an investigation under Article 118 § 1 of the Criminal Code (intentionally causing less serious harm to the health of another). 47. When questioned as a witness by an investigator on 17 August 2006, the applicant changed his initial testimony. He asserted that he could not recall the details of the incident of 14-15 August 2006, as he had been taking psychotropic medication at the material time. All he could remember was that he had not had a fight with the representatives of the prison administration. He further claimed that he had frequent quarrels with other prisoners, whom he could not name because of the risk posed to his life. 48. The deputy director of the prison hospital, G.B., implicated by the applicant in his initial statement as having been involved in his ill-treatment, maintained that a fight had broken out between the applicant and another prisoner, A.A., in the prison hospital yard on 14 August 2006 and that prison officers had had to intervene in order to stop it. He claimed that he had not witnessed the incident personally and had only arrived at the prison hospital yard after the fight was over. The applicant had then been placed in solitary confinement. According to G.B., neither he nor any of the prison officers had either psychically or verbally insulted the applicant during this incident. 49. The prison officers who had been in the prison hospital yard during the incident were also questioned. They maintained that prisoner A.A. and the applicant, who they asserted was always aggressive towards prison hospital staff and other prisoners, had had a fight on 14 August 2006 and that due to the applicant’s aggressive behaviour he had been subsequently placed in solitary confinement. They claimed that on the next day the applicant had burnt his shirt, smashed up the cell and continued verbally assaulting prison officers. They also stated that the incident had lasted for a short period of time and that they had noticed no injuries on either A.A. or the applicant afterwards. 50. A.A. confirmed in a statement that on 14 August 2006 at around 6:00 p.m. while exercising in the prison hospital courtyard he had had an argument with the applicant and had kicked him once, after which prison officers had intervened and restrained them. A.A. noted that neither the prison officers nor the prisoners who were in the prison hospital courtyard during the incident had engaged in the fighting or had assaulted the applicant. 51. Another six prisoners, eyewitnesses to the incident, were additionally questioned in the course of the investigation. They confirmed that a fight had broken out between the applicant and A.A. on 14 August 2006 and that the prison officers had only intervened to stop it. 52. An independent medical report drawn up on 29 August 2006 at the request of the defence found that the applicant had two haematomas on his back, measuring 2 cm by 1.5 cm and 6.5 cm by 2.5 cm, and a 3.5 cm by 1 cm haematoma in the area of his loin. These injuries had been inflicted by a hard, blunt object and could have been inflicted at the time and in the circumstances referred to in the report of the visit of the PDO representatives. 53. On 7 July 2008 the prosecutor discontinued the proceedings for lack of evidence of a crime. Whilst omitting the medical evidence concerning the applicant’s injuries, he based his findings primarily on the deposition of the applicant given to the investigator on 17 August 2006, as well as on the statements of the Governor of the prison hospital, his two deputies, the prison officers and the applicant’s fellow prisoners questioned in the course of the investigation. The prosecutor concluded that it could not be established that the applicant had been physically assaulted by the staff of the prison hospital. 54. Article 28 § 1 (a) of the CCP stated that a preliminary investigation shall be discontinued if the act or omission concerned is not an offence under the Criminal Code. Pursuant to Article 62 §§ 1 and 2 of the CCP, whilst criminal investigations were normally carried out by the Ministry of the Interior, an investigation into an offence implicating a police officer, an investigator, or a senior military or special law-enforcement officer was to be entrusted to the Public Prosecutor’s Office. The other relevant provisions of the CCP read as follows: “1. A suspect has the right ... (f) when detained or issued with a decision on his/her recognition as a suspect, to request a free medical examination and relevant written conclusion, and to call for a forensic medical examination, which request should be immediately met. A refusal to order [such] an examination is subject to appeal in the district (city) court ..., which shall deal with the matter within 24 hours.” “1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or [in order] that a court’s verdict is implemented. Pre-trial detention or [any] other measure of restraint shall not be imposed on the accused if a less restrictive measure meets the objectives provided for in this paragraph. 2. The grounds for the imposition of a measure of restraint are a reasonable suspicion that the person might abscond or fail to appear in court, destroy evidence, threaten the parties to the proceedings or commit a new crime. ... 4. A court shall impose pre-trial detention as a measure of restraint only when the objectives set out in the first paragraph of this Article can not possibly be achieved by applying a less restrictive measure.” “Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...” “1. The preliminary investigation shall be opened on the basis of the information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...” 55. The relevant parts of the report read as follows: “... Ill-treatment of detainees has increased since December 2005. Some detainees reported being beaten regularly and severely or being subject to other ill-treatment and inhuman punishment. In some cases, the beatings and other inhuman treatment constituted torture. There is widespread impunity for such ill-treatment. Detainees have no access to an effective complaint mechanism and in some facilities have limited ability to communicate confidentially with their lawyers. Investigations into abuse are rare and those responsible for abuse are seldom held accountable. There are numerous obstacles to effective investigation and prosecution of perpetrators of abuse against detainees, including direct interference by prison authorities and the lack of identifying insignia among prison staff and special forces. ... The lack of investigations into the deaths, injuries, and other ill-treatment and possible torture inflicted by law enforcement agents acting in the Georgian penitentiary facilities in early 2006, also suggests that the government is not fully committed to guaranteeing justice for victims and eliminating the climate of impunity.” “... In 2005 the large majority of injuries alleged to have been sustained through police ill-treatment were reportedly inflicted during the arrest. In the same period Amnesty International also continued to receive information about some cases in which detainees were reportedly tortured or otherwise ill-treated in cars while being taken to a place of detention, in police stations, and in the Ministry of Internal Affairs. ... Impunity for torture or other ill-treatment is still a big problem. Amnesty International is concerned that procurators do not open investigations into all potential torture or other ill-treatment cases in a systematic manner. In dozens of cases where the procuracy has opened investigations the perpetrators have not been brought to justice. Investigations into allegations of torture or other ill-treatment have often not been conducted in a prompt, impartial and independent manner.” “2. Ill-treatment 10. In general, the CPT’s delegation gained the impression that the situation as regards the treatment of persons detained by the police in Georgia had considerably improved since the Committee’s second periodic visit. The great majority of the persons interviewed during the 2007 visit, who were or had recently been in police custody, indicated that they had been treated in a correct manner. The delegation received only a few isolated allegations of physical ill-treatment, all but one of which referred to the excessive use of force at the time of apprehension (i.e. kicks and punches after the person concerned had been brought under control). ... 15. ... [T]he CPT reiterates its long-standing recommendation that whenever persons brought before a judge at the end of police custody allege ill-treatment by the police, the judge record the allegations in writing, order immediately a forensic medical examination and take the necessary steps to ensure that the allegations are properly investigated. Such an approach should be followed whether or not the person concerned bears visible external injuries. Further, even in the absence of an express allegation of ill-treatment, the judge should request a forensic medical examination whenever there are other grounds (e.g. visible injuries, a person’s general appearance or demeanour) to believe that ill-treatment may have occurred. If necessary, the relevant legal provisions should be amended.”
| 1
|
train
|
001-5631
|
ENG
|
DEU
|
ADMISSIBILITY
| 1,999
|
HOERNER BANK GmbH v. GERMANY
| 1
|
Inadmissible
| null |
The applicant company is a private bank in the form of a limited liability company that was set up in 1850 and has its head office at Heilbronn (Germany). It is represented before the Court by Mr R. Zuck of the Stuttgart Bar. The facts of the case, as presented by the applicant company, may be summarised as follows. The applicant company has two main activities, which are closely connected. Firstly, it offers a service for tracing missing heirs (Erbensuche) with a view to being subsequently instructed to wind up the deceased’s estate. It traces heirs, whether or not their identity is known, both in Germany and overseas, either on behalf of authorities or institutions such as the testamentary executors or the administrators, or of its own initiative. It does so at its own risk and bears the costs. It receives no down payment and, if it fails to locate the heirs, no remuneration. Secondly, once it has traced the heirs, it offers its services in winding up the estate (Nachlaβabwicklung), for which it is paid a fee of between 8% and 10% of the value of the estate. Under the first sentence of the first paragraph of section 1(1) of the Legal Advisers Act (Rechtsberatungsgesetz – see “Relevant domestic law” below), the applicant company was in 1936 granted the licence it required to carry on its activity. It remained licensed until the 1960s. In a judgment of 24 February 1965 the Federal Court for Tax Cases (Bundesfinanzhof) held that missing-heir tracing services were commercial (gewerblich) in character and that there was a close connection between that activity and the winding up of estates. Accordingly, the applicant company was required to pay a traders’ tax (Gewerbesteuer). Following that judgment, in which the Federal Court for Tax Cases ruled only on fiscal issues, the applicant company decided in 1966 to surrender its licence under section 1(1) of the Legal Advisers Act and to carry on its business unlicensed, on the basis of section 1(5)(1) of the Act (see “Relevant domestic law” below). At the time both the President of the Heilbronn Regional Court and the Federal Bar Council (Bundesrechtsanwaltskammer) considered that the applicant company did not require a licence to carry on its activity. Subsequently two separate sets of proceedings were brought against the applicant company. I. The first action was brought in 1985 by the Freiburg Bar Council relying on the Legal Advisers Act and the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb). The Bar Council submitted in particular that following a 1980 amendment the applicant company’s activity no longer fell within the terms of the Legal Advisers Act, and accordingly the company could not receive a licence for it. The applicant company contended that owing to the close connection between tracing heirs and winding up estates it was not required to have a licence under section 1(1) of the Legal Advisers Act. In a judgment of 14 June 1985 the Constance Regional Court (Landgericht) accepted the applicant company’s argument finding that its activity of giving legal advice in the winding up of estates was a direct offshoot of its main commercial activity as genealogists. On an appeal by the Freiburg Bar Council, the Karlsruhe Court of Appeal (Oberlandesgericht) overruled the Regional Court’s judgment on 31 December 1986 and made an order restraining the applicant company from acting or offering to act for heirs (Realisierung von Erbansprüchen), since it did not have the requisite licence under section 1(1) of the Legal Advisers Act. The Court of Appeal considered that the genealogical activity was merely a way of finding clients in order to obtain work winding up estates, that being the main profit-making activity of the applicant company and one for which a licence was required. Furthermore, the genealogical activity was not necessarily connected to that of winding up estates as the two could be carried on separately. In any event, the latter was not under any circumstances a subsidiary legal activity capable of coming within the exceptions set out in section 1(5)(1) of the Legal Advisers Act. Lastly, that construction of the provision did not infringe the relevant provisions of the Basic Law. The Court of Appeal granted the applicant company a period of one year to make the change on condition that it immediately sought the requisite licence under section 1(1) of the Legal Advisers Act. The applicant company made a request for a licence to the competent authorities, but it was turned down. The President of the Heilbronn Regional Court stated in particular that the request, which was for a licence to act on behalf of heirs, fell outside the categories of activities set out in section 1(1) of the Legal Advisers Act. That statute had been amended in 1980 and the range of services which legal advisers were entitled to offer substantially curtailed, the right to perform most legal services being reserved to lawyers. Consequently, licences could be granted only for such activities as were exhaustively set out in section 1(1) of the Legal Advisers Act. The activity referred to by the applicant company was not one of them. At the same time the applicant company lodged an appeal on points of law with the Federal Court (Bundesgerichtshof), which was dismissed in a judgment of 16 March 1989. Like the Court of Appeal, the Federal Court considered that the applicant company could not act in the winding up of estates without the requisite licence. The applicant company then lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht). Sitting as a committee of three judges, the Constitutional Court decided on 22 August 1995 to dismiss that appeal. II. The second action against the applicant company was brought in 1990 by the Karlsruhe Bar Council on the same grounds as those relied on in the first action. In a judgment of 9 August 1990 the Karlsruhe Regional Court found in favour of the Bar Council. The Karlsruhe Court of Appeal dismissed the applicant company’s appeal on 10 April 1991. Its appeal on points of law to the Federal Court was also dismissed, in a judgment of 30 January 1992. The applicant company then lodged a constitutional appeal with the Federal Constitutional Court, which, sitting as a committee of three judges, decided on 22 August 1995 to dismiss the appeal. The Legal Advisers Act (Rechtsberatungsgesetz), which came into force in 1935, provides that the profession of legal adviser (Rechtsberater) may, subject to certain conditions, be exercised by people not possessing legal qualifications. The first sentence of the first paragraph of section 1(1) states that “regardless of whether it constitutes a main or subsidiary activity or is performed for a fee or free of charge, legal work (Besorgung fremder Rechtsangelegenheiten), including the giving of legal advice, may be performed for third parties only by persons licensed to do so by the relevant authorities”. Section 1(5)(1) of the Act provides: “the fact that commercial or industrial undertakings perform legal work for their customers that is closely connected to their main activity (die mit einem Geschäft ihres Gewerbetriebs in unmittelbarem Zusammenhang stehen) shall not constitute an infringement of this Act”.
| 0
|
train
|
001-77255
|
ENG
|
RUS
|
CHAMBER
| 2,006
|
CASE OF VOLOVICH v. RUSSIA
| 4
|
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1950 and lives in Yekaterinburg. He suffers from an occupational disease. 5. On 15 May 1997 the applicant sued his former employers, private companies, for compensation for health damage. The Zheleznodorozhniy District Court of Yekaterinburg registered his statement of claim and listed the first preliminary hearing for 9 July 1997. Another preliminary hearing was held on 4 September 1997. 6. Of six hearings listed between 5 February 1998 and 13 June 2000 two hearings were adjourned because the judge was ill or involved in other proceedings and two hearings were postponed for provision of additional evidence and obtaining statements by witnesses. 7. In June 1999 and January 2000 the applicant asked the District Court to order expert medical examinations. The examinations were not ordered because the applicant withdrew his requests. 8. On 13 June 2000 the Zheleznodorozhniy District Court dismissed the applicant's action as unsubstantiated. 9. That judgment was quashed on appeal by the Sverdlovsk Regional Court on 1 August 2000. The case was remitted for a fresh examination to the District Court. 10. It appears that the District Court received the case-file on 3 October 2000 and listed a hearing for 30 November 2000. At that hearing the applicant amended his claims and requested the District Court not to perform a medical examination. 11. Between 16 January and 5 June 2001 the District Court listed three hearings. All of the hearings were adjourned because the judge was ill or involved in other unrelated proceedings. 12. On 5 June 2001 the Zheleznodorozhniy District Court ordered a medical examination of the applicant. The court noted that the defendants should bear the expenses of the examination and stayed the proceedings pending completion. The applicant appealed against that decision, claiming that the examination was not necessary. 13. The Sverdlovsk Regional Court upheld the decision of 5 June 2001 on 7 August 2001. 14. On 9 July 2002 the Zheleznodorozhniy District Court sent the case-file and the applicant's medical records to the Moscow-based Federal expert council on occupational diseases (Федеральный экспертный совет по профзаболеваниям). 15. In November 2002 the council informed the applicant that the examination had not been carried out because it had not been paid for. 16. The examination was performed on 10 April 2003 by the Russian Academy of the medical sciences. The expert report was sent to the District Court on 16 April 2003. A month later the District Court received the case-file. 17. On 23 May 2003 the case was assigned to another judge and a hearing was fixed for 18 June 2003. Between 18 June and 4 August 2003 the District Court fixed two hearings which were adjourned because the defendants defaulted and the judge was ill. 18. On 4 August 2003 the Zheleznodorozhniy District Court dismissed the applicant's claims. 19. That judgment was upheld on 2 October 2003 by the Sverdlovsk Regional Court.
| 1
|
train
|
001-58906
|
ENG
|
FRA
|
GRANDCHAMBER
| 1,999
|
CASE OF FRESSOZ AND ROIRE v. FRANCE
| 1
|
Violation of Art. 10;No separate issue under Art. 6-2;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
|
Luzius Wildhaber;Paul Mahoney
|
8. Mr Roger Fressoz and Mr Claude Roire, who are French nationals, lived in Paris at the material time. Mr Fressoz was born in 1921 and is a former publishing director of the weekly satirical newspaper Le Canard enchaîné. Mr Roire was born in 1939 and is a journalist on Le Canard enchaîné. 9. September 1989 was a period of industrial unrest within the Peugeot motor company. The workforce's demands included pay rises, which the management, led by the company chairman and managing director Mr Jacques Calvet, refused to award. 10. On 27 September 1989, Le Canard enchaîné published an article by Mr Roire under the headline: “Calvet turbo-charges his salary” with the subhead: “His tax forms reveal more than he does. The Peugeot boss has given himself a 45.9% rise over the last two years.” The article itself included the following: “When Jacques Calvet appeared on the Antenne 2 programme 'L'heure de vérité' in October 1988, he refused to answer a question about his pay. This is seen as a public-relations blunder on the part of the Peugeot boss, but the Canard is now in a position to put it right, thanks to the famous M.D.'s three most recent tax-assessment forms, which have come into our hands by chance. At the time of the broadcast, he was earning 185,312 francs net per month. These documents show that, between 1986 and 1988, Calvet's total salary (plus benefits in kind and sickness benefit) rose by 45.9%. According to Peugeot's own figures, the average pay of the group's 158,000 workers rose by 6.7% over the same two years – in other words, almost seven times less than the boss's. M.D.'s blues Calvet has turned Peugeot around in spectacular style, but in a recent interview on Antenne 2 he said he was under stress due to his group's position in the face of the Japanese offensive. It would appear that this painful psychological crisis has not prevented him from swelling his income – though it should be noted that Calvet is far from Number 1 in the hit-parade of chief executives' salaries. In 1987 he awarded himself a 17% increase in his annual pay, bringing it to 1,786,171 francs – that is, 148,847 francs a month. Why? Probably because the Revenue had grabbed a big slice of his previous year's income. And this dreadful tax-pay spiral continued its destructive course the following year. In 1988, in order to scrape by, Calvet was forced to give himself another rise, of 24%. His salary that year came to 2,223,747 francs, i.e. 185,312 francs a month after deductions ...” The article was illustrated by a box reproducing a photocopy of that part of each of the three notices of assessment to tax which detailed Mr Calvet's “total taxable income” and showed the amounts he had received by way of “salary, benefits in kind and sickness benefit”. Each of the three totals was circled in pencil. 11. On 2 October 1989 Mr Calvet lodged a criminal complaint against a person or persons unknown, together with an application to join the proceedings as a civil party claiming damages, with the senior investigating judge at Paris tribunal de grande instance. He submitted that the events in question must have involved the unlawful removal and possession of the originals or copies of documents normally held by the tax authorities and amounted to the offences of misappropriation of deeds or documents by a public servant, breach of professional confidence, misappropriation of documents for the time needed to reproduce them and handling unlawfully obtained documents. 12. On 5 October 1989 the public prosecutor applied to the investigating judge for an investigation to be opened into allegations of theft, breach of professional confidence, unlawful removal of deeds or documents by a public servant and handling unlawfully obtained goods. 13. On 25 October 1989 the Minister for the Budget also lodged a criminal complaint, together with an application to join the proceedings as a civil party claiming damages, against a person or persons unknown for unlawful removal of government documents and breach of professional confidence. On 11 December 1989 the public prosecutor requested that a further investigation be opened. 14. In the course of the investigation, an analysis of the computer reference number on the copy documents in Mr Roire's possession revealed that they were photocopies of the part of the tax-assessment notice which is kept by the tax authorities and is not intended to leave their premises. An inspection of the premises confirmed that the locks on the cabinets containing the documents had not been forced and that the alarm protecting the premises outside working hours had not been activated. An examination of the original of Mr Calvet's tax assessment for 1988 revealed a palm-print belonging to the Divisional Director of Taxes. However, it was asserted that this person had called up the relevant tax file on 27 September 1989 at the request of the Head of the Revenue and the Director of Taxes for the département. The person or persons responsible for unlawfully removing the document from the tax authorities' premises could not be identified, with the result that no one was ever charged under that head. 15. On 8 March 1991 the applicants were charged with handling copies of notices of assessment to tax obtained through a breach of professional confidence, unlawful removal of deeds or documents and theft. 16. On 20 December 1991 the public prosecutor filed a report recommending that no one should be charged with the offences of theft or breach of professional confidence, that all the charges against the first applicant should be dropped and that the second applicant should be committed for trial before the Criminal Court on charges of handling photocopies of Mr Calvet's tax assessments obtained through a breach of professional confidence by an unidentified tax official. 17. On 27 January 1992 the investigating judge ordered that, as no culprit had been identified, the proceedings for theft and breach of professional confidence should be discontinued. The judge committed both applicants for trial before the Criminal Court on charges of handling confidential information concerning Mr Calvet's income obtained through a breach of professional confidence by an unidentified tax official and of handling stolen photocopies of Mr Calvet's tax assessments. 18. The applicants submitted two arguments in their defence: first, that the conditions for publishing directors to be criminally liable, laid down in section 42 of the Freedom of the Press Act of 29 July 1881 (see paragraph 25 below) did not apply and, second, that the elements of the offences with which they had been charged, as defined in Article 460 of the Criminal Code (see paragraph 27 below), were not made out in their case. 19. At the trial Mr Fressoz stated that the first time he had seen the extracts from the tax assessments printed in the newspaper was when he looked at the proofs before personally passing the article for press. He said he had asked Mr Roire “whether his documents were sound in journalistic terms”, that is to say, “whether the information was accurate and had been checked”. He acknowledged that, as a general rule, passing copy for press was the responsibility of an editorial assistant, who, “if there is a problem, consults the editor and, in the last resort, the publishing director”. The second applicant stated that the photocopies of the tax assessments had been sent anonymously in an envelope addressed to him by name, about a fortnight before they were used in the paper. He explained that he had “checked the plausibility” of the information in the documents, in particular by looking up the level of Mr Calvet's remuneration in specialist works including Fortune France. He said that he had also checked with various persons to ensure that the documents were photocopies of “genuine” tax-assessment notices. He specified that he had also verified that they really were tax-authority documents, adding that once it appeared that there was no proof that they had been obtained unlawfully, “the overriding consideration was the documents' significance”. 20. In a judgment of 17 June 1992, Paris Criminal Court acquitted the applicants, holding that the principal offences of theft and breach of professional confidence had not been made out because it had proved impossible to identify who had disclosed the documents or to establish the circumstances in which the offences had been committed. In relation to the offence of breach of professional confidence, the court held as follows: “ ... In the instant case, while it has been established that the originals of the documents in question are notices of assessment to tax held on Mr Calvet's tax file, it cannot be inferred from this that the person guilty of wrongfully taking them for the time needed to photocopy them, or of disclosing them to third parties, or of divulging the information contained in them, necessarily fell within one of the categories of person defined in the above-mentioned provision [Article L. 103 of the Code of Tax Procedure]; since the tax authorities themselves have suggested that the perpetrator might be 'someone from outside' ... – whatever the security regulations at the time. The fact that the status and professional functions of the person responsible for the disclosure are unknown therefore rules out any possibility of proving one of the essential elements of the offence of breach of professional confidence. Consequently, there is no formal proof that this offence was committed, so that the charge against the defendants of handling the fruits of a breach of professional confidence has not been made out ...” In relation to the theft charge, the court held: “... In particular, it has not been shown that the person who originally copied the documents had any unlawful intention or had such an intention at the time of taking the documents. Hence, without further rehearsing the numerous questions remaining unanswered concerning how these documents found their way into Mr Roire's hands, we find that the elements of the offence of theft have not been sufficiently proved. Unless it can be precisely established that, in the first place, an act defined as a serious crime (crime) or other major offence (délit) was committed, and its elements can be made out, the prerequisite for an offence of handling is lacking, and the defendant must be acquitted.” 21. On 25 and 26 June 1992 respectively, the public prosecutor and the civil parties claiming damages appealed. 22. In a judgment of 10 March 1993, Paris Court of Appeal reversed the judgment and found the applicants guilty of handling photocopies of Mr Calvet's tax returns obtained through a breach of professional confidence by an unidentified tax official. Mr Fressoz and Mr Roire were sentenced to, respectively, fines of 10,000 and 5,000 French francs (FRF) and ordered, jointly and severally, to pay Mr Calvet FRF 1 by way of damages for non-pecuniary damage and FRF 10,000 by way of reimbursement of legal costs under Article 475-1 of the Code of Criminal Procedure. The Court of Appeal held as follows: “This Court cannot agree with the manner in which the court below analysed the facts. The results of the investigations show that only a tax official familiar with the department could have leaked the documents, since no outside party had requested Jacques Calvet's file and that file was found, on the morning of 27 September 1989, in its normal condition, with the documents filed according to the particular practice of Chaillot Tax Office. It is certain that a third party, someone who was not a civil servant or was from outside the tax department, could not – without attracting attention – have taken documents filed in two separate places in the file, photographed or photocopied them and put them back in exactly the right place, given that the file is kept in a metal cabinet in a locked room to which there is access only for authorised persons. Contrary to the court below, we therefore hold that, in this case, it has been established that the offence of breach of professional confidence was committed, and that the fact that the culprit has not been identified is irrelevant. Mr Roire told the investigating judge that the photocopies of Jacques Calvet's tax notices were sent to him anonymously at the newspaper, in an envelope addressed to him personally. He confirmed that he had questioned various people in order to ensure that they were indeed copies of genuine tax documents. Mr Roire's article, containing a reproduction of the documents in question, was submitted to Roger Fressoz, the publishing director of Le Canard enchaîné, who, personally, passed it for press. Mr Fressoz told the investigating judge that he saw the extracts from Jacques Calvet's tax notices at that point. He explained that – as a general rule – copy is passed for press by the senior editorial assistant, who, if there is a problem, consults the editor and, in the last resort, himself. The offence of handling the fruits of a breach of professional confidence was characterised, in the instant case, by the publication of documents obtained in breach of the provisions of Article L. 103 of the Code of Tax Procedure and Article 378 of the Criminal Code and was committed by Mr Roire and Mr Fressoz given that, in the light of the nature of the documents and of the checks which Mr Roire says he carried out, the defendants must have known that those documents came from a tax file. Moreover, this explains why the article was passed for press by Mr Fressoz, the publishing director, and not an editorial assistant or the editor. It is worth recalling that, although Mr Fressoz was not the person to whom the documents were sent, he saw them before giving his authorisation to publish the article reproducing extracts from them. Therefore, both the actus reus and the mens rea of the offence of handling the fruits of a breach of professional confidence are present in his case as well as in that of the author of the article, Mr Roire ...” 23. Mr Fressoz and Mr Roire appealed to the Court of Cassation on points of law. In their grounds of appeal (and subsequently in a reply to Mr Calvet's pleadings), they submitted two arguments. As the first ground of appeal, Mr Fressoz argued that, since he was a publishing director as defined in the Act of 29 July 1881, the lower courts were not empowered to convict him of a handling offence under the general criminal law, but only of one of the offences specially defined in that Act. In his reply, he pointed out that the other side was confusing “handling” with “publishing”, submitting that Mr Calvet was concerned, not by the handling but by the publication – something which did not contravene any provision of the press laws, so that the prosecution had resorted to another, inappropriate, charge, that of handling. As the second ground, both applicants argued that the elements of the offence with which they had been charged, as defined in the relevant domestic law, including sections 5, 6 and 42 of the 1881 Act, were not made out in their case. On that point, they maintained that Mr Calvet's tax assessments were not covered by a duty to preserve confidentiality – so that there could have been no breach of such a duty – but contained information which was available to the public. They argued that a journalist could not lawfully be convicted of “handling information” and submitted that the Court of Appeal had failed to demonstrate how the actus reus and mens rea of the offence with which they had been charged – namely possession or control of the thing in question and knowledge that it had been obtained unlawfully – were made out in their case. With regard to the fact that the Court of Appeal had deduced that Mr Roire must have known that the documents had been obtained unlawfully since, when he had received them, he had verified that they were indeed copies of tax assessments, Mr Roire submitted that he had “merely fulfilled his duty as a journalist: before publishing information, he had checked that it was genuine, as required by the obligation on all journalists to exercise caution and verify sources”. 24. The Court of Cassation dismissed the appeal on 3 April 1995, holding as follows: “ ... The grounds [of the Court of Appeal's judgment], following as they do from findings of fact which are not subject to review by this Court, show that the appellate court, having established that the defendants knowingly had in their possession or control documents obtained through a breach of professional confidence, contrary to Article L. 103 of the Code of Tax Procedure, did not misdirect themselves in law as alleged [by the appellants]. In particular, the Court of Appeal cannot be held to have misinterpreted Article 460 of the Criminal Code as it stood at the time, in which the only offence defined is that of handling stolen goods, since, although it found the applicants guilty of handling unlawfully obtained photocopies, it rightly dismissed the charge of handling unlawfully obtained information on which the journalists were committed for trial before the Criminal Court. Information, whatever its nature or source, is covered neither by Article 460 nor by Article 321-1 of the Criminal Code which came into force on 1 March 1994, so that, if a problem arose – that is, if certain information were published and that publication were challenged by the persons concerned – the only legal provisions governing it would be those specifically concerning the freedom of the press or of audiovisual communication ...” 25. The relevant sections of the Freedom of the Press Act of 29 July 1881 provide as follows: “Anyone may print or sell books and other publications”. “Any newspaper or periodical may be published without prior authorisation or the payment of any security, provided that the declaration required by section 7 has been made”. “All press publications must have a publishing director ...” “The following persons shall be liable, as principals and in the following order, to penalties for serious crimes (crimes) or other major offences (délits) committed through the press: (1) publishing directors or publishers, whatever their profession or title and, in the circumstances defined in section 6(2), joint publishing directors; (2) in the absence of any of the foregoing, the actual offenders; ...” 26. The relevant Articles of the Code of Tax Procedure provide as follows: Article L. 103 “The duty to preserve professional confidentiality, as defined in Article 378 of the Criminal Code, applies to any person who is required, in the course of his duties or exercise of his powers, to take any action concerning the assessment, inspection or recovery of, or disputes over, any taxes, duties, imposts or levies referred to in the General Tax Code. The duty shall cover all information obtained in the course of the above-mentioned operations.” Article L. 111-1 “A list of the persons liable for income tax or corporation tax shall be drawn up, distinguishing between the two types of tax as levied in each municipality. ... The list shall be kept by the Revenue Department for each area and shall be available for consultation by the taxpayers in that area. The Department may order it to be posted. ... The list concerning income tax shall also show, in the manner provided for by decree and for each taxpayer, the number of dependants' allowance tax units applicable, the amount of tax payable and the total tax credits. ... Publishing or otherwise disseminating the lists referred to above or any information relating to those lists which concerns a named person is forbidden on pain of a tax fine under Article 1768 ter of the [General Tax] Code”. 27. At the material time, Article 460 of the Criminal Code provided: “Anyone who knowingly handles any goods (or any part thereof) taken, misappropriated or obtained by means of a serious crime (crime) or other major offence (délit) shall be liable to between three months' and five years' imprisonment or a fine of between FRF 10,000 and FRF 2,500,000 or both. The amount of the fine may be increased to a sum exceeding FRF 2,500,000 but not exceeding half the value of the goods handled ...”
| 1
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train
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001-5661
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,001
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ELIAS v. THE UNITED KINGDOM
| 4
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Inadmissible
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Nicolas Bratza
|
The applicant is a British national, born in 1960 and living in London. He is represented before the Court by Mr S. Creighton, a lawyer practising in London. The applicant was charged with conspiracy to receive and handle stolen goods (computers and computer parts). The trial commenced on 12 January 1998 in the Crown Court.On 17 March 1998 prosecuting counsel, in his closing speech, described the applicant in the following terms: “Completely and utterly and thoroughly dishonest from the heart, I suggest to you. The most self-regarding, utterly cynical, greedy and world-weary (as one of his clients said) man. You can’t believe, I suggest, a single word he says. When he is not actually lying he is being evasive, dishonestly precise, prevaricating and economical with the truth. A master of deceit. ... [The applicant’s running record of his dealings and assets] is an important document in its own way because again it reveals something about the psychology of this man why he was behaving in the way he did. It is, members of the jury, the document in which he lists his money. It was last modified, if you turn back one page, on the day before his arrest at 8.34 in the morning. The police arrived too early for him on 20 July to have amended it, updated it, for that day but here he lists all his assets and substantial they are: £141,000. Why, members of the jury, does this man update his list of assets so regularly? Then I draw the analogy with Oliver Twist who is seen in the musical where Fagin gets his box out from under the floorboards when he thinks it is all going to go wrong and goes through all the money and the lolly and the jewels and everything he has stashed away under the floorboards, because, like Fagin, I suggest he is in the end keeping his hands on his own material and this is his record. Of course he doesn’t have a box any more like Fagin. He has stashed it these days in Jersey. Members of the jury, as well he is very similar because of course until towards the end he doesn’t actually go out and directly grubby his hands with the burglars. He is always just at one remove, is he not, on the evidence in this case?” The applicant’s counsel, in the absence of the jury, complained to the trial judge about the remark. After an exchange between the respective counsel, the judge stated that it had occurred to him at the time of the remark that the reference was unfortunate, and he could understand the applicant feeling upset about it. He was sure, however, that it was not intended, and expressed the hope that no more would be said about it. After the lunch adjournment, counsel for the applicant submitted, again in the absence of the jury, that the analogy was offensive, anti-Semitic and that the jury might be influenced to be prejudiced against the applicant on grounds of race. The applicant, like the character of Fagin, was Jewish Accordingly, the jury should be discharged and there should be a retrial. Counsel for the prosecution repeated that his reference to Fagin had intended to be a reference solely to a well-known receiver of stolen goods, and stated that if he had given offence to the applicant, he apologised. In replying, counsel for the applicant noted that to compare a figure with Fagin was a very serious matter, and that if the trial were to continue, the applicant, if convicted, could be left with the impression that he had not had a fair trial. The trial judge dismissed this application, holding that the comments made by prosecuting counsel as to the applicant’s character were within the scope of what could be said in the trial by the prosecution and that with regard to the complaint as to the analogy with Fagin, the possibility that a jury would be influenced and prejudiced against the applicant on grounds of race or religion as a result of such analogy was a remote in the extreme. He did not accept that a dispassionate observer would consider that the trial had been unfair because of the analogy, considering rather that it was more likely that any prejudice would be against the Crown for having raised the issue. In closing his remarks on the application for discharge, the judge noted that prosecuting counsel had offered to apologise for the offending words, and that counsel for the applicant would then have the opportunity to reply. The judge indicated that, unless the issue was further discussed, he intended to direct the jury to make their decision on the evidence, without specific reference to the incident. When the jury returned, prosecuting counsel apologised in open court, apologising to the applicant, and emphasising that he did not wish the applicant to feel any offence, and that the jury should not decide on the basis of the applicant’s Jewish origin. He also reminded the jury that at the end of the case they were to decide on the evidence, and not on the basis of any analogies. The applicant was convicted and sentenced on 6 April 1998 to two years’ imprisonment and a confiscation order of £120,000, with three years’ imprisonment in default. He was also ordered to pay £25,000 towards the costs of the trial. The applicant appealed against his conviction and sentence. After leave to appeal had been granted by a single judge, the appeal was heard by the Court of Appeal on 20 November 1998. The appeal against sentence was allowed to the extent that the period of three years’ imprisonment in default was reduced to two years, and the order for costs was quashed. The appeal against conviction was on the grounds that the trial judge ought to have discharged the jury following the racially offensive comparison of the applicant to Fagin. The Court of Appeal refused the appeal against conviction: “ ... so far as the reference to Fagin is concerned we have no doubt that it was ill-judged. We accept, as all appear to have accepted (save possibly [the applicant] himself) that there was no intention on the part of counsel to introduce a racial slur. However, in the case of a Jewish defendant, counsel’s words were almost bound to give offence. It may well be the case that reference to literature’s best known receiver of stolen goods is frequently made at handling trials, without any thought for racial overtones to which it may give rise. However, the very example of this case indicates that such an advocates’ shorthand is likely to give unnecessary offence to those who regard Fagin not simply as an accomplished receiver but as an offensive racial stereotype. He was certainly so portrayed in Dickens’ “Oliver Twist”, whatever the ameliorating effects of the modern musical “Oliver”, which is now more likely to govern most people’s mental image of Fagin. In our view, in any case where reference to Fagin amounts to something more than reference to the concept of a den of thieves and appears to involve a personal analogy between Fagin himself and the defendant, it should be avoided. That said, however, it seems to us quite unrealistic to argue that the error of judgment made by prosecuting counsel in this case, once recognised and made subject of an apology, should, in the absence of more, have caused the judge to discharge the jury from giving a verdict. ...The question to which the judge at the time should have directed himself and which this court must now address is whether, in all the circumstances, there was real danger that the position of [the applicant] had been prejudiced, in the sense that the jury or any of their number might unfairly regard his case with disfavour on the grounds of racial prejudice or bias as a result of prosecuting counsel’s words. The judge did not think so, and nor do we. This is not one of those cases in which there is any evidence of actual bias in the sense of a remark overheard, or ambivalent behaviour observed on the part of any juror, nor does any inevitable inference of danger of bias arise by reason of what was said. The case of the appellant proceeds on the inherent proposition that, once uttered, the words of prosecuting counsel could not be undone; that, by some kind of empathy, the moment counsel spoke words which appeared to invoke racial bias, some member or members of the jury would immediately adopt it, deserting their task of deciding the case purely upon the evidence; and this despite the express reminder as to their duty given by counsel (only an hour later) in the course of his apology. It further assumes that the jury might maintain that state of mind during their deliberations, despite the judge’s subsequent direction in the course of his summing up to try the matter on the evidence alone. We do not accept that there is any realistic possibility that these propositions are correct. The only evidence of jury bias which [counsel for the applicant] suggests exists is the fact that [the applicant’s] co-accused [Oliver S.] was acquitted despite his apparent involvement in the conspiracy and certain admissions made to the police. We do not find that point persuasive ... As already indicated, the case against [S.] was that his admissions were obtained as a result of police pressure and there was a weight of character evidence called on his behalf, in a case where his explanations depended upon his presentation as a naive young man fooled by the dishonesty of others more sophisticated than himself. this was not the case of a “cut-throat” defence, with [the applicant] blaming [S.] so that one or other must be lying; the acquittal of [S.] was in no way inconsistent with conviction of [the applicant], against whom the evidence demonstrated far greater involvement and whose own records effectively convicted him. Given the overwhelming strength of the case against [the applicant], there is no reason to suppose that he was convicted on any basis other than the strength of the evidence against him. His application for leave to appeal against conviction must therefore be dismissed.” On 21 March 2000 a panel of the Professional Conduct and Complaints Committee of the Bar Council determined the applicant’s complaint to the Bar Council about prosecuting counsel’s behaviour. It accepted counsel’s statement that he did not intend to make racially offensive remarks, but was satisfied that he had gone beyond reference and had strayed into a personal analogy between Fagin and the applicant. The Committee considered the analogy to be insulting, the more so as the applicant was Jewish. The panel found that counsel had engaged in conduct disreputable to a barrister. It considered that the breach was at the lower end of the scale, and, noting the apology proffered, advised counsel to avoid such analogies in the future.
| 0
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train
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001-67220
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ENG
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SWE
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CHAMBER
| 2,004
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CASE OF AB KURT KELLERMANN v. SWEDEN
| 2
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No violation of Art. 6-1
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Nicolas Bratza
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10. The applicant company, which conducted business within the textile industry, was not a member of any employers' association. Thus, it was not automatically bound by any collective bargaining agreement (kollektivavtal) negotiated in the industry, and had not signed any such agreement of its own volition. It had about twenty employees two of whom were members of the Industrial Union (Industrifacket; hereinafter “the union”), an affiliated member of the Swedish Trade Union Confederation (Landsorganisationen; hereinafter “the LO”). 11. In the spring of 1997 the union requested negotiations with the applicant company with a view to concluding a collective agreement. Such negotiations were held on 13 May 1997. The minutes of the negotiations stated, inter alia, that the applicant company was not interested in reaching an agreement at that time but would consider the matter. The minutes also recorded that the parties had concluded that the salaries paid by the applicant company were higher than the minimum wage stipulated in the collective agreement proposed by the union. 12. In a subsequent written exchange the applicant company stated that it had no intention of concluding a collective agreement with the union. 13. Soon thereafter the union demanded that the applicant company sign the so-called IG agreement (IG-avtalet), a collective agreement specially conceived by the union for employers who were not members of an employers' association. The applicant company declined, stating that its terms of employment were considerably more favourable to the employees than those stipulated in the IG agreement, that the existing employment contracts were perfectly adequate and that the employees belonging to the union objected to the union intervening on their behalf. However, it offered to sign a collective agreement with the union incorporating its existing terms of employment. The union rejected this proposal and announced that it might take industrial action. 14. On 3 October 1997 the union gave the applicant company formal notice (varsel) that it would take action by ordering the cessation of all work at the company and by imposing a “blockade” on the company from 13 October onwards unless an agreement had been reached before that date. 15. On 17 October 1997 the applicant company instituted proceedings against the union in the Stockholm District Court (tingsrätt), claiming that the threatened industrial action was unlawful and that the union should be ordered to withdraw the notice. The applicant company also requested that the District Court make an interim order to that effect. 16. On 20 October 1997 the union took the industrial action. It lasted only one day. The notice remained effective, however. 17. Negotiations were thereafter held before the National Conciliation Board (Statens förlikningsmannaexpedition). The union stated that certain parts of the IG agreement were not negotiable. The applicant company indicated that it was considering joining an employers' association, the Swedish Textile and Clothing Industries' Association (Tekoindustrierna), to which the union responded that it would not take any further industrial action against the company. However, the applicant company did not join that association and the negotiations broke down. 18. On 13 November 1997 the District Court rejected the applicant company's request for an interim order. 19. In the substantive proceedings, the union claimed that the District Court had no jurisdiction to decide the dispute and that, instead, it should be referred to the Labour Court (Arbetsdomstolen), whose decision should be final. By a decision of 5 December 1997 the District Court, referring to chapter 2, section 1, subsection 4 of the Litigation in Labour Disputes Act (Lagen om rättegången i arbetstvister, 1974:371; hereinafter “the 1974 Act”) and section 41 of the Co-Determination at Work Act (Lagen om medbestämmande i arbetslivet, 1976:580; hereinafter “the 1976 Act”), agreed with the union and transferred the case to the Labour Court. 20. Before the Labour Court, the applicant company claimed that the composition of the court which would determine the case should be restricted to professional judges – i.e. without members representing employers' and employees' interests – as it would otherwise not meet the requirement of objective impartiality under Article 6 of the Convention. 21. On 14 January 1998 a bench of the Labour Court composed of members who did not represent labour market interests rejected the applicant company's claim, stating that at the main hearing of a case, the composition of the court had to be in accordance with chapter 3, section 6 of the 1974 Act. 22. The Labour Court held a hearing in the case on 23 January 1998. 23. The applicant company maintained that the industrial action taken by the union was aimed at forcing it to join an employers' association or to accept the collective IG agreement drawn up by the union. It stated that only two union members were employed at the company and both of them had declared that they did not want to take part in the industrial action. The applicant company also claimed that its terms of employment were more favourable than those stipulated in the IG agreement. Since the means employed by the union were not reasonably proportional to the aim sought to be achieved, the industrial action had violated the applicant company's right not to join an employers' association and thus its right to negative freedom of association under Article 11 of the Convention. Alternatively, the applicant company asserted that the industrial action conflicted with a general principle of proportionality which it maintained was applicable under Swedish law, as it could entail serious economic consequences for the company. 24. For its part, the union claimed that, on the whole, the terms of employment provided by the applicant company were not more favourable than those contained in the IG agreement although it accepted that the salaries of its two members were higher than the minimum salary prescribed by that agreement. The union also stated that the IG agreement could be adapted to meet the special requirements of the applicant company. It further argued that the Convention was not applicable to the dispute as it only governed relations between individuals and the State and the 1976 Act was applicable as lex specialis. Alternatively, it asserted that Article 11 of the Convention did not afford any protection to a limited liability company and that, in any event, the judgment of the European Court of Human Rights in the case of Gustafsson v. Sweden (judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, p. 637 et seq.) showed that Article 11 did not confer any right not to sign a collective agreement. As regards the industrial action that had been taken, the union stated that it served the legitimate aims of improving the employment situation for union members and protecting them in various ways and could not be considered disproportionate to those aims. The union also claimed that a general principle of proportionality, as invoked by the applicant company, could not be used to limit the constitutional right to take industrial action. In its submission, the right to take such action against employers who were not bound by collective agreements was in principle unlimited under Swedish law. 25. By a judgment of 11 February 1998 the Labour Court found in favour of the union. Noting at the outset that the parties agreed that the industrial action in question was not unlawful under the 1976 Act, it went on to examine in detail whether it could involve a violation of the applicant company's right to negative freedom of association under Article 11 of the Convention, which had been part of Swedish law since its incorporation into domestic law on 1 January 1995. First, the Labour Court rejected the union's preliminary objections as to the applicability of the Convention, as such, to the dispute at hand. It noted, inter alia, that the rules on industrial action in the 1976 Act – which were based on the constitutional principle that the right to take such action is unlimited unless otherwise provided by law – prescribed the situations in which such action would be unlawful. Thus, it could not be excluded that further restrictions on the right to take industrial action could follow from other legislation, including the Convention. The provisions of the 1976 Act, therefore, did not prevent Article 11 of the Convention from being applicable. The Labour Court then went on to examine whether the industrial action had violated Article 11. It noted that the rationale behind the union's action was not to force the applicant company to join an employers' association but to conclude a collective agreement with it which, according to the union, would promote the economic interests of its members. Among other things, the proposed agreement prescribed that compensation be paid for overtime work, which, indisputably, was not the case under the applicant company's terms of employment. Having regard, inter alia, to the aforementioned judgment in the case of Gustafsson v. Sweden, the Labour Court concluded that the industrial action had not violated the applicant company's rights under Article 11. It found also that there was no basis in law for the applicant company's contention that a general principle of proportionality was applicable in labour disputes. 26. The Labour Court which heard the case and delivered judgment was composed of seven members. In accordance with the 1974 Act, the Labour Court was composed of two legally trained and qualified judges and five lay assessors. One assessor had been appointed because of her special knowledge of the labour market. However, she did not represent any employers' or employees' interests. Of the other four assessors, two had been nominated by employers' associations (a director of the Swedish Employer's Confederation (Svenska Arbetsgivareföreningen; hereinafter “the SAF”) and an employee of the Ministry of Finance representing the State employers) and two by employees' associations (ombudsmen in the LO and the joint Central Organisation of Salaried Employees and Central Organisation of Swedish Academics (Tjänstemännens Centralorganisation and Svenska Akademikers Centralorganisation; hereinafter “the TCO/SACO”), respectively). 27. The member nominated by the SAF disagreed with the Labour Court's judgment and considered that the industrial action in question violated Article 11 of the Convention, as the union had failed to show that the terms of employment stipulated by the IG agreement were more favourable than those provided by the applicant company. 28. Following the Labour Court's judgment, the union made a further approach to the applicant company with a view to concluding a collective agreement. The applicant company again refused but informed the union that the rules on overtime work set out in the IG agreement had been introduced at the company. 29. On 23 February 1998 the union applied to the Labour Court for a declaratory judgment establishing the union's right to take immediate industrial action against the applicant company. It also requested the court to take an interim decision on this matter. 30. The applicant company opposed the union's claims and again objected to the composition of the Labour Court. It also requested an order requiring the union to provide security for any damage the company might sustain. 31. By a decision of 9 March 1998 the Labour Court, composed of members who did not represent labour market interests, rejected the applicant company's challenge to its impartiality on the same grounds as in its decision of 14 January 1998. 32. Following a hearing on 12 March 1998, the Labour Court, by a decision of 13 March, granted the union's request for an interim declaration that the proposed industrial action was lawful. It thus rejected the applicant company's claims that the union's application was res judicata on account of its previous judgment and that the requirements under Swedish law for a declaratory decision – whether final or interim – were not met. It also rejected the applicant company's claim that the proposed action should be deemed unlawful as the rules on overtime work set out in the IG agreement had been introduced at the company – an assertion which was not confirmed by the union – and as the two union members had been dismissed owing to scarcity of work at the company. Referring to its established case-law, the Labour Court further found that the union, being an organisation, did not have to provide security. 33. The composition of the Labour Court which heard and examined the union's claims was the same as for the judgment of 11 February 1998 (see paragraph 25 above), including two assessors nominated by employers' associations (another SAF director and the same employee of the Ministry of Finance) and two by employees' associations (a former vice-president of a trade union affiliated to the LO and a former head lawyer of a trade union affiliated to the TCO/SACO). 34. The member nominated by the SAF submitted an opinion dissenting from the Labour Court's decision, on the ground that it was not perfectly clear that the proposed industrial action was lawful, for which reason the union's interim request should be rejected. 35. The applicant company complained to the Supreme Court (Högsta domstolen), requesting that the Labour Court's decision of 13 March 1998 be set aside owing to a grave procedural error (domvilla). It argued that the Labour Court could not rule on the union's request unless security had been furnished for the applicant company's potential loss. Alternatively, the applicant company's negative freedom of association had been breached as a consequence of the union having been afforded procedural privileges in its capacity as an organisation. On 26 March 1998 the Supreme Court refused the applicant company's request, finding that it had not established any grounds for quashing the Labour Court's decision. 36. It would appear that the union proceeded with industrial action on 6 April 1998. Supportive industrial action was also taken by other trade unions. On 8 April the applicant company joined the Swedish Textile and Clothing Industries' Association and thus became bound by a collective agreement. The union's own industrial action was immediately suspended but supportive action by another trade union lasted over the Easter weekend until 13 April. 37. On 30 April 1998, following a settlement between the applicant company and the union and the latter's withdrawal of the application it had lodged on 23 February 1998, the Labour Court struck the proceedings out of its list. 38. Due to declining profitability, the applicant company went into voluntary liquidation in June 1998. By a decision of 17 June the District Court of Nacka declared the applicant company insolvent. On 30 March 2001 the winding up was terminated and the applicant company dissolved. 39. The right to take industrial action is guaranteed under the Swedish Constitution. Chapter 2, section 17 of the Instrument of Government (Regeringsformen) provides the following: “Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement.” 40. The law referred to is the Co-Determination at Work Act (“the 1976 Act”). The right of association is defined in section 7: “Right of association means the right of employers and employees to belong to an organisation of employers or employees, to benefit from their membership as well as to work for an organisation or for the founding of one.” This right is further regulated in section 8: “The right of association shall not be violated. A violation ... will occur, if anyone from the employer's side or the employee's side takes any action to the detriment of anybody on the other side by reason of that person having exercised his right of association, or if anybody on either side takes any action against anybody on the other side with a view to inducing that person not to exercise his right of association. A violation will occur even if the action so taken is designed to fulfil an obligation towards another party. An employers' or employees' organisation shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, these provisions shall apply to the central organisation. If the right of association is violated by termination of an agreement or another legal measure or by a provision in a collective agreement or other contract, that measure or provision shall be void.” Section 10 provides a right of negotiation: “An employees' organisation shall have the right to negotiate with an employer regarding any matter relating to the relationship between the employer and any member of the organisation who is or has been employed by that employer. An employer shall have a corresponding right to negotiate with an employees' organisation. A right of negotiation ... shall also be enjoyed by the employees' organisation in relation to any organisation to which an employer belongs, and by the employer's organisation in relation to the employees' organisation.” 41. Under section 41 there is an obligation for parties bound by a collective agreement to maintain peaceful industrial relations: “Employers and employees who are bound by a collective agreement may not initiate or take part in a work stoppage (lockout or strike), blockade, boycott or other comparable industrial action, if the agreement has been concluded by an organisation and that organisation has not decided on the measure in the prescribed manner, if the measure is contrary to a provision on peaceful industrial relations in a collective agreement or if the measure is designed: 1. to exert pressure in a dispute concerning the validity, continuance or meaning of the collective agreement or whether particular conduct is contrary to the agreement or this Act, 2. to bring about changes to the agreement, 3. to give effect to a provision which it is intended will be applied once the agreement ceases to be valid, or 4. to support a person who has no right to take industrial action. Industrial action taken in contravention of the first paragraph shall be unlawful. ...” 42. Labour disputes are generally governed by the provisions of the Code of Judicial Procedure (Rättegångsbalken). However, the Litigation in Labour Disputes Act (“the 1974 Act”) contains specific rules relevant to disputes concerning the application of the 1976 Act and to other labour disputes. The courts' jurisdiction is set out in chapter 2 of the 1974 Act. Section 1 provides: “The Labour Court shall, as a court of first instance, hear and decide disputes referred to it by an employers' or an employees' organisation or by an employer which has itself entered into a collective agreement, if the case concerns: 1. a dispute relating to a collective agreement or other labour dispute referred to in [the 1976 Act], 2. another labour dispute on condition that there is a valid collective agreement between the parties or that an individual employee concerned by the dispute is employed in work covered by a collective agreement by which the employer is bound. The Labour Court shall also be the competent court under the first paragraph when a collective agreement temporarily ceases to be valid. Other labour disputes between the same or other parties may be heard together with a labour dispute under the first or second paragraphs, if the Court finds it expedient in the light of the investigation or other circumstances. When appropriate, the cases may be severed again. The Labour Court shall have jurisdiction, as a court of first instance, to hear and decide all disputes referred to in section 41 of [the 1976 Act]”. 43. Other labour disputes are heard by the District Court (section 2) and an appeal lies to the Labour Court (section 3). The Labour Court's judgments and decisions are final (section 4). 44. The composition of the Labour Court is regulated in chapter 3 of the 1974 Act. Sections 1-3 contain rules on the number of members of the Labour Court and the eligibility, term of office, nomination and election of members. Section 1 states: “The Labour Court shall be composed of no more than four presidents, no more than four vice-presidents and seventeen other members. Members shall be Swedish citizens and may not be minors, undischarged bankrupts or under guardianship ... . Before taking up office in the Labour Court, they shall take the judicial oath. ... Members ... shall be appointed by the Government for a period of three years.” Section 2 provides: “The presidents, vice-presidents and three other members shall be elected from among persons who cannot be considered to represent employers' or employees' interests. The presidents and vice-presidents shall be legally qualified and experienced in the judicial profession. The three other members shall have special knowledge of the conditions on the labour market.” Section 3 reads: “Of the other fourteen members, four shall be elected on the proposal of the Confederation of Swedish Enterprise [Föreningen Svenskt Näringsliv; until 2001 the Swedish Employers' Confederation], one on the proposal of the Swedish Association of Local Authorities [Svenska Kommunförbundet], one on the proposal of the Federation of County Councils [Landstingsförbundet], one on the proposal of the Swedish Agency for Government Employers [Arbetsgivarverket; until 1 July 2001 the text read “one as a representative of the State as employer”], four on the proposal of the Swedish Trade Union Confederation, two on the proposal of the Central Organisation of Salaried Employees and one on the proposal of the Central Organisation of Swedish Academics. ...” 45. Section 6 regulates the composition of the Labour Court in individual cases. It reads as follows: “The Labour Court shall sit with a president and no more than six or less than four other members. Of the members referred to in section 2, no more than three or less than one shall take part. Of the members referred to in section 3, no more than four or less than two shall take part, in equal numbers from the employers' side and the employees' side. The Labour Court may also sit with a president and one member each from the employers' side and the employees' side: 1. at a main hearing in a case which has no jurisprudential significance and is in other respects uncomplicated; 2. in the determination of a case without a main hearing; 3. in other proceedings not conducted at a main hearing. The Labour Court may further sit with three professional judges in proceedings referred to in subsections 2 (2) and (3) if the examination essentially concerns matters unrelated to labour law. ...” 46. Chapter 11, section 2 of the Instrument of Government, which contains provisions on safeguarding the independence of the judiciary, is applicable to the members of the Labour Court. It provides: “Neither a public authority nor Parliament may decide how a court should adjudicate an individual case or otherwise apply a rule of law in a particular case.”
| 0
|
train
|
001-92368
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF POPOV AND VOROBYEV v. RUSSIA
| 3
|
Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The applicants were born in 1964 and 1963 respectively and live in Vladivostok, Russia. At the material time the first applicant, a police officer, and the second applicant, a former police officer, were the chairman and the deputy chairman of a local police trade union. 7. On 28 October 1999, in connection with the discovery of two explosive devices and cartridges at the home of a third person, K., the department of the interior of the Primorskiy region and the Federal Security Service of Russia (“the FSB”) initiated criminal proceedings under Article 222 § 1 of the Criminal Code of Russia (“unlawful acquisition, transfer, sale, storage, transportation and carrying of firearms, basic parts of firearms, ammunition, explosives and explosive devices”). 8. On 14 January 2000 the applicants were arrested. On 17 January 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention, referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice. 9. On 24 January 2000 the applicants were transferred to detention centre IZ-25/1 (“the detention centre” – in some of the documents submitted also referred to as IZ-20/1) in Vladivostok. 10. On 13 March 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 April 2000, referring to the same reasons, namely the risk of their absconding from the authorities or obstructing the course of justice. 11. On 3 April 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 May 2000. The first applicant’s lawyer appealed against the extension order. On 28 April 2000 the Leninskiy District Court of Vladivostok dismissed the appeal and stated that the applicant had the right to appeal against that decision to the Primorskiy Regional Court. The first applicant did not appeal to the second-instance court. 12. On 27 April 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 July 2000, referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice. 13. On 10 July 2000 the investigation forwarded the criminal case against the applicants to the Primorskiy Regional Court for the determination of the jurisdiction for the trial. On 13 July 2000 the Regional Court decided that the case should be examined by the Frunzenskiy District Court of Vladivostok (“the District Court”) and forwarded the case file to the District Court. 14. On 8 August 2000 the District Court held a directions hearing and decided to examine the criminal case on 11 October 2000. The court also decided to extend the applicants’ detention on remand, using a summary formula in respect of both applicants and stating that “the preventive measure in respect of [the applicants] should remain the same – detention on remand”. No reasons for the extension of the applicants’ detention on remand were provided. 15. On 11 October 2000, during the examination of the applicants’ case, the court allowed an application by them for an additional expert assessment of fingerprints. The court forwarded the case file to Moscow for the expert assessment and adjourned the hearing of the criminal case. During the hearing the applicants complained under Article 276 of the Code of Criminal Procedure (lodging applications before the court) to the District Court about the length of their detention on remand and requested to be released pending trial. The applicants stated that they had permanent places of residence; that they had the necessary communication equipment to ensure constant contact with the authorities; that they had always been given positive assessments; that they had received State military awards; that they had minor children; and that they both had kidney diseases, treatment for which was not available at the detention centre. Their complaint was included in the case file (pages 497-499), but was not examined by the court. 16. On 29 October 2000 the first applicant complained to the District Court, stating, among other things, that he had spent more than ten months in detention and requesting release pending trial. This complaint was not examined by the court. 17. On 30 October 2000 the second applicant complained to the District Court and requested to be released pending trial. He stated that he had two minor children, that he had never been prosecuted, that he had a permanent place of residence and that he had no intention of absconding from the authorities. This complaint was not examined by the court. 18. On 10 November 2000 the first applicant complained to the Prosecutor General. In his letter he stated, among other things, that he had been detained for more than ten months and that his requests for release pending trial had not been examined. This complaint was not examined by the authorities. 19. On 16 November 2000 and 12 December 2000 the second applicant complained to the District Court that his detention was unlawful and requested to be released pending trial. In his letter he pointed out that he had problems with his teeth and that adequate dental treatment was not available in the detention centre; that he had a permanent place of residence; that he had two children and an elderly mother to take care of; and that he had no intention of absconding from the authorities. These complaints were not examined by the court. 20. On 3 January 2001 the first applicant complained to the District Court, requesting it to examine the lawfulness of his detention on remand. Referring to the poor conditions of his detention, the general deterioration of his health and the lack of medical assistance in the centre, the applicant requested to be released pending trial. In his complaint the applicant stated that he had family and a child to take care of; that he had a permanent place of residence; that he had been working as a police officer for 15 years; that he had been given positive assessments; and that he had no intention of absconding from the authorities. This complaint was not examined by the court. 21. On 3 January 2001 the second applicant complained to the District Court that his detention on remand was unlawful and requested to be released pending trial. In his letter he pointed out that he had lost several teeth and had other problems with his health, and that no medical assistance had been provided to him in the detention centre. 22. On 12 January 2001 the District Court responded to the second applicant. The letter was very brief and did not contain any judicial decisions. It stated: “Today the court sees no reasons for changing the preventive measure”. 23. On 23 January 2001 and 20 February 2001 the second applicant complained to the District Court that his detention on remand was unlawful and requested to be released pending trial. In his letters he stated, among other things, that he had lost eight teeth; that he had problems with his kidneys; that no treatment was available in the detention centre; that he had a permanent place of residence; that he had two children and an elderly mother to take care of; and that he had no intention of absconding from the authorities. These complaints were not examined by the court. 24. On 31 January 2001, upon completion of the expert assessment, the case file was returned to the District Court and the hearing of the case was scheduled for 20 February 2001. 25. On 20 February 2001 the District Court resumed the hearing of the criminal case. It completed its examination on 2 March 2001, imposing suspended sentences on the applicants and ordering their immediate release. 26. From 24 January 2000 until their release on 2 March 2001 the applicants were detained in cells no. 41, 58, 79, 82 and 105 in the detention centre. 27. All the cells in which the applicants were detained were of identical size, measuring 7.5 sq. m by 2.6 sq. m with four bunks. Both applicants shared their cells with four to six other detainees; therefore, they had to take turns to sleep and were allowed to sleep only between 10 p.m. and 6 a.m. The applicants and their cellmates were not provided with bedding or linen; they had to acquire these items from their relatives and wash and dry them in the cells. 28. The cells were damp; there was mould on the walls and the ceiling. The air was stale and musty. As there was no air ventilation, the cells were hot in summer and cold in winter; the temperature in the cells depended on the season and varied from +10ºC to +35ºC. The windows of the cells were covered with metal grilles supplemented with “eyelashes”, that is, metal strips covering the grille, which let no daylight in. The size of the air vents above the doors was 0.06 sq. m; therefore they could not provide fresh air. The cells were constantly lit with a single 60-watt bulb. Unprotected electric wiring hung from the ceiling and along the walls. The cells were overrun with cockroaches, blood-sucking insects and mice, but the authorities made no attempt to exterminate them, refusing even to give the inmates chloride for disinfection. The cells were not equipped with a source of drinking water. The inmates had to drink water from the tap above the toilet, which was supposed to be used only for flushing. 29. The cells were equipped with toilets which were located 0.5 m away from the dining table and were not isolated from the living area as the centre’s administration forbade putting up curtains. 30. Despite numerous requests by the applicants, they were never provided with bedding, crockery or kitchenware. They were also denied any toiletries, such as soap, toothbrushes, a shaving set or toilet paper, to maintain personal hygiene. In the applicants’ submission, they were able to have a shower only once every 10 to 40 days for up to 12 minutes, and to take a walk of about 50 minutes per day. The duration of walks was sometimes reduced to 20 to 30 minutes. On several occasions, the warders made the applicants choose between having a bath and taking a walk. If the applicants were in a meeting with their lawyers or in court, then they did not get to take the walk. The scarce meals were of very poor quality. 31. The applicants, who suffered from toothache and urolithiasis, were denied proper medical treatment, reference being made to “the absence of specialists and necessary medicine”. In response to the first applicant’s complaints of renal colic, a medical officer supplied him with medicine which was unfit for use, as its shelf life had expired three years earlier. With regard to the second applicant’s complaint of acute colic, the medical officer refused to give him an injection with the medicine and syringes that had been delivered earlier by the applicant’s family. The officer stated that he only used syringes for treatment of seriously ill patients, but he could see no such patients at the moment. The available dental care was provided by a doctor who saw patients only once a week. In response to the applicants’ complaints of acute toothache he suggested that the teeth be extracted without an anaesthetic owing to the lack of medication and necessary equipment for the treatment of cavities. 32. The applicants supported their submission with a number of documents, including eight responses by the administration of detention centre IZ-25/1 to their requests for information lodged in 2006: five responses dated 19 April 2006 (two responses concerning the ventilation of the cells, one response concerning the metal bars on the cells’ windows, one response concerning the control over the sanitary conditions in the cells and one response concerning the absence of the licence to practice medicine by the medical unit of the detention centre at the material time), one response dated 26 July 2006 (the refusal to provide the information concerning the provision of the applicants with individual toiletry kits owing to the absence of the archives), one response dated 18 August 2006 (the refusal to provide information concerning the daily number of inmates in cell no. 79 and their transfers to other cells) and one response dated 22 August 2006 (the refusal to provide information concerning the daily number of inmates in cell no. 41 and their transfers to other cells); the Recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning its visit to the detention facility from 2 to 17 December 2001; three witness statements concerning the conditions of the applicants’ detention in the detention centre provided by Mr A.V. on 7 August 2006, Mr O.L. on 2 August 2006 and Mr E.K. on 3 August 2006; and six statements describing the conditions of detention and the lack of medical assistance in IZ-25/1, drawn up by the applicants and their cellmates, dated 6 and 7 November 2000, 4, 5 and 23 December 2000 and 2 February 2001. The applicants did not submit any medical documents concerning their respective conditions, whether produced during their detention in IZ-25/1 or after their release. 33. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that the applicants had been detained in cells used for the detention of former employees of law-enforcement agencies. 34. Referring to the information provided by the Russian Federal Service for Execution of Sentences, the Government submitted that the first applicant had been detained in cell no. 41, and the second applicant in cells nos. 79, 82 and 105 at the detention centre. 35. The surface area and the height of the ceilings in all the cells were identical and amounted to 8 sq. m and 2.8 m respectively. Each cell was equipped with four bunks. The applicants shared their cells with only three other persons. At the same time, in the same submission the Government further stated that in 2000 to 2001 the detention centre had been overcrowded owing to the high level of criminal activity in the area and the limited capacity of the centre. For these reasons the number of persons detained with the applicants had exceeded the required standard. In spite of these difficulties, each detainee in the applicants’ cells had been provided with a sleeping berth. However, the Government did not specify the exact number of persons detained with the applicants and the nature of the sleeping berth. 36. The size of the windows was in accordance with the relevant regulations and comprised one-eighth of the cells’ floor space, providing the applicants with the possibility of reading and working under natural light. Each window was equipped with an air vent for additional ventilation; another source of ventilation was installed above the door. The temperature in the cells varied from +18ºC to +24ºC. The window air vents and doors were opened for ventilation when the inmates were taken for a walk. All cells were equipped with running water. The levels of temperature and the humidity in the cells, as well as the quality of water, complied with the relevant hygiene and sanitary regulations. No outbreaks of infectious or parasitogenic diseases were registered at the centre at the material time. 37. Each cell in the centre was equipped with bulbs for daytime and night lighting. The night lighting was on from 10 p.m. to 6 a.m. The toilet was separated from the living area by a curtain, which ensured privacy. There were no rodents or insects in the cells as the administration conducted a monthly disinfection; in addition, the staff of the medical centre regularly inspected the cells for insects and rodents. 38. The applicants and other inmates of the detention centre were allowed to take a shower once every seven days; their bed linen was changed at the same time. The applicants were provided with individual bunks, bed linen, crockery and cutlery. They were given individual toiletry kits (containing soap, a toothbrush, a shaving kit and toilet paper). Additional toiletry items could have been provided to the applicants had they submitted a written request, but they had failed to do so. 39. Open-air walks were permitted for one hour a day and there had been no instances of substituting a walk for a bath. 40. The Government submitted that the applicants had been provided with medical assistance in accordance with the relevant regulations, although at the material time the medical unit had not had a licence to practise medicine. The applicants had undergone an initial medical examination on the date of their entry to the detention centre; as a result it had been established that they had been healthy. The medical unit of the detention centre had been supplied with the necessary equipment and medicine. Referring to a number of documents, the Government stated that during the entire period of their detention at the centre, the applicants had neither sought medical help nor complained to the administration about the failure of the medical services to provide them with requested treatment. 41. In support of their position the Government submitted, among others, a number of information statements issued by the administration of IZ-25/1, witness statements of the personnel of the medical unit in IZ-25/1, records concerning the number of inmates in the cells; and copies of some documents from the investigation file. 42. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (Law of 27 October 1960 – “the old CCrP”). 43. “Preventive measures” or “measures of restraint” (меры пресечения) included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89 of the old CCrP). 44. The Russian Constitution of 12 December 1993 established that a judicial decision was required before a defendant could be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96). 45. When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP). Before 14 March 2001, detention on remand 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). 46. The old CCrP distinguished between two types of detention on remand: the first being “during the investigation”, that is, while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the judicial proceedings”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 47. After arrest the suspect was placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels. No extension of detention “during the investigation” beyond eighteen months was possible (Article 97 of the old CCrP). 48. From the date the prosecutor forwarded the case to the trial court, the defendant’s detention was “before the court” (or “during the judicial proceedings”). Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. 49. Under the old CCrP, the detainee or his or her counsel or representative could challenge before a court a detention order issued by a prosecutor, and any subsequent extension order. 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). 50. Upon receipt of the case-file, the judge was to determine, in particular, whether the defendant should remain in custody or be released pending trial (Article 222 § 5 and Article 230 of the old CCrP) and to rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 51. At any time during the trial the court could order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP). An appeal against such a decision lay to a higher court. It was to 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). 52. Under the old CCrP, the duration of the trial was not limited in time. 53. The 1995 Law on the conditions of detention of suspects and accused (закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений») provided that inmates were entitled to medical assistance (section 17). If an inmate’s health deteriorated, the medical officers of the detention facility were obliged to conduct an immediate medical examination and inform him of its results in writing. If the inmate requested to be examined by staff of other medical institutions, the administration of the detention facility was to organise such an examination. If the administration refused, the refusal could be appealed against to a prosecutor or court. If an inmate suffered from a serious disease, the administration of the detention facility was obliged immediately to inform the prosecutor, who could carry out an inquiry into this matter (section 24).
| 1
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train
|
001-106783
|
ENG
|
BGR
|
CHAMBER
| 2,011
|
CASE OF HRISTOVI v. BULGARIA
| 3
|
Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
|
George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
|
5. The applicants were born in 1967, 1968 and 1998 respectively and live in Burgas. 6. Around 1 p.m. on 17 February 2004 someone rang the door bell of the applicants’ apartment. At that time inside the apartment were the first, second and third applicants and the second applicant’s mother, Mrs. D.Zh. 7. Mrs D.Zh. opened the door, following which a group of several masked police officers went in and arrested the first applicant. 8. Subsequently, it was established that the police officers were from the Central Service for Combating Organised Crime (“the CSCOC”) of the Ministry of the Interior and were conducting an operation to investigate individuals suspected of the forging of banknotes. 9. The applicants alleged that the police officers had kicked and beaten the first applicant and threatened the second and third applicants with a gun, shouting that they would kill everybody. The Government disputed these allegations. 10. After the first applicant was arrested and handcuffed, Mrs I.K., an officer from the CSCOC, arrived at the scene. 11. At about 1.30 p.m. the applicants’ lawyer, Mr D.K., and a colleague of his, Mr G. B., also went to the applicants’ apartment but were apparently refused access. 12. At about 2.30 p.m. Mr M.M., an investigator from the Burgas Regional Investigation Service (“the BRIS”) arrived at the scene in order to carry out a search of the applicants’ apartment. The first and second applicants and two certifying witnesses (поемни лица) were present during the search. At about 4 p.m. a prosecutor from the appellate public prosecutor’s office and the director of the BRIS also arrived. 13. The search ended around 5.30 p.m. 14. Immediately after that the police officers took the first applicant to the BRIS where he was charged with aiding and abetting the forging of banknotes and with an attempt to put forged banknotes into circulation. He was remanded in custody. 15. On 18 February 2004 the prison doctor examined the first applicant and noted in the medical register of detained persons (aмбулаторен дневник) that the applicant was healthy. He did not make a note of any bruises or injuries on the applicant’s body. The first applicant was again examined by the prison doctor on 17, 19 and 22 March and 16 April 2004 in connection with hypertonic crisis, for which he was prescribed medication. It appears that on 22 March 2004 an unspecified part of the first applicant’s body was bandaged. It is not clear why this was done. 16. On 23 April 2004 the first applicant was examined by specialists from a civilian hospital (see paragraph 18 below). 17. On 15 April 2004 the first applicant filed an application with the prison authorities stating that during his arrest on 17 February 2004 he had been beaten by police officers and had not been feeling well since then; in particular, he was suffering from headaches, dizziness and pain in the ears. He requested a medical examination by civilian doctors. 18. The request was granted, following which on 23 April 2004 the first applicant was examined in a civilian hospital. The doctors concluded that he was suffering from high blood pressure. The doctors did not note any bruises or injuries on his body. 19. Meanwhile, on 11 April 2004 the second applicant lodged a complaint about the incident with the Sliven regional military prosecutor’s office. She stated that at about 1 p.m. on 17 February 2004 someone had rung the doorbell of the applicants’ apartment. Mrs D.Zh., who had also been residing there, had opened the door and a group of masked police officers had rushed in. The first applicant had come out into the corridor, where he had been knocked down by the police officers. The second applicant had heard shouts and screaming. She had come out into the corridor and had seen that the first applicant was lying on the floor while the police officers were punching and kicking him. The third applicant, five years old at the time, was screaming. One of the police officers had pointed a gun at the second and third applicants and shouted: “Shut up or I will shoot you! Take this child away from here! Make her shut up!” The police officer had blue eyes and a blond moustache. Mrs D.Zh. had started screaming and a female police officer with blond hair and blue eyes had threatened to beat her up. 20. The complaint was received on 15 April 2004 and on an unspecified date thereafter an investigation was opened. 21. During the investigation Mr M.M. and officers from the detention centre were questioned, the case file of the criminal proceedings against the first applicant was examined and information about the relevant entries in the medical register of the detained persons was gathered. There is no evidence that other State officials who had been present when the incident took place were questioned. None of the police officers who had entered the applicants’ apartment and effected the first applicant’s arrest was ever interviewed. Neither the applicants, nor any independent witnesses appear to have been questioned. 22. In a statement given in the course of the investigation, Mr M.M., the investigator with the BRIS, stated that, following orders to carry out a search in the applicants’ apartment, he had arrived there at about 2.30 p.m. The front door of the apartment had been open. Inside the apartment Mr M.M. had seen the first applicant, who was handcuffed and was being guarded by two or three police officers. Two other police officers, two certifying witnesses and the second applicant were present. Mr M.M. had not seen the second applicant’s mother, or the third applicant. Nor had he seen signs of a fight or violence in the apartment or on the first applicant’s face, body or clothes. The first and second applicants had not complained about any ill-treatment. At about 4 p.m. a prosecutor from the appellate public prosecutor’s office and the director of the BRIS had arrived at the scene. 23. In an order of 29 November 2004 a prosecutor from the Sliven regional military prosecutor’s office refused to open criminal proceedings (предварително производство), noting that the police officers had been carrying out a special operation for the arrest of members of an organised criminal group and that there was no evidence that the police officers had used unnecessary force and threats against the applicants. 24. The second applicant appealed, requesting, inter alia, the questioning of Mrs D.Zh. and a neighbour, Mrs D.N., who had allegedly witnessed the incident, the examination of the register for detained persons, where, according to her, the first applicant’s bruises had been noted, and the commissioning of medical expert opinions. She submitted medical documents dated 19 March, 26 March and 13 May 2004 proving that she, her son and daughter, the third applicant, were suffering from stress disorders. 25. The prosecutor from the Sliven regional military prosecutor’s office dealing with the case forwarded the appeal to the Sofia military appellate prosecutor’s office and prepared a report on its merits. In this report, dated 27 December 2004 and addressed to the appellate prosecutor’s office, he proposed that the appeal be dismissed and the criminal proceedings discontinued for lack of sufficient evidence. 26. In particular, he considered that the medical documents concerning the stress disorder of the second and third applicants could not be regarded as evidence of ill-treatment and did not prove that a causal link between their condition and the events of 17 February 2004 existed. He also noted that the allegations that the first applicant had been beaten had not been proved because, first, the applicants had not complained about ill-treatment before the investigators or the prosecutor present during the search and, second, on 18 February 2004 the prison doctor had noted in the medical register that the first applicant had been healthy. As to the request for the questioning of witnesses, the prosecutor considered that Mrs D.Zh.’s testimony would not contribute to the establishment of the true facts and that there was no indication that Mrs D.N. had witnessed the events. He also considered that the applicants had not substantiated the relevance of the copy of the register of detained persons and, therefore, this request should be rejected. 27. On 5 January 2005 a prosecutor from the Sofia military appellate prosecutor’s office upheld the refusal to open a preliminary investigation. He noted, without specifying any further details, that during the first applicant’s arrest the police officers had used physical force and other means of restraint (помощни средства). Nevertheless, he found that there was insufficient evidence of an offence. 28. The second applicant appealed further. 29. On 4 April 2005 a prosecutor from the Chief Public Prosecutor’s Office held that the police officers had indeed imposed some restrictions on the applicants, such as to forbid contact between them and restrict their free movement. These restrictions, however, had been necessary in order to carry out the search. The applicants had not complained about the alleged ill-treatment to the prosecutor or to the investigators who had been present at the search but had instead lodged their official complaint two months after the incident. He found that no excess of power or evidence of an offence had been established and therefore refused to open criminal proceedings. In respect of the complaints about the alleged ill-treatment of the first applicant, the prosecutor rejected the appeal without examining its merits as it had not been lodged by the first applicant himself. 30. The first and second applicants appealed to the Chief Public Prosecutor. 31. On 28 May 2005 a prosecutor from the Chief Public Prosecutor’s Office refused to open criminal proceedings on account of a lack of sufficient evidence of an offence. 32. At a hearing on 14 October 2004, held in the course of the criminal proceedings against the first applicant, Mrs I.K, an officer from the CSCOC who had been present at the incident, stated that by the time she had arrived at the scene, other police officers had already arrested the first applicant, who at the moment of her arrival had been lying on the floor while being handcuffed. Thereafter, the police officers had lifted him from the floor and let him sit down. She contended that she had not seen any of the police officers hit the first applicant; nor had she noticed bruises or injuries on him. She had not been aware of the allegations that injuries on the first applicant’s body had been noted in the register for detained persons. It appears that these statements were made in connection with contentions made by the first applicant in the course of the criminal proceedings against him that he had been ill-treated during his arrest on 17 February 2004. 33. On the same day, another officer from the CSCOC, Mr K.M., testified before the trial court. His testimony did not concern the events of 17 February 2004. 34. On 17 February 2004 the applicant was remanded in custody on suspicion of aiding and abetting the forgery of banknotes and of attempting to put forged banknotes into circulation. 35. On 20 May 2004 he was released on bail. 36. By a judgment of 30 March 2005 the Burgas Regional Curt found the first applicant guilty as charged. It sentenced him to six years’ imprisonment and confiscated the mobile phone he had used for arranging meetings with accomplices and potential clients. 37. The first applicant appealed, claiming, inter alia, procedural breaches, including the refusal of the domestic court to provide him with a translation of a fax from the US secret services which had allegedly been admitted as evidence and mentioned in the judgment. The Burgas Court of Appeal dismissed this request at a hearing on 25 March 2005, finding that the fax had not been included as evidence in the case file. 38. On 13 February 2006 the Burgas Court of Appeal upheld the previous court’s judgment, finding no procedural breaches. 39. The first applicant, who had been legally represented throughout the proceedings, appealed further. 40. By a final judgement of 29 March 2007, the Supreme Court of Cassation acquitted him on the charges of attempting to put forged banknotes into circulation and therefore did not examine his arguments in connection with these charges. It upheld the conviction on the remainder of the charges and the sentence. 41. The applicant submits that he became aware of the final judgment only on 5 April 2007, when the case file was returned to the Burgas Regional Court and placed at his disposal at the court’s registry. 42. Section 78 of the Ministry of the Interior Act of 1997, in force until 1 May 2006, provided that police officers may use force when performing their duties only if they had no alternative course of action in cases of, inter alia, resistance or refusal to obey a lawful order, arrest of an offender who did not obey or resisted a police officer, and attacks against citizens and police officers. Pursuant to section 79(2), the use of force had to be commensurate with, in particular, the specific circumstances and the personality of the offender. Section 79(3) imposed a duty on police officers to protect, wherever possible, the health of the persons against whom force was being used. Section 79(5) forbade the use of physical force against minors. 43. Article 12a of the Criminal Code provides that causing harm to a person while arresting them for an offence is not punishable where no other means of effecting the arrest exists and the force used is necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. 44. Instruction no. I-167/2003 of 23 July 2003, in force between 2003 and February 2007, governed the procedures for detention in custody. Section 2 of the Instruction provided that in the performance of their duties the police organs were under an obligation to respect detainees’ human rights in accordance with the Bulgarian Constitution and the Convention. Section 8 of the Instruction provided that when performing their duties police officers may use force only in accordance with the provisions of the Ministry of the Interior Act. Acts of inhuman or degrading treatment, torture or discrimination were strictly forbidden (section 9). If a police officer witnessed such an act, he or she was under an obligation to prevent its continuation and to inform his or her superior (section 10). 45. Section 159(3) of the Ministry of the Interior Act of 1997 provided that the identity of members of the Specialised Anti-terrorism Squad could not be disclosed. At the material time there were no such provisions in place in respect of members of the CSCOC or other police officers. 46. The new Ministry of the Interior Act, in force from 1 May 2006, provides that the identity of police officers whose duties include taking part in operations aimed at liberating hostages and/or neutralising or arresting persons suspected of having committed particularly dangerous offences must not be revealed (section 91(3)). The Regulations for the Act’s implementation provide that the identity of the members of the Specialised Anti-Terrorism Squad, whose duties include carrying out operations under section 91 of the Act, cannot be disclosed (section 136(2), later superseded by section 150 т (2)). 47. Pursuant to Articles 128, 129 and 130 of the Criminal Code, causing minor, moderate or severe bodily harm to another person is a criminal offence. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one. With the exception of threats (Article 144 of the Criminal Code) Bulgarian law does not provide for the criminalisation as such of acts giving rise to psychological suffering. 48. Persons claiming that they have been ill-treated by police officers can seek damages under the State and Municipalities Responsibility for Damage Act (“the SMRDA”) of 1988. The remedy is described in more detail in the Court’s judgment in the case of Krastanov v. Bulgaria (no. 50222/99, §§ 45-46, 30 September 2004).
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train
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001-60673
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ENG
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GBR
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CHAMBER
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CASE OF D.P. & J.C. v. THE UNITED KINGDOM
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No violation of Art. 3;No violation of Art. 8;No violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
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Christos Rozakis;Nicolas Bratza
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9. The applicants, D.P. and J.C., who are sister and brother, are United Kingdom nationals, born in 1964 and 1967 and living in London and Nottingham, respectively. 10. The applicants’ mother married the applicants’ father in 1964. The first applicant was born on 26 November 1964. Three more sisters were born, T., A. and J. The second applicant, who was J.’s twin, was born on 1 November 1967. 11. The social services of the local authority, Nottingham County Council, were involved with the family from 1967 concerning problems largely connected to severe financial difficulties. In January 1968, the applicants’ mother was sent on “a holiday for tired mothers” and the second applicant and his twin were placed in care for seven months. From July 1967, practical and financial assistance was provided to the family. In June 1968, they were provided with a council house. In 1969, there were indications that the applicants’ father was beating their mother. Allegations later emerged that the father had inflicted physical abuse on the children during this period. 12. In 1970, both parents were committed to prison for six months for electricity meter offences. The first applicant and T. stayed with their maternal grandmother, while the second applicant and two sisters were taken into voluntary care. A. was discharged to the mother’s care on her release from prison. 13. On 20 July 1971, in matrimonial proceedings, the mother was given custody of the applicants and their siblings. The court ordered that the first applicant, T. and A. be subject to the supervision of the local authority under matrimonial supervision orders, pursuant to section 2(1)(f)ii of the Matrimonial Proceedings (Magistrates Court) Act 1960. As the second applicant and J. were still in the voluntary care of the local authority, they were not made subject to supervision orders. 14. The second applicant and J. remained in voluntary care until 19 November 1971 when reunited with their mother. Social services carried out frequent visits to the family thereafter. 15. On 5 January 1972, the mother gave birth to a son M. from a brief relationship. 16. While one medical report noted that the second applicant had suffered from a soiling problem from a very young age and that it had become daily after the birth of M., the social services records gave attention to this problem from 30 April 1973. 17. On 11 February 1974, in the parents’ divorce proceedings, the matrimonial supervision order was varied to include the second applicant and J. 18. According to the applicants, the relationship between the mother and N.C. began in February-March 1974, though he had been acting as a babysitter for the mother for some time previously. N.C. was five years younger than the mother, who was about 28 years old at this time. They were married in September 1974. Social service records noted that the general standards in the home improved following N.C.’s arrival and that the children seemed to be accepting him as a substitute father. Positive comment was made on N.C. adjusting well to the role of husband and father, and that the mother was benefiting from his support in finding more time for the children. It was observed that the second applicant was very wary of N.C. and that his soiling problems were continuing. 19. In 1975, the social services involvement centred on the family’s financial difficulties and the second applicant’s soiling. He was admitted twice to hospital as an in-patient in that connection in 1975 and 1976. 20. During the period from 2 January 1975 to 28 August 1975, there were 46 visits from the relevant social worker. It was noted that N.C. had been supportive of the mother during her pregnancy and had strengthened his relationship with the children and their trust in him. M. was perceived as benefiting from his stabilising influence and J. had grown to rely on him. A. and the first applicant were noted as showing some resentment of N.C. as a permanent authority figure. The first applicant was seen however as having become more lively, with fewer illnesses and learning to trust N.C. The second applicant, alone among the children, had shown no physical improvement, was suffering teasing and taunting at home and at school, and continued to be wary and jealous of N.C. These perceptions were confirmed by different social workers, education officers and health workers. 21. It was noted that the second applicant had stopped soiling during a three-month stay in hospital. When he returned home in about November 1975, the soiling recommenced. The social worker discussed this with the mother and N.C. and considered that it was probably linked to the stress within the home. N.C. was facing charges of arson and there were fears that he would be sent to prison. In January 1976, following discussions at the school, the social worker noted that the second applicant was not soiling himself regularly at school, but rather on the way home from school. 22. On 16 June 1976, the social worker noted, following an arranged holiday: “I was able to inform [N.C. and their mother] of the girls’ excellent behaviour on holiday. This obviously pleased the couple who, despite all their faults, care greatly for their children... N.C. is such a caring figure in this house. I feel a child of his own will some how repay his devotion to his stepchildren.” 23. In mid-1976 N.C. was convicted of arson and sentenced to 9 months’ imprisonment. The social worker observed that the children were extremely upset at his imprisonment. At a multi-disciplinary meeting concerning the second applicant on 23 September 1976, his problems were considered by a team including teachers, psychiatrists, health workers and hospital staff. The notes indicated that no direct cause of the second applicant’s problems was identified and that his mother was considered to be “less caring” than she should be. 24. N.C. returned to the family in December 1976, at about the same time that the second applicant returned from a period in hospital. A new social worker attached to the family commented favourably on N.C.’s conduct, witnessing him cooking a meal for the children and making coffee for everyone. 25. The second applicant continued to receive out-patient treatment from the health service and had monthly psychiatric treatment. The detailed records which exist show no mention or suspicion of child abuse. The soiling had again stopped during his stay in hospital in 1976. It started again when he was at home. 26. On 29 September 1977 S., the daughter of N.C. and the mother, was born (the mother had suffered a series of miscarriages before this birth). Financial difficulties continued for the family, which social services sought to resolve. They continued to monitor the well-being of the children. Particular consideration was given to the second applicant’s continued soiling, though in December 1977 it was observed to have become more infrequent. On 10 November 1977, it was recorded that the second applicant was being bathed by N.C. as he was very averse to washing himself properly. 27. A report of 8 March 1978 noted that J., who was attending a group for young people organised by the social services, was causing concern as her sexual awareness was possibly greater than “normal” in a child of her age. 28. On 29 June 1978, the social worker was called urgently to the children’s school after the children had told the teacher that N.C. had hit them and their mother had knocked the baby on the floor. The incident was investigated. No physical injury was found, and N.C. and the mother had talked about the stress which they had been under. No further action was taken. 29. In August 1978, the case was transferred to another social worker Mr C. who remained with the family until August 1981. His diary for 4 October 1978 noted that he had spoken to the second applicant alone and sought to get him to explain why he had a soiling problem. “He was unable to answer properly but said that he knew he wanted to go to the toilet but for reasons he couldn’t explain he didn’t make the effort. ... [The mother and N.C.] have tried a variety of methods to attempt to modify his behaviour... The only time success has been achieved is when he has been removed from home and obviously this accounts for some suggestions [from the headmaster] that maybe the answer is for him to be removed on a more permanent basis. As stated previously [the mother and N.C.] are very against this and I would prefer to consider all the alternatives before suggesting his removal. In any case, without the consent of his parents it is extremely unlikely that the soiling problem would sufficiently constitute reason for taking him into care.” 30. The records of Mr C. with the family and its individual members made no mention of any reference to sexual abuse. In his statement of 9 September 1999, he had no recollection that the first applicant made any complaint to him. His notes record three examples of conversations during this period: “11.10.78 [The first applicant] had refused to go to school today and I spoke to her about this. I do not feel that there was any real problem about it other than [the mother and N.C.] allowing her to get away with it.” “7.12.79 [the first applicant] claimed that she did not want to go to school because [N.C.] was always getting on to her.” “12.6.80 Talked to [the first applicant ] alone and she was very critical of the way [the foster parents] treated her... After talking to her it became evident that she had recently been home and they had asked her to go back; this was obviously playing on [her] mind and causing her to be increasingly critical of [her foster parents] ...[She] was insisting that she wanted to go back home...” 31. The first applicant was truanting frequently during this period. On 28 May 1980, she was placed in care at both her and her parents’ request. The application for her to be taken into voluntary care signed by Mr C. stated: “The ... family have a long history of contact with the social services department and much support has been given over a number of years. The problems presented are very much part of a total family situation which lacks a depth of relationship and stumbles from crisis to crisis. The symptoms of this situation are that the children (6) present individual problems including incontinence and school truancy and the family are stigmatised within their community as a “problem family”. Efforts have been made by myself and other workers to improve matters, including a “family group” meeting on a weekly basis, but progress is slow and the basic problems remain. Whilst these efforts will be maintained it is considered that [the first applicant] the eldest is now beyond the control of her parents and this is not likely to improve. She is rebelling against her parents and family by constantly truanting from school and frequently staying out until a late hour. I am convinced that her behaviour is very much tied to her unhappiness in the family and feel that a foster placement would allow her to return to an acceptable level of behaviour which she is more than capable of achieving.” 32. The first applicant stayed in foster care for less than a month and on 20 June 1980 was returned at her own and her parents’ request. 33. On 7 July 1980, an incident occurred in the family home, in which A. alleged that she had been hit by her parents during a “great family row”. The mother asked the social services to take her into care, along with the second applicant and J. It was decided in the end to place A. with foster parents and leave the others in the family home. The second applicant and J. were noted as being insistent that they remain at home. A. returned home at her own request and that of her mother and N.C. in September 1980. 34. On 10 November 1980, there was an incident when the first applicant ran away from home because of a family row. She returned the next day. 35. The matrimonial supervision order in respect of the first applicant expired on 26 November 1980 when she reached sixteen years of age. 36. On 12 December 1980, the mother and N.C. had a second child, a son W. 37. From some time at the end of April 1981, the first applicant’s boyfriend, A.T., began to live in the family house. 38. On 29 May 1981, there was an incident reported to the social services when N.C. hit J. Though N.C. admitted that he had caught her on the cheek, he stated that he had not intended to hit her on the face – he had swiped at her in anger as she had been extremely cheeky. As J. was not marked from any injury on the face, the matter was not pursued further. 39. Care proceedings were instituted in respect of A. due to her non-attendance at school. In November 1981, she went to live with her father, where her attendance improved and the proceedings were dropped. 40. On 13 November 1981, the Education Welfare Officer contacted the social services about the second applicant and his twin J. who were “practically hysterical”. The social worker talked to the second applicant in the absence of N.C. and the mother but “without a degree of success”. He arranged to talk to him and his sister alone the next day and told them that if they had problems they should let him know. They mentioned to him some matters, e.g. they were picked on at school and their mother had borrowed money from them (their earnings from a paper round). They promised to go to school and inform him if they had any problems. 41. On 27 November 1981, the social services attended the family home following a call from N.C., alleging that the second applicant and J. had been smashing up the house. It appeared that the first applicant’s boyfriend, A.T., had been fighting with J. Potato knives and pieces of wood had been thrown. It was agreed to place the second applicant and J. in voluntary care. 42. On 29 November 1981, the second applicant and J. ran away from the foster home to the family home. They were returned to the foster home. 43. On about 30 November 1981, N.C. left the family home. 44. On 4 January 1982, the second applicant and J. returned home. 45. On 27 January 1982, the second applicant was placed in a children’s home at the mother’s request. 46. The social services noted N.C.’s return in February-March 1982. 47. In or about March 1982, the first applicant gave birth to a son, the father of whom was her boyfriend A.T. 48. On 23 April 1982, the matrimonial supervision order in respect of the second applicant and J. was varied to a care order. In a report of 2 February 1982 to the court, the social services had described the family situation as follows: “This family have been known to the Local Authority since 1967 and throughout this time have had numerous complex problems... N.C. has always accepted that his role with the children was difficult but he did provide a great deal of support to [the mother] and has tried to help her through the many difficulties that a large family inevitably produce. N.C. has not worked on a regular basis for some time, although he has shown on occasions that he is prepared to work hard over long periods... [N.C. and the mother] appear to have developed a pattern of life which stutters from one crisis to another, but on 30 November 1981 N.C. decided that he could not stand the situation any longer so he left the family home. He did, however, return for a few days in an attempt to reconcile his marriage, but the behaviour and attitude of [the second applicant and J.] towards him was so bad that he returned to his lodgings. N.C. visited his wife regularly and helped to the best of his ability to assist and support his wife... The family seem unable to break out of the trap of financial hardship and this coupled with the relationship difficulties between N.C. and the older children created a weak foundation on which to build a strong family situation. The family have received much support from our department, and others, to strengthen family relationships and advice on financial matters but success has been limited and there is often difficulty in maintaining the status quo. The family have rent arrears of over £1,000 together with gas and electricity arrears. At the present time our department is negotiating with the Electricity Board to try and prevent the supply from being disconnected yet again. In order to encourage the children to relate better to one another and to their parents, they were involved in various group situations supervised by our department. They have invariably shown themselves to be pleasant, co-operative children, who respond to the individual attention lacking at home. Last year a social worker ran a group for the whole family in an attempt to encourage them to work on improving their family relationships and also their relationship with the wider community in which to an extent they are stigmatised. This met with some success but at the end of the group the situation quickly reverted back. ... [The second applicant and J.] have followed the pattern of their two elder sisters for their school attendance has deteriorated... [N.C. and the mother] found themselves unable to make them attend school and their behaviour at home became intolerable so much so that on 27 November 1981 [the mother] asked our department to receive [them] into Voluntary Care for a period of six months. The twins were placed with foster parents ... They started to truant the following week... The mother ... became very depressed and according to [the mother], the neighbours and [the first applicant] the twins took full advantage of their mother’s illness and ran riot in the house and were not adverse to throwing items at the other residents. The situation became so bad that on 27 January 1982 [the mother] telephoned our office and pleaded with us to take the children because she had no control over them whatsoever and was frightened in case she struck out and hurt them. Our department agreed to her request and on visiting the house the twins ran from the house. They were found shortly afterwards and placed separately in childrens’ homes... N.C. believes that if [the second applicant and J.] are not at home there is a good chance that he and [the mother] could reconcile their marriage... The twins could be capable of persuading their mother to take them out of Voluntary Care and the situation would, as on past experience, revert to non school attendance and breakdown of the family unit. [The first applicant] will hopefully be given the tenancy of a council house after the birth of her baby in March and with the twins in care it would seem more likely that [N.C. and the mother] would be able to care for the three younger children in a satisfactory manner. It is for these reasons that our department is asking for the supervision order on [the second applicant and J.] to be varied to a matrimonial care order. This action would ensure that the twins could not manipulate their mother and also have a period of stability both socially and educationally.” 49. Pursuant to the care order, the second applicant remained in the children’s home where he was recorded as making reasonably good progress. He was spending alternate weekends in the family home. 50. In a report dated 13 December 1982 on the second applicant in the children’s home, it was noted that there was no feedback from him on the home situation or how he was relating at home, the second applicant giving no insight into the structure or lifestyle there. An entry in the social services records noted on 14 March 1984 that the second applicant was not happy about going home at weekends but the reason was not known. In an interview with the social worker in the children’s home in April 1984, it was recorded that he would not say why he did not want to go home or if he had problems there. The social worker told him that no-one could help him unless he shared his problems. Other entries in the records indicated that on 8 April 1984 he returned after having had a good weekend at home and that when he went home at Easter he requested permission to extend his stay. 51. In January 1984, M. was made subject of a care order due to his non-attendance at school and placed with foster parents. 52. On 30 April 1984, N.C. was convicted of theft and sentenced to six months’ imprisonment. 53. On 4 June 1984, the second applicant went home on a trial basis. 54. In August 1984, N.C. was released from prison. 55. On 20 September 1984, the care order was discharged on the second applicant. 56. During 1984, the first applicant married. In 1986, the second applicant went to live with her. 57. During 1992, S. (aged fourteen) gave birth to a baby H. and allegations were made that N.C. was the father, though S. in her statements denied this and told the social services that the father was a boy her own age. The social services had been informed of the pregnancy by the mother in April 1992. 58. In November 1992, A. informed a social worker that she had been sexually abused by N.C. from the age of 10 to 17 years. On 26 November 1992, she gave a statement to the police. The police also interviewed J., the second applicant and other family members. A. stated, inter alia, that during a row she and J. had once told her mother about the abuse in N.C.’s presence. N.C. and their mother responded by hitting them. In her statement, J. recalled that the abuse was never discussed between the children and that “it was almost accepted that it happened”. She had tried to drop hints to their mother but did not tell her what was happening as she felt that she would be rejected. She used to misbehave hoping that her mother would give her attention and listen to her. The mother claimed that she had never seen or heard of any abuse occurring. S. denied that N.C. had acted inappropriately with her. 59. The first applicant initially refused to give a statement. In the Child Protection Case Conference minutes of 22 February 1993, it was recorded that though she admitted to having been sexually abused by N.C. she was adamant that she did not wish to become involved or make a formal statement. 60. On 19 February 1993, N.C. was interviewed by the police. He was charged with counts of rape, indecent assault and of inciting the second applicant to assault J. and J. to assault the second applicant. 61. On 22 February 1993, an Initial Child Protection Case Conference placed S., H. and W. on the Child Protection Register. It noted that the allegations of abuse in the home had come to light on 4 November 1992 when a health worker informed the social services of A.’s disclosures of abuse by N.C. It now appeared that at least four of the children had been abused by N.C. The mother had told the social services that J. was a liar and denied that any of the children had disclosed any sexual abuse to her. An Education Officer was noted as stating that he had always been of the opinion that any abuse was physical, and a social worker recalled A. telling him that N.C. had used totally inappropriate/sexualised language to the children. These entries also appeared: “In the opinion of [B.H.], from reading the files, it would appear that there have been many concerns about the behaviour of the children within the family which may indicate abuse.” “[G.T.] the officer in charge of the Spring Street Family Centre reported that [A.] had discussed issues of sexual abuse with a social work student some years previously but nothing specific was noted in the records. ...” 62. On 31 January 1994, the social services were informed by the second applicant that N.C. had been staying with the mother and visiting the house regularly in breach of bail conditions. N.C. was arrested the next day and remanded in custody. 63. On 16 February 1994, the first applicant made a statement to the police. 64. Around 22 March 1994, N.C. admitted the allegations made by both applicants. On 25 May 1994, he pleaded guilty to 2 counts of attempted rape and 3 counts of indecent assault (on A., J. and the second applicant). He was sentenced to 9 years’ imprisonment, for which one attempted rape and 2 indecent assaults on the first applicant were also taken into consideration. 65. According to their statements, the applicants had suffered the following abuse: 66. From 1972, when she was about eight, to about 1980, the first applicant was sexually abused on a regular basis by N.C. This occurred once a week usually on Saturdays (when her mother went out) and on any other occasion when she and N.C. were alone in the house. N.C. regularly required the first applicant to masturbate him. On at least two occasions he required her to place a nail in the end of his penis. He used to bath her (and her sisters) until the age of thirteen and during that time he was touching her (and her sisters) in her vagina and breasts. He raped her at the age of 14. At the age of 15 he forced her to take his penis into her mouth and then forced her to have sexual intercourse with him. The abuse continued until about 1980 when the first applicant’s boyfriend moved into the family home. 67. The first applicant claimed that she was acting against her will and she felt grossly humiliated in her own eyes. She stated that she was too afraid to tell her mother. When the first applicant, for example, made an attempt on her life in front of her mother after she was raped by N.C., her mother responded by simply laughing. The first applicant did not complain of the rape knowing that this would entail a gynaecological examination. 68. From about 1978, when he was about ten, the second applicant was sexually abused by N.C. on a regular basis, i.e. on Friday, Saturday or Sunday evenings when his mother was out. This continued until January 1981 (though according to a psychiatric report the second applicant claimed that he was sexually abused from the age of six to sixteen), when the second applicant, at the age of fourteen, began absenting himself from school. He was taken into voluntary care by the local authority because his mother was unable to cope and placed in a children’s home. Even then, however, the second applicant was sexually abused during weekend visits at home. N.C. would masturbate the second applicant and tell him to masturbate him. On occasions N.C. would require the second applicant to touch his twin sister J. on the vagina and would require J. to masturbate the second applicant. The second applicant did this unwillingly and because N.C. threatened him that there would be trouble if he did not. The second applicant did not report to his mother for fear of not being believed and from fear of N.C. The applicants’ mother, although it was not clear whether she was aware of N.C.’s conduct, did not take any interest when the children were distressed. The second applicant continued to be abused until he began to live independently. 69. Both applicants suffered extreme humiliation from the activities in which they were required to engage. Both had extreme difficulty in reporting the matter to the police and were only able to reveal the full extent of the abuse after several statements. Both applicants have suffered long term depression and trauma as a result of the abuse and have submitted psychiatric reports in respect of this. As a consequence of her abuse, the first applicant has been diagnosed as suffering from depression on and off throughout her life, which on occasions could last for months. She suffered from a personality disorder associated with feelings of low self esteem, anxiety, anger, aggression, social phobia and to some degree agoraphobia. She has had nightmares for most of her life and has experienced suicidal thoughts. Over the past few years she has suffered from irritable bowl and migraine headaches which have been diagnosed as being partly due to stress suffered because of her abuse as a child. She has been attending weekly counselling since January 1994. 70. The second applicant has also suffered psychological problems as a result of his treatment which were exacerbated after the police investigation into his sexual abuse. His personality has been adversely affected. He experienced mood swings and suffers from anxiety, anger and aggression. He had little enjoyment of life and, as a consequence of his condition, he had less energy and found it hard to concentrate. He experienced difficulty in forming relationships. He has suffered from epilepsy since the age of 19 which is said to complicate his psychological condition. The second applicant has various minor criminal convictions for theft and like offences prior to 1993 which could, it is argued, be a result of the abuse suffered. 71. The applicants claimed that they had informed the social services of the abuse as follows. 72. For the first time, in 1978, both applicants and their sisters told the visiting social worker that their stepfather hit them. On another occasion during 1978, the first applicant reported to the new social worker, Mr C., that she and the second applicant were being assaulted by their stepfather. On that occasion the applicants’ mother was asked by the social services whether any abuse was taking place but denied the allegations. No action was taken by the social services department. 73. After continued sexual assaults, the first applicant states that on one of her regular meetings at the social worker’s office she was asked why she was being difficult at home and running away. She told them that N.C. was hitting her and doing “other things” to her and she wanted to leave home. The first applicant stated that N.C. raped her on 16 September 1978, which was the day her half sister, S., was born. She claims that the social services did not believe her when she told them of the “things” that were going on and thought that she was jealous of the birth of the baby. 74. During the police investigation, the second applicant states that he was informed by the police for the first time that there was information on the social services files which indicated that the social services department had been aware of the sexual abuse in N.C.’s household. 75. On 5 May 1994, the second applicant made an application to the Criminal Injuries Compensation Board, as a victim of a crime, which made him an offer of compensation of 1,500 pounds sterling (GBP), which he accepted. On 12 July 1994, the first applicant also made an application to the Board which made her an offer of compensation of GBP 3,000 which she did not accept. 76. On 24 June 1994, the second applicant’s solicitors wrote to the social services department asking for information about the files relating to him. On 13 July 1994, solicitors for the first applicant wrote to the social services department complaining of the abuse and requesting information. They were referred to solicitors for the local authority’s insurers. On 27 September 1994, the applicants’ solicitors wrote to those solicitors complaining that the “Local Authority failed to protect both of our clients from persistent abuse in particular perpetrated by [N.C.].” 77. On 11 October 1994, the applicants applied for legal aid. The Legal Aid Board refused legal aid on 24 October 1994, finding that there were no reasonable grounds for taking proceedings. The appeal against the refusal was dismissed on 9 February 1995. 78. In or about February or March 1995, the second applicant approached the local authority personally with a complaint, and was told that he could see his social services file with third party information removed. Two days later, this offer was withdrawn. 79. On 21 March 1995, the local authority solicitors wrote to the first applicant’s solicitors: “We regret that the principle of Public Interest Immunity means that the Council will be unable to voluntarily disclose information relating to your client.” 80. On 29 September 1995, the local authority solicitors wrote a similar letter in relation to the second applicant’s complaints. 81. On 23 February 1996, legal aid was granted to the second applicant for counsel’s advice in respect of an action against the local authority. 82. On 19 August 1996, the second applicant brought proceedings in Nottingham County Court claiming damages for negligence and breach of statutory duty under the Children and Young Persons Act 1969 and/or the Child Care Act 1980 by the local authority and the social workers employed by them, acting as their servants and agents because they failed inter alia: – to carry out a proper investigation of the complaints now or of the alleged abuse at the time, – to remove him from the care of N.C. and his mother. The second applicant alleged that the local authority owed him a duty of care, had acted in breach of that duty and breached their statutory duty, causing him loss and damage. He claimed breach of statutory duty in that the local authority failed to grant him access to the records held by them, contrary to section 1 of the Access to Personal Files Act 1987. 83. The local authority applied to strike the case out on the basis that the second applicant had no reasonable cause of action. 84. On 20 January 1997, the application was struck out by the District Judge as disclosing no cause of action following the cases of X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and H v. Norfolk County Council ([1997] 1 FLR 384), in which it was held that there was no cause of action in negligence or for breach of statutory duty against a local authority in respect of any alleged failure by the local authority to discharge its statutory duties relating to child care. 85. In the light of the decisions of X. and Others v. Bedfordshire County Council and H v. Norfolk County Council and the judgment of Nottingham County Court, counsel advised both applicants that they could not pursue domestic proceedings against the County Council. 86. In or about September 1997, the local authority gave the second applicant sight of edited extracts from the social services files. 87. In an affidavit dated 9 September 1999, the social worker, Mr C., stated that he had no recollection of having any conversation with the first applicant in which she had said that N.C. had sexually abused her. He remembered the family very well, and when he left the area in 1981 he did not recall that any accusations of sexual abuse had been made. He had made detailed running records of his involvement with the family and if there had been any suggestion of sexual abuse by N.C. he was confident that it would be in those records. 88. Prior to the coming into force of the current legislation, the Children Act 1989, on 14 October 1991, the local authority’s duty in respect of child care was governed by the Child Care Act 1980. 89. Sections 1 and 2 of the Child Care Act 1980 provided: “1. It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care. 2(1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen – (a) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost; (b) that his parents or guardian are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and (c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section”. 90. Section 17 of the Children Act 1989 has since provided, inter alia: “17. Provision of services for children in need, their families and others (1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) - (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2 ... (10) For the purposes of this Part a child shall be taken to be in need if – (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired or further impaired, without the provision for him of such services; or (c) he is disabled ... (11) ... in this Part ‘development’ means physical, intellectual, emotional, social or behavioural development; and ‘health’ means physical or mental health.” 91. Part III of the Children Act 1989 deals with local authority support for children and families. The policy of the Act is made clear by paragraph 7 of Part i of Schedule 2, which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children. Section 20 provides that “20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of – (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. ... (4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.” 92. Part V of the Children Act 1989 deals with the protection of children. Section 47 provides as follows: “47(1) Where a local authority – ... (b) have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare ... (8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take action (so far as it is within their power and reasonably practicable for them to do so).” 93. In England and Wales, there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there are a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. 94. Negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; and, – that it is fair, just and reasonable to impose liability on the defendant. 95. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 96. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 97. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson stated inter alia: “I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ... The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case. First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent. Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244: ‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’ Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children. The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored. If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these. Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.” 98. More recently, the House of Lords gave judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. 99. Lord Browne-Wilkinson, in his judgment in that case, commented as follows on the operation of the duty of care: “(1) Although the word ‘immunity’ is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence. (2) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered. (3) In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.” 100. At the relevant time, Order 18 rule 19 of the Rules of the Supreme Court provided that a claim could be struck out if it disclosed no reasonable cause of action. This jurisdiction has been described as being reserved for “plain and obvious cases”, in which a claim was “obviously unsustainable”. 101. In applications to strike out, the courts proceeded on the basis that all the allegations set out in the claimant’s pleadings were true. The question for the courts was whether, assuming that the claimant could substantiate all factual allegations at trial, the claim disclosed a reasonable cause of action. 102. The striking out procedure, now contained in the Part 3.4(2) of the Civil Procedure Rules in force since 1999, is aimed at securing speedy and effective justice, inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others. By means of this procedure, it can be determined at an early stage, with minimal cost to the parties, whether the facts as pleaded reveal a claim existing in law.
| 1
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train
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001-72596
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ENG
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AUT
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ADMISSIBILITY
| 2,006
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FREILINGER and OTHERS v. AUSTRIA
| 4
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Inadmissible
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David Thór Björgvinsson
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The applicants, Monika and Sascha Freilinger and Hildegard Hofmann, are Austrian nationals. They were born in 1959, 1980 and 1967, respectively. They live in Lengenfeld and Gobelsburg, respectively. They were represented before the Court by Mr H. Malek, a lawyer practising in Krems. The respondent Government were represented by their agent Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Upon the applicants’ request the Krems Regional Court sitting as a Labour and Social Court (Landesgericht als Arbeits-und Sozialgericht) on 27 December 2000 and on 9 January 2001, respectively, ordered the F company to pay (Zahlungsbefehl) the first applicant 1,056.81 EUR, the second applicant 6,276.46 EUR and the third applicant 4,247.87 EUR. On 2 February 2001 these orders became enforceable. On 13 February 2001 the Regional Court opened bankruptcy proceedings concerning the F company. This decision was published in the bankruptcy data base (Insolvenzdatei) in the internet on 14 February 2001. On 19 February 2001 the applicants requested the Vienna District Court (Bezirksgericht) to enforce the above-mentioned payment orders by selling the F company’s movable property (Fahrnisexekution) and by granting the applicants a lien on outstanding accounts which the F company held against E.F., F.S. and I.S. (Forderungsexekution). On 21 February 2001 the District Court granted this application and ordered enforcement of the payment orders (Exekutionsbewilligung) under Sections 249 and 294 of the Enforcement Act (Exekutionsordnung). It appears that the District Court apparently disregarded Section 10 of the Bankruptcy Act (see Relevant domestic law and practice) when it granted this request. On 6 March 2001 E.F., F.S. and I.S., who were debtors of the F company and against whom that company had outstanding claims, appealed against this decision. They submitted that the enforcement order was unlawful as bankruptcy proceedings against the F company had been opened on 13 February 2001 and that, following the decision to open bankruptcy proceedings, they were no longer allowed to honour individual request for enforcement. The appeals were not transmitted to the applicants. At the same day the bankruptcy trustee, referring to Section 10 of the Bankruptcy Act (Konkursordnung), requested the District Court to cancel enforcement proceedings. With decisions of 26 March and 30 March 2001 respectively, the Vienna Regional Court remitted the file back to the District Court as it found that the appeals of 6 March 2001 needed improvement. On 9 and 19 April 2001 respectively these decisions were served on the applicants’ counsel. E.F., F.S. and I.S. subsequently remedied the defects of the appeals. The appeals were not transmitted to the applicants. With decisions of 3 August, 28 September 2001 and 11 October 2001 the Regional Court rejected the appeals concerning the enforcement of the order to pay by selling the F company’s movable property, as it noted that E.F., F.S. and I.S. had no legal standing in this regard, because they were not affected by that part of the order. It granted, however, the appeals concerning the enforcement of the order to pay by granting a lien on the F company’s outstanding accounts against E.F., F.S. and I.S. It referred in this regard to Section 10 of the Bankruptcy Act. The court further noted that, according to relevant case-law and doctrine, it was for the person requesting an enforcement order to substantiate already in the application why enforcement under the Enforcement Act should be admissible irrespective of the opening of the bankruptcy proceedings. In the present case, the applicants had not made such submissions in their applications. The Krems Regional Court had opened bankruptcy proceedings against the F company on 13 February 2001. This decision had been published in the bankruptcy data base (Insolvenzdatei) on 14 February 2001. The enforcement order had been issued only on 21 February 2001 and was therefore unlawful. The court further noted that the applicants had filed their request for enforcement of the payment order on 19 February 2001, although bankruptcy proceedings had already been pending at this time. It therefore ordered them to reimburse the costs of the appeal proceedings, i.e. 196.88 EUR to be paid by the first applicant, 368.50 EUR to be paid by the second applicant, and 294.97 EUR to be paid by the third applicant. The enforcement of judicial decisions is regulated by the Enforcement Act (Exekutionsordnung), which provides for the satisfaction of a pecuniary claim by seizure of individual assets of the debtor (Einzelexekution). However, after the commencement of bankruptcy proceedings against the debtor, individual satisfaction of a creditor gives way to collective satisfaction on a quota basis of all creditors with pecuniary claims (Generalexekution). The execution of an individual claim under the Enforcement Act is in principle no longer possible. Accordingly, Section 10 of the Bankruptcy Act stipulates that, after the commencement of bankruptcy, no right to a lien or to a payment may be obtained from a court in respect of assets forming the bankrupt’s estate on account of a claim against the bankrupt. According to Section 2, bankruptcy shall take effect from the day following its official publication.
| 0
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train
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001-101978
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ENG
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UKR
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CHAMBER
| 2,010
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CASE OF KRYVITSKA AND KRYVITSKYY v. UKRAINE
| 3
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Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
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Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
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5. The applicants, mother and son, were born in 1945 and 1975 respectively and live in Kyiv. 6. On 16 July 1992 Mrs Y.B., born in 1908, officially registered the first applicant as a permanent tenant in her flat and in March 1993 signed it off to her in a will, purportedly in exchange for the first applicant being her live-in aide. On 5 January 1993 the second applicant, then a minor, was also officially registered as a permanent resident in Mrs Y.B.'s flat as his mother's family member. The applicants moved into the flat, took care of the charges and maintenance fees and did some renovation work. 7. On 23 August 1994 the Kyiv City Administration promised to provide the applicants with a new flat in view of the fact that a decision had been taken to demolish the building of which Mrs Y.B. was co-owner. That decision, however, was never complied with. 8. In 1995 and 1996 the second applicant's wife and two children from her previous relationship, born in 1988 and 1989, were also registered as permanent tenants in the same flat. Subsequently the second applicant adopted the children (in 1996) and divorced their mother (in 1998). 9. On 18 December 1998 Mrs Y.B. died. 10. After her death, the first applicant learned that in 1996 and 1998 Mrs Y.B. had drafted two more wills, signing the same flat off to other individuals, and on 12 March 1999 instituted judicial proceedings seeking to have those two wills annulled. The first applicant claimed that since 1995 Mrs Y.B. had been under severe stress resulting from her participation in an ongoing court dispute with Mrs G.D., a co-owner of the building, and, consequently, her mental health and judgment had deteriorated. 11. On 26 February 2001 a panel of experts conducted an assessment of Mrs Y.B.'s mental health and found that in March 1993, December 1995 and October 1998 Mrs Y.B. had suffered from organic psychiatric disorders giving rise to moderate intellectual and memory impairment and paranoia. Consequently, during these periods she had been unable “to understand the meaning of her actions or control them”. 12. As a result of those conclusions, on 3 April 2001 the Leningradsky District Prosecutor joined the first applicant's proceedings on behalf of the State, seeking annulment of all Mrs Y.B.'s wills, including the one drafted in 1993 in the first applicant's favour. 13. On 8 June 2001 the Leningradsky District Court of Kyiv allowed the prosecutor's claim. The parties' appeals against this judgment were eventually dismissed as inadmissible on procedural grounds and it became final. 14. On 29 April 2002 the Svyatoshynsky District Tax Administration registered the State's (the municipality's) title to the late Mrs Y.B.'s flat as intestate estate. 15. On 28 May 2002 the Tax Administration instituted court proceedings against the applicants, seeking to annul their tenancy registration as lacking any legal basis on account of the impaired judgment of the former flat owner when authorising it. The Administration further sought to evict the applicants, claiming that their occupancy impeded the authorities' ability to sell the flat at the highest possible price. 16. The second applicant lodged a counterclaim, seeking to be acknowledged as a lawful tenant of the flat. He maintained, in particular, that he and his mother had occupied it for a considerable period of time in good faith and on lawful grounds and took care of maintenance fees and renovations. In addition, the family had no alternative housing and their eviction would compromise the interests of raising two minor children, who remained in his custody after their mother had left the family. 17. Subsequently the Svyatoshynsky District Minors Service intervened in the proceedings, requesting the court to consider the interests of the two minor children in retaining the tenancy. 18. During the hearing of 15 July 2002 the Svyatoshynsky District Court of Kyiv requested Mr Ts., one of the experts who had conducted the post-mortem assessment of Mrs Y.B.'s mental state in February 2001, to assess whether she had been legally competent to authorise the first applicant's tenancy on 16 July 1992. On the same day Mr Ts. delivered a statement that, based on the results of the post-mortem psychiatric assessment of Mrs Y.B.'s condition in 1993, it was certain that on the date at issue she could not understand the meaning of her actions or control them. 19. On the same date the court issued a judgment allowing the claim by the Tax Administration. The relevant part of the judgment read as follows: “The court, having heard the explanations of the parties, having examined case-file materials, considers it necessary to allow the initial claim ... and to reject the counterclaim, regard being had to the following: On 16 July 1992 and 5 January 1993 respectively, Y. B., who could not understand the meaning of her actions or control them, authorised the registration of Kryvitska G.S. and Kryvitskyy Y.F. as tenants of the part of the building belonging to her ..., having thus concluded a tenancy agreement. On 16 December 1998 she died, and 2/400 of the building, which had belonged to her ..., became property of the State represented by the Svyatoshynskyy District Tax Administration of Kyiv ..., which on 28 May 2002 sought protection of the owner's rights, which should not be infringed by Kryvitskyy Y.F. and Kryvitska G.S., who have occupied the premises, regard being had to the above, arbitrarily, and should be evicted without provision of other housing. In light of the above Kryvitskyy Y.F.'s claim of right to use the premises cannot be allowed ... Regard being had to the above and referring to Articles 55 and 555 of the Civil Code of Ukraine, Articles 4 and 48 of the Law of Ukraine “On Property”, Articles 116 and 191 of the Housing Code of Ukraine, Articles 15, 30, 62, 75 and 203 of the Code of Civil Procedure of Ukraine, the court HAS DECIDED: To allow the initial claim ...” 20. The applicants appealed. They alleged, in particular, that the expert assessment of Mrs Y.B.'s mental health was flawed and superficial, that at the moment of concluding their tenancy agreement they had acted in accordance with the law and in good faith and, under the circumstances of their case, could not have foreseen that the law concerning arbitrary occupation of the premises would be retrospectively applied to them. They further alleged that their eviction would render them homeless and infringe their Constitutional right to respect for their home and, moreover, the second applicant's eviction would jeopardize the rights of the two minor children, who remained in his sole custody. 21. On 13 August 2002 the Minors Service informed the Kyiv City Court of Appeal that the children actually lived in the flat and were in the second applicant's custody, since their mother had left to work in Russia. 22. On 16 October 2002 the Kyiv City Court of Appeal dismissed the applicants' appeal, endorsing the first-instance court's reasoning. It also noted that according to an address bureau certificate, the children and their mother were not registered as tenants in the flat at issue. The judgment became binding for enforcement. 23. The applicants appealed in cassation, maintaining, in addition to their previous arguments, that the courts had wrongly refused to admit their evidence that the children had remained resident in the flat. On 8 May 2003 the Supreme Court dismissed the applicants' request for leave to appeal in cassation, having found that the lower courts had properly assessed the evidence before them and interpreted the applicable law. 24. On 12 November 2002 Mr Zh., the bailiff assigned to the case, requested the Svyatoshynsky District Court to clarify its judgment of 15 July 2002 in view of the fact that the children were found to be actually living in the flat. 25. On 14 November 2002 the President of the Svyatoshynskyy District Court wrote a letter to the Chiefs of the Kyiv City Department of Justice and the Svyatoshynsky District Department of Justice, stating that, having requested clarification of an already clear judgment, Mr Zh. had intentionally protracted its enforcement, thus grossly interfering with State interests. He further requested the addressees to prevent such applications in future. 26. On an unspecified date the applicants requested that their eviction be replaced by monetary compensation. 27. On 28 December 2002 the court dismissed the Bailiffs' and the applicants' requests. 28. In the meantime, on 5 December 2002 the applicants were evicted. According to the applicants, they had to request housing of various relatives and friends and had no stable place of residence following their eviction. In 2006 the second applicant bought a house. 29. On several occasions the applicants requested the Tax Administration to inform them when the flat would be put on sale, as they were interested in trying to purchase it and received responses that they could be eligible for a purchase only if all co-owners of the building waived their statutory privilege. Subsequently they were informed that in April 2003 the flat had been sold to Mrs G.D., a co-owner of the building. 30. Relevant provisions of the Civil Code read as follows: “An agreement concluded by a citizen who, although legally capable, at the moment of its conclusion was unable to understand the meaning of his actions or control them, can be annulled by the court ...” “Inheritable property shall be transferred to the State as a successor: ... 2) in the event that a predecessor has no heirs either by virtue of the law or of a testament; ...” 31. Relevant provisions of the Housing Code read as follows: “... Persons who arbitrarily occupy residential premises shall be evicted without provision of other housing.” “Housing disputes shall be decided in accordance with the legislation ... by a court, arbitration court, mediation or comrades' court, as well as other competent bodies.” 32. Relevant provisions of the Law “On Property” read as follows: “1. The owner of a property shall possess, use and dispose of that property at his discretion. 2. The owner of a property shall be entitled to carry out any actions with respect to that property, which are not in conflict with the law ... ...” “1. Ukraine shall legislatively ensure equal conditions for the protection of property rights for individuals, organisations and other owners. 2. The owner of a property may demand that any infringements of his rights are ceased, even where those infringements are not connected with the deprivation of the possession, and compensation for resulting damage. ...”
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train
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001-91288
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ENG
|
POL
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CHAMBER
| 2,009
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CASE OF GOSPODARCZYK v. POLAND
| 4
|
No violation of Article 6 - Right to a fair trial
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Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
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5. The applicant was born in 1948 and lives in Zielona Góra, Poland. 6. On 26 October 1998 the applicant purchased a house and a plot of land located in Niedoradz in the Otyń municipality, for which he paid 28,684 Polish zlotys (PLN). 7. In December 1999 the applicant discovered that the plot in question was 36 sq. m smaller than the size specified in the contract. 8. On an unspecified date in 2002 the applicant lodged a claim against the municipality with the Zielona Góra Regional Court, seeking PLN 412,666 in compensation for the alleged difference between the actual size of the property and the one declared in the notarial deed. He claimed that due to the fact that the plot was in fact smaller he could not construct a special sanitary tank there and consequently could not open a bakery, which he had originally planned to do. He also sought exemption from the entire amount of court fees which were set at PLN 22,233.30. The applicant claimed that his monthly income was only an invalidity pension of PLN 449.51. He submitted that after paying rent for his cooperative flat, his net income amounted to PLN 200. 9. The Regional Court requested the applicant to supplement his declaration of means. Subsequently, the applicant submitted that he owned a house in Niedoradz which according to him had a value of PLN 120,000, and that he had a cooperative flat in Zielona Góra, a plot of land (570 sq. m), a small retail outlet and a van (valued at PLN 10,000) used for temporary work. He claimed that he had purchased the Niedoradz property using his savings and family loans, and that he intended to use it to create employment for him and his family. He also informed the court that he had invested PLN 92,000 of his own money in the house. 10. On 22 July 2002 the Regional Court refused his application for exemption from court fees. It held, in so far as relevant: “Pursuant to Article 113 § 1 of the Code of Civil Procedure exemption from court fees may be sought by a party who is unable to bear them without entailing a substantial reduction in his or her standard of living. The plaintiff does not satisfy this requirement. It is evident to the court that the plaintiff has a substantially higher income than the declared pension which he knowingly does not disclose, in that his retail outlet and his van must generate profits. These profits must be substantial because otherwise he could not have a cooperative flat and three other properties and could not invest nearly PLN 100,000 in other business projects and maintain them. The plaintiff continuously conceals his real profits and they are substantial, because nobody could believe that he lives on PLN 200 per month. Exemption from court fees is a privilege serving to legally protect the indigent, and the plaintiff is a very affluent person in Polish terms”. 11. The applicant appealed against that decision and pleaded that he was in an exceptional situation. He submitted that he had acquired the Niedoradz property, which was the subject of his dispute with the municipality, and had invested PLN 92,000 in it with a view to conducting business activity there. However, he could not execute his business plans since the property did not conform to certain unspecified requirements and as a result his financial situation had worsened. He further submitted that he had to pay back a loan of PLN 40,000 obtained from his brother for renovation of the house. He produced a statement signed by his brother which attested that the applicant had received the loan and had not paid it back as of 1 August 2002. 12. The applicant further submitted that he had a cooperative flat, but that he was in arrears of rent in the amount of PLN 3,532.35. In addition, he maintained that his and his wife’s retail outlet was making losses. He produced their joint tax return which attested that in the 2001 tax year he had sustained a loss of PLN 14,628.23. Furthermore, the applicant claimed that he was financially supported by his family, in particular his mother who provided him with PLN 600 each month. He produced a statement from his mother to that effect. 13. On 14 August 2002 the Poznań Court of Appeal upheld the contested decision. It held, in so far as relevant: “The appeal should be considered unfounded. In particular, the first-instance court was right when holding that the applicant’s declaration of means was unreliable. In that declaration of means the applicant did not state, inter alia, that he was conducting a business activity, and he explained that circumstance only in the appeal proceedings. It is also not difficult to notice the differences between the applicant’s declared income and the value of his assets. It is a well-established principle in the case-law that being an owner of a[n immovable] property excludes the possibility of granting exemption from court fees (judgments of the Supreme Court of 23 October 1934, no. C II 1441/34 and of 1 February 1937, no. C II 2379/36). The applicant can pay the court fees for his action since he has considerable assets and given that he has recently, as he claims, invested PLN 124,000 in one of his properties. What is more, the fact at the origin of the dispute, namely that the property acquired by the applicant from the municipality is in fact smaller than declared in a notarial deed, has been known to the applicant since 1999. Thus, he could have made savings with a view to funding his litigation.” 14. Consequently, the applicant was summoned to pay the court fees for proceeding with his claim against the municipality. On 21 October 2002 the Zielona Góra Regional Court returned the applicant’s statement of claim since he had not paid the fees in question. The applicant appealed against that decision. However, he was informed that his appeal would not be considered until he had paid PLN 4,446.70 in court fees. 15. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).
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train
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001-58735
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ENG
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TUR
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GRANDCHAMBER
| 2,000
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CASE OF SALMAN v. TURKEY
| 1
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Preliminary objection dismissed (non-exhaustion);Violation of Art. 2 with regard to death in custody;Violation of Art. 2 with regard to failure to carry out an effective investigation;Violation of Art. 3;Violation of Art. 13;Violation of former Art. 25;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
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Luzius Wildhaber
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6. The facts of the case, particularly concerning events on 28 and 29 April 1992 when Agit Salman, the applicant's husband, was detained by police and subsequently died, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 1 to 3 July 1996 and in Strasbourg on 4 December 1996 and 4 July 1997. The witnesses included the applicant; her son Mehmet Salman; her brother-in-law İbrahim Salman; Ahmet Dinçer and Şevki Taşçı, police officers who apprehended Agit Salman; Ömer İnceyılmaz, Servet Ozyılmaz and Ahmet Bal, custody officers on duty over the period of Agit Salman's detention; İbrahim Yeşil, Erol Çelebi and Mustafa Kayma, interrogation team officers who took Agit Salman to the hospital; Tevfik Aydın, the Adana public prosecutor who attended the autopsy; Dr Ali Tansı, the doctor at the Adana State Hospital who declared that Agit Salman was dead; Dr Fatih Şen, who conducted the autopsy; Dr Derek Pounder, Professor at Aberdeen University, a forensic expert called by the applicant, and Dr Bilge Kirangil, a member of the Istanbul Institute of Forensic Medicine which had reviewed the autopsy carried out by Dr Fatih Şen. The Commission also requested an expert opinion on the medical issues in the case from Professor Cordner, Professor of Forensic Medicine at Monash University, Victoria (Australia) and Director of the Victorian Institute of Forensic Medicine. 7. The Commission's findings of fact, which are accepted by the applicant, are set out in its report of 1 March 1999 and summarised below (Section A). The Government's submissions concerning the facts and the expert medical reports are also summarised below (Sections B and C respectively). 8. Agit Salman, the applicant's husband, worked as a taxi driver in Adana. At the time of events in this case he was 45 years old. He had no history of ill-health or heart problems. 9. On 26 February 1992 Agit Salman was taken into custody by police officers from the anti-terrorism branch of the Adana Security Directorate. İbrahim Yeşil was the officer in charge of interrogating him. Agit Salman was released at 5.30 p.m. on 27 February 1992. He told the applicant and their son Mehmet that he had been beaten and immersed in cold water during the night of his detention. He remained off work for two days with a chill. 10. During an operation conducted to apprehend a number of persons suspected of involvement with the PKK (Workers' Party of Kurdistan), police officers came to the applicant's house in the early hours of 28 April 1992, looking for Agit Salman. He was on a wanted list for activities which included attending the Newroz (Kurdish New Year) celebrations on 23 March 1992 and involvement in starting a fire and in an attack on the security forces in which one person died and four were injured. However, Agit Salman was out working in his taxi. 11. Police officers located Agit Salman at a taxi rank at Yeşilova at about 1 a.m. on 28 April 1992. Assistant Superintendent Ahmet Dinçer and officers Şevki Taşçı and Ali Şarı took him into custody. The apprehension report of the officers made no mention of any struggle or the necessity to use force to place Agit Salman in the police car. There was an inconsistency between their written statements later given to the public prosecutor on 22 May 1992 when they stated that some pushing and pulling might have occurred and their evidence to the Commission. In their oral evidence to the Commission delegates, Ahmet Dinçer and Şevki Taşçı were adamant that they had to lead Agit Salman by the arms to the car but this did not involve the use of force and he did not receive any knocks or marks in the process. Mehmet Salman heard from the taxi drivers at the taxi rank that his father had not resisted arrest, nor had two taxi drivers who were asked to give statements by the public prosecutor heard that Agit Salman had resisted arrest. 12. Agit Salman was not taken to a doctor before being placed in a cell in the custody area. The Commission found that it was not established that he had suffered any injury on arrest or that he showed any signs of ill-health or respiratory difficulties. 13. The custody officer on duty, Ömer İnceyılmaz, entered Agit Salman's arrival in the custody area as occurring at 3 a.m. on 28 April 1992. There was no information recorded or evidence accounting for the time which elapsed between his apprehension, which took place according to the arresting officers' report at 1.30 a.m., and his registration in the custody area at 3 a.m. 14. Assistant Superintendent İbrahim Yeşil was the leader of the interrogation team assigned to Agit Salman. His team included officers Erol Çelebi, Mustafa Kayma and Hasan Arinç. 15. Two other suspects are known to have been apprehended in connection with the same operation: Behyettin El, taken into custody on 25 April 1992, and Ferhan Tarlak, detained also on 28 April 1992. A third suspect, Ahmet Gergin, was also detained in the custody area in relation to the offences under investigation. İbrahim Yeşil took a statement from Behyettin El and Ahmet Gergin on 29 April 1992. Behyettin El stated that he had been interrogated before the arrival of Ferhan Tarlak, which would have been on or before 28 April 1992. 16. No records existed of the movements of detainees to and from their cells, for example, noting the times of interrogations. The police officers concerned in the events denied in their statements to the public prosecutor taken between 18 and 25 May 1992 that Agit Salman had been interrogated during his detention, in particular, as no interrogations would take place before the operation was completed. İbrahim Yeşil, Mustafa Kayma and Hasan Arinç gave oral evidence to the same effect to the Commission's delegates. The Commission found that their assertion that Agit Salman had not been questioned during the twenty four hours following his apprehension to be implausible, inconsistent and lacking in credibility (see the Commission's analysis of the evidence, Commission's report of 1 March 1999, §§ 271-78). Taking into account also the other evidence, it found that Agit Salman had been questioned by the interrogation team during his period of detention. 17. In the early hours of 29 April 1992 İbrahim Yeşil, Mustafa Kayma, Hasan Arinç and Erol Çelebi brought Agit Salman to the Adana State Hospital. Dr Ali Tansı examined him immediately. His heartbeat, breathing and other vital functions had stopped, cyanosis had developed on the face and ears and the pupils were dilated. He declared that Agit Salman was dead on arrival and concluded that he had died fifteen to twenty minutes previously. 18. According to a statement signed by the police officers who had said they had brought Agit Salman to hospital at 2 a.m. on 29 April 1992, the custody officer had informed them at 1.15 a.m. that Agit Salman was ill. The suspect told them that his heart was giving him trouble and they took him without delay to the State Hospital emergency ward. 19. On 29 April 1992 Dr Fatih Şen, the forensic doctor at Adana, examined the body in the presence of the public prosecutor. The examination record noted that there were two dried 1 cm by 3 cm graze wounds at the front of the right armpit, a fresh 1 cm by 1 cm graze on the front of the left ankle and an old traumatic ecchymosis measuring 5 cm by 10 cm on the front of the chest. There were no injuries from a pointed instrument or firearm. He concluded that an autopsy was necessary to discover the cause of death. The documents indicate that the autopsy was carried out the same day. Samples of organs were sent for analysis. 20. At about 1 p.m. on 29 April 1992 Mehmet Salman was brought by the police to the Security Directorate, where the public prosecutor informed him that his father had died of a heart attack. İbrahim Salman went to the forensic department on 30 April 1992 to identify the body. The body was released to the family who undertook to bury it the day before May Day. The family washed the body at the cemetery. İbrahim Salman saw bruises and visible marks in the armpits. There were marks in the back resembling holes. There were marks on one foot, which was swollen. Four colour photographs of the body were taken on behalf of the family. 21. On 21 May 1992 Dr Fatih Şen issued the autopsy report. It repeated the physical findings of the examination record, this time describing the ecchymosis on the front of the chest as purple. The internal examination disclosed that the lungs weighed 300 g each and were oedematic and that the heart, weighing 550 g, was larger than the norm. The brain was oedematic. There was some indication of arteriosclerosis in certain vessels and the parietal layer of the myocard adhered tightly to the heart. The sternum was fractured and the surrounding soft tissues revealed fresh haemorrhage which could have been caused by attempted resuscitation. Reference was made also to the histopathological report of 18 May 1992, which found chronic bronchitis in the lungs, arteriosclerotic changes narrowing the lumen in the coronary arteries and chronic constructive pericarditis, chronic myocarditis, myocardial hyperplasy and hypertrophy in the heart. The toxicology report of 14 May 1992 found no abnormalities. The report concluded that the actual cause of death could not be established and suggested that the case should be referred to the Istanbul Forensic Medicine Institute. 22. On 22 May 1992 the photographs taken by the family were handed over to the public prosecutor. 23. Statements were taken by the public prosecutor from the interrogating team (İbrahim Yeşil, Hasan Arinç, Mustafa Kayma and Erol Çelebi) on 18 May 1992. Statements were taken from the arresting officers Ahmet Dinçer, Ali Sarı and Şevki Taşçı and the custody officers Ahmet Bal, Servet Ozyılmaz and Ömer İnceyılmaz on 22 May 1992. Statements were also taken from Behyettin El and Ferhan Tarlak on 8 May 1992, the applicant on 26 May 1992, Temir Salman (the father of Agit Salman) on 29 May 1992, Hasan Çetin and Abdurrahman Bozkurt, two taxi drivers, on 29 and 30 June 1992 respectively and from Dr Ali Tansı on 30 June 1992. 24. On 15 July 1992 the Istanbul Forensic Medicine Institute issued its opinion, which was signed by seven members of the First Specialist Committee, including Dr Bilge Kirangil. This report recalled that Agit Salman had been pushed and shoved during his arrest, that he had become unwell before his interrogation or, as was claimed, that he had died during interrogation. It deduced from the witness statements that he had been in his cell until he complained that his heart was giving him trouble, at which point he was taken immediately to hospital. The report took up the findings of the internal and external examination conducted at the autopsy. It concluded that, apart from small, fresh, traumatic abrasions on the ankle and the old purple ecchymosis on the front of the chest, no other traumatic injuries were identified. The fresh haemorrhage around the sternum could be attributed to a resuscitation attempt. There was no evidence to suggest that he had died from any direct trauma. The superficial traumas on his body could be attributed to his resistance and struggle on arrest or his being put in the police vehicle, although they could have been inflicted directly. They were not independently fatal. The relatively large size of the heart, the sclerosis in the heart arteries and the signs of an old infectious disease on the membrane and muscles of the heart, pointed to a long-standing heart disease. The report concluded that, although the deceased had lived and worked actively prior to his arrest, his death within twenty-four hours of being apprehended could have been caused by cardiac arrest connected with neurohumoral changes brought about by the pressure of the incident in addition to his existing heart disease. 25. On 19 October 1992 the Adana public prosecutor issued a decision not to prosecute. He stated that at about 1.15 a.m. on 29 April 1992 Agit Salman had informed officers that his heart was giving him trouble and he had been taken to Adana State Hospital, where he died. According to the forensic report, Agit Salman had had a long-standing heart disease, any superficial injuries could have occurred during his arrest and death was the result of a heart attack brought on by the pressure of the incident and his heart problem. There was no evidence justifying a prosecution. 26. On 13 November 1992 the applicant appealed against the decision not to prosecute, claiming that Agit Salman had been interrogated and had died under torture. 27. On 25 November 1992 the President of the Tarsus Assize Court rejected the applicant's appeal. 28. On 22 December 1992 the Minister of Justice referred the case to the Court of Cassation under Article 343 of the Code of Criminal Procedure. On 16 February 1994 the Court of Cassation quashed the non-prosecution decision and sent the case back to the Adana public prosecutor for the preparation of an indictment. 29. In an indictment dated 2 May 1994, ten police officers (Ömer İnceyılmaz, Ahmet Dinçer, Ali Sarı, Şevki Taşçı, Servet Ozyılmaz, Ahmet Bal, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil, Hasan Arinç) were charged with homicide in case no. 1994/135. Hearings took place before the Adana Assize Court on, inter alia, 27 June, 26 September, 31 October and 1 December 1994. The defendants pleaded not guilty. Oral statements were given by six of the ten police officers (Ahmet Dinçer, Şevki Taşçı, Mustafa Kayma, Erol Çelebi, İbrahim Yeşil and Hasan Arinç) maintaining their written statements and denying any ill-treatment of Agit Salman. The court also heard Temir Salman, the father of Agit Salman, the applicant and Dr Ali Tansı, the doctor on duty in the emergency ward at Adana State Hospital. A written statement was obtained from Behyettin El. 30. In its decision of 26 December 1994, the Adana Assize Court found that it could not be established that the defendants had exerted force or used violence on Agit Salman or threatened him or tortured him in order to force him to confess. The superficial traumas on his body could have derived from other causes, for example, when he was arrested. The forensic reports indicated that Agit Salman had died from his previous heart condition being compounded by superficial traumas. However, there was no evidence proving that the traumas were caused by the accused. It acquitted the defendants on the ground of inadequate evidence. 31. The applicant, who had been a party to the proceedings as a complainant, did not appeal against the acquittal which became final on 3 January 1995. 32. The Commission found, in light of the written and oral evidence, the photographs and the medical opinions given by Professor Pounder and Professor Cordner, that Agit Salman had died rapidly, without a prolonged period of breathlessness. There were marks and abrasions on his left ankle for which there was no explanation and there was bruising and swelling on the sole of the left foot, which could not have been caused accidentally. These were consistent with the application of falaka (see paragraph 71 below). The bruise in the centre of the chest had not been dated with any accuracy by histopathological means and had not been shown to be dissociated from the broken sternum. These injuries together could not have been caused by cardiac massage. The Commission also disbelieved the oral evidence of officers İbrahim Yeşil, Mustafa Kayma and Erol Çelebi that cardiac massage had been applied, noting that this had first been mentioned as having occurred when evidence was given before its delegates in July 1996, four years after the events. The Commission concluded that Agit Salman had been subjected to torture during interrogation, which had provoked cardiac arrest and thereby caused his death. 33. On 24 January 1996 the applicant was summoned to the anti-terrorism branch of the Adana Security Directorate. A statement was taken by officers, on which her thumbprint was placed. It was headed “Concerning her application for help to the European Human Rights [institutions]” and began, “The witness was asked: You are asked to explain whether you applied to the European Human Rights Association, if you asked for help and whether you filled in the application form. Who mediated in your application?” The statement purported to set out her explanations as to how she came to submit her application to the Commission. She confirmed that the legal aid documents had been filled in by her. In her oral evidence, which the Commission found credible and substantiated, the applicant claimed that she had been blindfolded, kicked and struck at the Directorate and that the officers had told her to drop the case. 34. The applicant was summoned a second time. A report dated 9 February 1996, signed by police officers, listed details of the applicant's income and expenditure and confirmed her declaration of means. On this or another date, she was taken before the public prosecutor and again asked about her statement of means. No threats were made during that interview. 35. The Government referred to the evidence given by the police officers, the autopsy report and the report of the Istanbul Forensic Medicine Institute, and the oral evidence of Dr Bilge Kirangil before the Commission's delegates. 36. Agit Salman had suffered from a pre-existing heart disease. When he was arrested, he sustained minor injuries. The bruise on his chest, which was purple and therefore old, predated his arrest. During his detention in the custody area at Adana Security Directorate, he was not interrogated as the operation had not yet been completed. At about 1 a.m., he called for assistance and told the custody officer that his heart was giving him trouble. The custody officer sought help from the officers of the interrogating team who were waiting nearby for the next stage of the operation. These officers put Agit Salman, who was having difficulty breathing, in a police van and drove him to the hospital. On the way, they stopped the van and Mustafa Kayma briefly applied mouth-to-mouth resuscitation and cardiac massage. They took Agit Salman to the emergency ward, where they were told that he had died. 37. The autopsy and the report of the Istanbul Forensic Medicine Institute established that Agit Salman had not suffered any major trauma, that the broken sternum was caused by cardiac massage and that he had died of natural causes, despite all possible assistance being given. 38. In her evidence before the Commission delegates, Dr Bilge Kirangil had expressed the opinion that the bruise on the chest was at least 2 to 3 days old and unrelated to the broken sternum and that the oedema in the brain was indicative of a prolonged period of breathlessness prior to death. No findings could be drawn from the photographs, which were amateur and of poor quality. She did not consider the lack of proper forensic photographs to be a major deficiency. There had been no findings of ill-treatment in the Institute's report since there was no evidence of such. Cardiac arrest as in this case could be triggered by hormonal or environmental factors, such as extremes of temperature. If a direct blow had caused the bruise and fractured the sternum, she would have expected to see contusion and ecchymosis on the back surface of the sternum and bruising on the front and back surface of the right ventricle of the heart. While the lungs of an individual who had been breathless for thirty minutes could generally be expected to increase to a weight of 500 to 600 g, this was not necessarily the case but depended on the individual (see the summary of Dr Kirangil's evidence, Commission's report, §§ 233-41). 39. Professor Pounder was Professor of the Department of Forensic Medicine at the University of Dundee, and was, inter alia, a Fellow of the Royal College of Pathologists, Overseas Fellow of the Hong Kong College of Pathologists, a Fellow of the Faculty of Pathology of the Royal College of Physicians of Ireland and a Fellow of the Royal College of Pathologists of Australasia. The report was drafted, inter alia, on the basis of the domestic autopsy documents and statements and testimony of witnesses. It may be summarised as follows. 40. The autopsy findings indicated that Agit Salman suffered from pre-existing natural heart disease, namely, chronic inflammation involving pericardial adhesions, which was old and inactive. In the distant past, he might have suffered from rheumatic heart disease, which would have manifested itself at that time as an acute febrile illness, without necessarily any symptoms of heart involvement. The heart was enlarged, weighing 550 g, showing that the heart muscle had increased to compensate. 41. A heart with a weight greater than 500 g might give rise to sudden unexpected death at any time as a consequence of an abnormality of heart rhythm. This might be precipitated by physical or emotional stress or occur apparently spontaneously without any precipitating event. 42. In addition to the heart disease, there were four injuries. At the front of the right armpit, there were two abrasions, each 3 cm by 1 cm and described as dried and parchmented. It was not apparent whether they had been dissected to discover if there was any associated bruising but, given the description, it was reasonable to accept they were post-mortem changes. There were two grazes measuring 1 cm by 1 cm on the front of the left ankle and described as fresh and bloody. It appeared that these must have been caused during the period of police detention, but their location and size did not point to any specific cause. There was a 5 cm by 10 cm bruise in the centre of the chest, which was described as old and purple in colour. The sternum was fractured, with fresh bleeding in adjacent soft tissues. 43. The bruise to the chest directly overlay the fracture to the sternum. The haemorrhage around the fracture suggested that the fracture was produced before and not after death. The production of such a fracture would be sufficient to induce an abnormality in the rhythm of the underlying heart and thus cause a sudden death. Consequently, the fracture of the sternum represented a possible cause of death. While, theoretically, a fracture could be produced by a fall, it would be unusual, requiring impact on a raised object or edge and it would be associated with injuries to other parts of the body. Cardiac massage could also produce a fracture if very considerable force was applied. The fracture could also have been produced by a blow. In that case, bruising of the skin would be expected, even if the death which followed was rapid. Although Dr Fatih Şen characterised the bruise on the chest as old and by implication as resulting from a different event, his own view was that, given that the bruise directly overlay the fracture, it would require compelling medical evidence to conclude that they were unrelated. Dr Şen's opinion on the age of the bruise was based on the subjective, naked-eye assessment of the colour. However, the bruise was described as purple, which was entirely consistent with a fresh bruise. A bruise 2 to 3 days old would have been expected to have developed a yellowish tinge. A simple histopathological test would have clearly established whether it was a fresh bruise or an old bruise. Such a bruise would not have occurred as a result of the hand pressure applied during cardiac massage. His opinion was that, given the contiguity of the bruise and fracture and the absence of any clear evidence that the bruise occurred on a separate occasion, the bruise and fracture occurred at the same time as a result of a blow, which precipitated an abnormality of heart rhythm. 44. The autopsy findings, in particular the weight of the lungs (300 g each, that is, close to the minimum) indicated that the death was very rapid rather than prolonged. In individuals dying slowly with gradual heart failure, a lung weight of 500 to 600 g was common and up to 1,000 g could occur. This was the result of accumulation of fluid in the lungs consequent on the failure of the pumping action of the heart and was expressed clinically by breathlessness and difficulty in breathing. Deaths involving instantaneous collapse were associated with light lung weight as in this case. A relatively slow death would also be associated with a congested liver. Thus, the autopsy findings and histopathological examination weighed heavily against the possibility of a prolonged dying period with symptoms of breathlessness and pointed rather towards a rapid death. 45. As regarded the autopsy procedures, these were seriously deficient. Although the only two theoretical possibilities for the fracture were external heart massage or a blow, no steps were taken to establish conclusively whether or not massage had been performed. The statement in the autopsy report that it could have been caused by massage did not represent a full and frank statement and could be misread to imply that Dr Şen had knowledge that such resuscitation was attempted whereas he did not. He should have distinguished fact from speculation. There was also a need to include as much descriptive detail as possible concerning the bruise, fracture and heart disease and in this respect the detail was manifestly insufficient. 46. In the addendum of 26 November 1996, there was an analysis of the four photographs, which were described as being of poor quality. However, the photograph of the soles of the feet nonetheless showed a distinctive purple-red discolouration of the sole of the left foot, with mild swelling. The right little toe had a white glistening band at its base. The discolouration of the instep and sole of the left foot was strongly suggestive of bruising with associated minor swelling and was not consistent with post-mortem gravitational pooling of blood. Bruising of this extent could not be produced as a result of post-mortem injury and injury in such a location was unlikely to be caused by a fall sustained while the victim was alive. Therefore the injury was strongly suggestive of one or more blows to the foot. The mark to the right little toe was strongly suggestive of a ligature mark, although there was no congestion such as to suggest tight application of a ligature while the victim was alive; nor was the appearance suggestive of the passage of electricity. Neither possibility could be excluded and the mark was unusual. 47. The red injuries to the front of the left ankle, taken with the injuries to the sole of the left foot, suggested that the ankles were restrained by a mechanism across the front of both ankles and that, so restrained, the person was struck on the sole of his left foot. 48. The marks in the right armpit were not clearly shown. Their position, alignment and colouration were not what would normally be expected of post-mortem artefactual injury and raised the possibility of an electrical contact mark produced while the victim was alive. Combined with the unusual marking to the right little toe, it raised the suspicion of the use of electricity with one terminal tied round the little toe and the other terminal applied to the right armpit. Whether or not the marks were electrical burns could have been established by histopathological examination. 49. The photograph of the back showed post-mortem artefactual staining, with white areas of contact pallor. There were distinct marks, including a bright red abrasion at the spine at waist level and above this two dark reddish marks. Above these was a horizontal line of pink bruising or abrasion. All these could be post-mortem injuries, caused by the manipulation of the body over a rough or cutting surface. They could also have been caused before death. To distinguish the two would have required dissection. 50. The photographs indicated that the autopsy dissection was inadequate in that the back was not dissected, nor were the sole of the left foot or the injuries to the ankle. It was not clear whether the injury to the armpit was dissected. They also indicated that the description of the body in the autopsy was incomplete. 51. This report was drawn up by Professor Cordner, instructed by the Commission's delegates (see paragraph 6 above), on the basis of the domestic medical evidence, the witness testimonies, the reports of Professor Pounder and the photographs supplied by the applicant. 52. As regarded the photographs, the variation in colour or mottling on the foot represented bruising. He considered that the photograph was too blurred to conclude that the white glistening band on the right little toe was associated with a ligature nor could he reach any conclusion that the marks in the right armpit were the result of the application of electrical devices. On the legs, he noted, in addition to the marks which could correspond to the abrasions on the left ankle, small areas of reddening on the front and inner side of the right ankle. He agreed with Professor Pounder's findings on the back and noted in addition other areas of redness. Without the benefit of a dissection and/or histology of the dissection, the nature of the marks was uncertain. They could have been caused before death or be a post-mortem phenomenon. Bruising of the soles of the feet was relatively unusual and represented at least moderately severe force. Beating on the sole of the foot could cause such bruising. A person with such an injury would not be able to walk without at least an obvious limp. 53. As regarded the ageing of the chest bruise, recent authors in forensic medicine agreed that caution should be exercised. It was not practicable to construct an accurate calendar of colour changes as was done in earlier textbooks as there were too many variables. If the purple colour of the chest bruise was relied on to distinguish its age from the “fresh” haemorrhage around the sternal fracture, this was an invalid conclusion. The materials did not permit a distinction in age to be drawn between the two. A recent study issued to show the level of disagreement amongst authors concluded that the only point of agreement was that a bruise with identifiable yellowing was more than 18 hours old. Thus, the purple bruise could be fresh (that is, less than 24 hours old) but could be older. 54. Concerning the broken sternum, there had been no complaint of chest pain so one could infer that it occurred shortly before or around the time of death. His view was that there was a coincidence of two injuries (the bruise and the fracture) which could not be distinguished in age, or there was just one injury. If there was no chest bruise when Agit Salman was taken into custody, the issue was relatively easily resolved. Most pathologists would tend to regard them, prima facie, as one injury or state that there was a rebuttable presumption that they were one injury. As regarded the possibility of the bruising and fractured sternum being caused by an attempt at resuscitation, significant chest bruising was rare in this context. Sternal fractures caused by cardiopulmonary resuscitation were usually associated with fractured ribs and not with surrounding haemorrhage or overlying bruising. If the chest bruise and fracture with accompanying haemorrhage were the result of one trauma, it was not one associated with a resuscitation attempt. A fracture from a fall onto a flat surface would be unusual. A heavy direct fall onto a relatively smooth broad protrusion could cause such an injury but he had no recollection of having seen this as an isolated accidental injury (that is, without injuries to other parts of the body occurring at the same time). A blow from a fist, knee or foot could also cause such an injury. 55. Lungs with oedema sufficient to be regarded as a sign of heart failure and to cause breathlessness of twenty to thirty minutes weighed more than 300 g. The lung weights in this case fitted with a substantially more rapid death. The oedema found in the brain was not significant, the weight of the victim's brain being slightly under the average brain weight for a man of his age. 56. The finding of underlying heart disease was undisputed. In his view, the best explanation for the death was as follows. Before he died, Agit Salman sustained significant traumas to the sole of his left foot and to the front of his chest, causing bruising and prima facie fracturing the sternum and causing a surrounding haemorrhage. Fear and pain associated with these events resulted in a surge of adrenalin increasing the heart rate and raising blood pressure. This put a severe strain on an already compromised heart, which caused cardiac arrest and a rapid death. Alternatively, the compression of the chest associated with the fracturing of the sternum fatally disturbed the rhythm of the heart without leaving observable damage. The weakness of this opinion lay in the conclusion that the chest injuries represented one trauma rather than two, and this depended partly on circumstantial factors and could not be completely resolved. However, even allowing for the possibility that they were separate injuries, the chest bruise could still be regarded as fresh and as having occurred while in custody, in which case the formal cause of death would be the same, namely, cardiac arrest in a man with heart disease following the occurrence of injuries to the left foot and chest. If the fractured sternum was regarded as due to an attempt at resuscitation, the cause of death would only change if it was concluded that the bruise occurred prior to being taken into custody. 57. The critical task of an autopsy in this case was to evaluate the circumstances in which it was proposed that this man died, in particular, whether it was a natural death in custody or not. In this evaluation, the age of the chest bruise was critical. Even allowing for Dr Şen's view of the age based on colour, the autopsy should have been conducted in a way which allowed another pathologist at another time to come to his or her own view. Important observations had to be justified objectively. In the absence of photographs, histology was the obvious way for Dr Şen to establish the truth of his view. The lack of proper photographs had also seriously impeded the investigation and evaluation of this case. Deficiencies also appeared in the insufficient subcutaneous dissection to seek out bruises not visible externally and the absence of a histological examination of the lesions critical to the proper evaluation of the circumstances of the death. 58. Professor Cordner had met Professor Pounder professionally. He had not met either Dr Kirangil or Dr Şen. 59. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 60. Under the Turkish Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences. It is also an offence for a State employee to subject anyone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 61. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 62. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 63. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 62 above) also applies to members of the security forces who come under the governor's authority. 64. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 60 above) or with the offender's superior. 65. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 66. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 67. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 66), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 68. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). 69. The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third periodic visit took place at the end of 1992, involving a visit to Adana Security Directorate. Further visits took place in October 1994, August and September 1996 and October 1997 (the latter two of which involved a visit to police establishments in Adana). The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. 70. The CPT has issued two public statements. 71. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, palestinian hanging, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention. On its second visit in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long, 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”. 72. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegations' forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police, and in particular of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey. 73. The “Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions” adopted 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 noted that an abridged examination or report was never appropriate in potentially controversial cases and 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.” 74. In part 2(c), it stated that adequate photographs were crucial for thorough documentation of autopsy findings. Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report.
| 1
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train
|
001-60748
|
ENG
|
SVK
|
CHAMBER
| 2,002
|
CASE OF BAKOVA v. SLOVAKIA
| 3
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
|
Nicolas Bratza
|
7. The applicant claimed restitution of real property which had been expropriated from her in 1967. 8. On 15 September 1992 the Košice-mesto Land Office (Pozemkový úrad) granted the applicant’s claim. The Land Office established, after an inspection of the land in question, that it had never served the purpose for which it had been expropriated which was a relevant reason for its restitution within the meaning of Section 6 (1) (m) of the Land Ownership Act of 1991. The educational institution which possessed the land challenged the decision. 9. On 19 April 1993 the Košice Regional Court (Krajský súd) quashed the administrative decision as it considered the reasons for it to be insufficient. The Regional Court instructed the administrative authority to establish all relevant facts of the case and to hear the parties. 10. On 29 December 1997 both the applicant and a representative of the institution using the land in question met with officials of the Košice 2 District Office (Okresný úrad) to which the case fell to be examined. In the course of the meeting the relevant facts of the case were examined. 11. On 6 February 1998 the Košice 2 District Office delivered a new decision by which it dismissed the applicant’s claim. It held that the plot served the original purpose of its expropriation within the meaning of Section 6 (1) (m) of the Land Ownership Act of 1991 and that the applicant had received compensation for it. The decision was signed by the head of the land, agriculture and forest department of the District Office. 12. On 10 March 1998 the applicant requested judicial review of this decision. She complained that the Land Office had failed to establish the relevant facts correctly, that it had decided arbitrarily and that there had been no hearing in the case. 13. On 12 June 1998 the Košice Regional Court upheld the District Office’s decision. The court found, with reference to the documents included in the file of the District Office, that the plot in question served the purpose of its expropriation since a social institution used it as a playground for handicapped children. With reference to Article 250f of the Code of Civil Procedure, the Regional Court decided in camera. 14. Pursuant to Section 6 (1) (m) of Act No. 229/91 on Adjustment of Ownership Rights to Land And Other Agricultural Property (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku – “the Land Ownership Act”), real property which was expropriated with payment of compensation shall be restored if it still exists and provided that it has never served the purpose for which it was expropriated. 15. The lawfulness of decisions delivered by administrative authorities can be examined by courts in accordance with Part V of the Code of Civil Procedure which governs the administrative judiciary. 16. Article 250f, as in force at the relevant time, entitled the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there is no doubt as to whether the administrative authority established the facts correctly, and the point at issue was a question of law. 17. In accordance with Article 250m (3), the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed. 18. Pursuant to Article 250q (1), when the court reviewing an administrative authority’s decision does not decide without an oral hearing pursuant to Article 250f, it may take such evidence as is necessary for reviewing the decision at issue. 19. Under Article 250r, if the court quashes the decision of the administrative authority, the latter, when taking a new decision, is bound by the legal opinion expressed by the court. 20. Act No. 222/1996 on the Organisation of the Local State Administration (Zákon o organizácii miestnej štátnej správy a o zmene a doplnení niektorých zákonov) governs, inter alia, the status and competence of district offices. 21. Sections 1 (1) and 4 (1) provide that district offices are State authorities in charge of local administration of the State which are financed from the State budget. 22. Section 5 (2) entitles the district offices to decide at first instance on the rights and obligations of natural or legal persons in the context of administrative proceedings. 23. Pursuant to Section 8 (2), the head of a district office is appointed and revoked by the Government. 24. Section 8 (7) provides that the heads of departments of district offices are appointed by the head of the district office. 25. Pursuant to Section 9, the departments of district offices shall act and decide in the context of administrative proceedings autonomously unless the law otherwise provides. 26. Section 11 (1) provides that district offices are directed and controlled by the Government when carrying out State administration. 27. In its finding No. PL.ÚS 14/98 of 22 June 1999 the Constitutional Court found that Article 250f of the Code of Civil Procedure was contrary to the Constitution and also to Article 6 § 1 of the Convention. As a result, this provision ceased to be effective from the moment of its publication in the Collection of Laws on 14 July 1999.
| 1
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train
|
001-102396
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,010
|
BALAGUROV v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
The applicant, Mr Aleksandr Leonidovich Balagurov, is a Russian national who was born in 1972 and lives in Syktyvkar. The Russian Government (“the Government”) were represented by Mr G. Matushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 January 2004 the applicant sued the Government of the Chechen Republic for monetary benefits on account of serious bodily injuries caused by a terrorist attack during his military service in the government’s headquarters in Grozny. On 4 June 2004 the Syktyvkar City Court found in the applicant’s favour and awarded him 53,048.88 Russian roubles (RUB) in compensation. On 3 July 2004 the judgment became final but the respondent authority delayed its enforcement. On 23 December 2005 the Syktyvkar City Court awarded the applicant an additional amount of RUB 7,279.19 in compensation for the inflation loss resulting from the enforcement delay (“indexation”). That judgment became final on 11 January 2006. On 12 October 2006 the total sum of RUB 60,327.00 was credited to the applicant’s bank account. On 15 January 2009 the Court delivered the Burdov (no. 2) pilot judgment cited above. It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. It also ordered the Russian Federation to grant adequate and sufficient redress, within one year from the date on which the judgment became final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who had lodged their applications with the Court before the delivery of the present judgment and whose applications had been communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court. The present case was communicated to the Government on 22 April 2008. The Court’s proceedings in the case were thus adjourned until 4 May 2010 pending the implementation of the pilot judgment (see Burdov (no. 2), cited above, § 146, and point 8 of the operative part). The applicant was informed accordingly. On 19 March 2010 the Government confirmed that both court awards had been paid to the applicant on 10 October 2006 and submitted a unilateral declaration aimed at resolving the issues raised by the application. The authorities acknowledged the excessive duration of the enforcement of the judgment of 4 June 2004 in the applicant’s favour and declared that they were ready to pay the applicant ex gratia the sum of 1,430 euros (EUR) as just satisfaction. On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below). By letter of 20 May 2010 the applicant considered the Government’s remedial offer insufficient and declared his intention to avail himself of the new remedy. On 5 July 2010 the Supreme Court of the Komi Republic granted the applicant’s claim for compensation under the Compensation Act. The court acknowledged a violation of his right to enforcement of the judgment of 4 June 2004 within a reasonable time and ordered the Ministry of Finance of the Chechen Republic to pay the applicant RUB 70,000.00 (EUR 1,750) in compensation. The court took account of the enforcement delay, the nature of the award, its significance for the applicant, his state of health and the efforts made to obtain the payment. The court furthermore noted that the absence of domestic enforcement regulations during the relevant period and the complexity of the State’s budgetary system were not the reasons for denying compensation. At the same time, the court held by reference to the Court’s case-law that the period of 5 months from January to June 2004 during which the applicant’s case was examined by the Syktyvkar City Court did not breach his right to a hearing within a reasonable time. The judgment became final on 18 July 2010 and the writ of execution was transmitted to the respondent authority on the following day. By letter of 12 July 2010 the Government withdrew their unilateral declaration of 19 March 2010, considering that the applicant was no longer a victim of the violation due to the latest judgment in his favour. The court award was credited to the applicant’s bank account on 31 August 2010. On 30 April 2010 Russian Parliament adopted a Federal Law, no. 68-ФЗ, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010. The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant’s own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities’ fault (Section 1, § 3). The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant’ Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement. A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3). All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the present Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).
| 0
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train
|
001-71810
|
ENG
|
TUR
|
CHAMBER
| 2,005
|
CASE OF SIMSEK v. TURKEY
| 4
|
Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
|
David Thór Björgvinsson
|
4. The applicant was born in 1941 and lives in Freising, Germany. 5. On 8 February 1996 the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) issued an order of expropriation for a plot of land belonging to the applicant in Dinar, a district attached to Afyon, following the earthquake which happened on 1 October 1995. A committee of experts assessed the value of the plot and the amount was paid to the applicant. 6. On 2 April 1997 the applicant brought an action for additional compensation before the Dinar Civil Court of First Instance. 7. On 14 August 1997 the first-instance court decided to award the applicant an additional compensation of 3,330,990,000 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision running from 2 April 1997. 8. On 22 October 1997 the Court of Cassation upheld the judgment of the Dinar Civil Court of First Instance. 9. On an unspecified date, the applicant requested rectification of the Court of Cassation’s decision. 10. On 8 December 1997 the Court of Cassation dismissed the applicant’s request. 11. On 20 April and 19 July 1999 the Ministry paid the applicant TRL 6,242,830,425 in additional compensation together with interest. 12. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).
| 0
|
train
|
001-100095
|
ENG
|
HUN
|
COMMITTEE
| 2,010
|
CASE OF ZOLTANNE KALMAR v. HUNGARY
| 4
|
Violation of Art. 6-1
|
András Sajó;Kristina Pardalos
|
4. The applicant was born in 1922 and lives in Budapest. 5. On 6 March 1995 the applicant and another plaintiff brought an action before the Pest Central District Court, seeking the invalidation of a contract. 6. On 7 May 1996 the court held a hearing and, on 21 June 1996, appointed an expert who filed an opinion on 24 June 1998. 7. On 20 October 1998, 12 January, 9 March, 11 May and 22 June 1999 hearings were held. Subsequently the proceedings were interrupted on account of the death of the applicant's co-plaintiff. On 28 January 2000 a successor joined the proceedings. 8. On 10 March 2000 the case was suspended pending the termination of criminal proceedings against the respondents which the court considered a preliminary question. This prosecution, conducted on charges of financial fraud, originated in 1997. On 13 May 2005 the plaintiffs informed the court of the termination of the criminal case by the appellate criminal court and requested the continuation of the civil proceedings. 9. On 30 August, 5 and 8 November 2005 the court held hearings. On 15 November 2005 it gave judgment, finding for the plaintiffs. On 29 November 2005 the respondents appealed. 10. On 5 October 2006 the Budapest Regional Court held a hearing and, by judgment of 15 February 2007, upheld the first-instance decision. 11. On 11 May 2007 the respondents filed a petition for review. By its review judgment of 27 November 2007 the Supreme Court upheld the final judgment.
| 1
|
train
|
001-87836
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF VLADIMIR ROMANOV v. RUSSIA
| 2
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Preliminary objections partially dismissed (non-exhaustion of domestic remedies);Preliminary objections partially joined to merits and dismissed (victim);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1+6-3-d;Remainder inadmissible;Non-pecuniary damage - award
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
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6. The applicant was born in 1973 and lived until his arrest in the town of Ivanovo. 7. On 27 October 2000 four individuals attacked Mr I. near his flat, beat him up and attempted to rob him. Mr I. fought back and the attackers ran away. 8. Three days later the applicant was arrested on suspicion of having attempted to rob Mr I. in conspiracy with Mr B. and Mr V. The arrest record indicated that he had been arrested for disorderly conduct. The applicant was placed in detention facility no. IZ-37/1. 9. An investigator interviewed Mr B. and Mr V. who were drug addicts and were suffering from drug withdrawal syndrome. They confessed to robbery, committed with the applicant. According to the applicant, they had confessed because policemen had promised to supply them with drugs. The applicant insisted that in October and November 2000 Mr B. and Mr V. had written statements confessing to the robbery after the policemen had given them drugs. 10. On 30 October 2000 emergency doctors visited Mr V. The medical report of 30 October 2000 showed that Mr V. was a drug addict and that he had been provided with medical assistance. On 5 and 6 November 2000 the emergency doctors examined Mr B. He was diagnosed with drug addiction and withdrawal syndrome. Medical assistance was provided. 11. On 2 November 2000 the applicant had a confrontation interview with Mr I. who stated that four men wearing balaclava masks had attempted to rob him on 27 October 2000. Mr I. noted that the applicant was of the same height as one of the attackers. The applicant did not dispute Mr I.’s submissions and did not ask any questions. 12. While being questioned by the investigator the applicant admitted that he had intended to beat Mr I. up because a friend had asked him to do it. He denied that he had ever attempted to rob Mr I. The applicant maintained that testimony at the trial. 13. On 26 October 2001 the applicant was committed to stand trial before the Frunzenskiy District Court of Ivanovo. 14. A lawyer representing Mr V. successfully asked the District Court to examine the medical report of 30 October 2000 indicating that Mr V. was a drug addict. 15. At the trial Mr V. and Mr B. retracted their confessions made during the pre-trial investigation. They claimed that they had confessed to the robbery under the influence of drugs and in the absence of a lawyer. They insisted that on 27 October 2000 they had met Mr I. but had merely intended to beat him up and had had no intention of robbing him. 16. Mr I. did not attend the trial and the District Court found that there were “good reasons” for his absence. The Government, relying on a written statement by a District Court secretary, submitted that on 29 November 2001 Mr I. had notified the secretary by telephone that he had not been able to attend the trial hearings as he had been in another country. Mr I. had confirmed his statements made during the pre-trial investigation. The Government also produced a written statement issued on 28 November 2001 by a lay assessor who had sat in the applicant’s case. According to the lay assessor, Mr I.’s wife informed her by telephone that Mr I. had left Russia and had been unable to come back before 3 December 2001. 17. At the hearing on 29 November 2001 the District Court read out depositions made by Mr I. on 23 April and 8 May 2001. The court record indicated that the District Court had not asked the applicant or his lawyer whether they had agreed to the reading of the depositions. According to the depositions, on 27 October 2000 Mr I. opened the entrance door and saw four men wearing balaclava masks. One of them hit him in the face. Mr I. attempted to close the door but an attacker followed him into the flat. The entrance door of the flat accidentally closed and other perpetrators could not enter. Mr I. fought the attacker, opened the entrance door and was able to push the attacker out of the flat. After he had opened the door, he saw another man, whom he identified as the applicant. The applicant hit Mr I. with the handle of a gun and ran away. Mr I. claimed that the attackers had intended to rob him. 18. The District Court summonsed three witnesses, Mr L., Mr S. and Mr T. Mr L. and Mr S. attended the trial and testified that on 27 October 2000, the day of the alleged robbery, they had seen four men running but had not been able to identify them. Mr T., who lived in Israel, did not appear at the trial and his depositions made during the pre-trial investigation were read out. His statements were identical to those given by Mr L. and Mr S. 19. On 9 January 2002 the Frunzenskiy District Court of Ivanovo found the applicant guilty of aggravated robbery and sentenced him to eleven years and three months’ imprisonment. The court issued a confiscation order in respect of the applicant’s property. 20. The District Court based its judgment on the depositions by Mr I. made during the pre-trial investigation, the testimony by Mr L. and Mr S., the deposition by Mr T. made during the pre-trial investigation, the confession statements made by Mr V. and Mr B. during the pre-trial investigation, and the applicant’s statements in which he had admitted that on 27 October 2000 he had visited Mr I. but had not robbed him. The District Court noted that it had not been established of what property the defendants had intended to rob Mr I. 21. The District Court rejected the co-defendants’ arguments that they had confessed in a state of drug intoxication. It noted that there was no indication that Mr V. and Mr B. had been forced to confess or that they had been administered drugs to induce them to admit their guilt. Throughout the pre-trial investigation they had given consistent and detailed statements in the presence of attesting witnesses and their interviews had been recorded on video. The District Court watched those video recordings. The defendants had appeared to be in a normal state of health and had no longer claimed that they had been drugged. 22. On 16 and 22 January 2002 the applicant and his lawyer filed appeal statements against the judgment of 9 January 2002. They complained, inter alia, that the District Court had based the conviction on the depositions by Mr I. and Mr T. given during the pre-trial investigation. 23. On 23 April 2002 the Ivanovo Regional Court upheld the judgment of 9 January 2002, endorsing the reasons given by the District Court. In particular, it noted that the District Court had rightfully convicted the applicant on the basis of the statements given by Mr I. and Mr T. 24. On 18 October 2002 the Presidium of the Ivanovo Regional Court, on a supervisory review, reduced the applicant’s sentence to nine years and three months’ imprisonment, having regard to the fact that the gravity of the offence did not correspond to the severity of the sentence. 25. The applicant submitted that on 22 June 2001, on an order of the director of detention facility no. IZ-37/1, warders had entered cell no. 81 where he had been detained. The warders, hitting the inmates with rubber truncheons, forced them to leave the cell. In the corridor they continued hitting the applicant with rubber truncheons. The applicant fell on the floor and the beatings continued. After the beatings stopped, he crawled into his cell. Several hours later he felt extreme pain and his fellow inmates asked for a prison doctor. The applicant was taken to a hospital where doctors removed his spleen. 26. According to the Government, on 22 June 2001 the applicant took part in a prison disobedience action. They relied on written statements by warders, including the warder Mr Ye., and a report issued on 23 June 2001 by the head of the task unit of detention facility no. IZ-37/1. The report, in its relevant part, read as follows: “On 22 June 2001, at 8.05 a.m., a junior inspector, senior sergeant of the internal service Mr P., who was on duty,... raised the alarm and informed a senior lieutenant of the internal service Mr La... that detainees in cell no. 81 were attempting to kick the cell door out, banging on it with boots, metal plates and cups. On an order of the senior lieutenant of the internal service Mr La., a group of off-duty warders... went to cell no. 81... Upon their arrival, a senior lieutenant of the internal service Mr Pa... ordered the detainees to stop their unlawful actions and warned them that force might be used if they did not comply with the lawful order. However, the inmates ignored the order of the facility administration and continued their collective disobedience actions. Moreover, [inmates] in certain other cells... supported the actions of the inmates of cell no. 81 [and] also started knocking on the doors, which could have turned into a prison riot. The facility director, who by 8.15 a.m. had received full information on the incident involving inmates in cell no. 81, raised a general alarm and ordered that the senior lieutenant of the internal service Mr La. repeat his orders and warn the detainees of special means and consequences if they did not comply. After the repetition of the administration’s orders and the warning of the possible use of force had no effect on the detainees, the facility director decided to carry out a special operation in respect of the detainees in cell no. 81. In the presence of a group of medical staff members, the group of off-duty warders, other staff members who had gathered on an alarm signal and had been equipped accordingly, the cell door was opened and the detainees were requested to stop their active demonstration of discontent, to leave the cell [and] go into the corridor. In response to that lawful order the inmates climbed on to the upper bunks, refusing to leave the cell. They accompanied their actions with obscene and defamatory language towards the representatives of the facility administration. After rubber truncheons PR-73 had been applied to certain detainees who had clearly refused to comply, all the inmates went into the corridor. In the course of a discussion they did not raise any complaints nor did they substantiate claims against the facility administration which could serve as objective justification for confrontation... Inmates who had been allowed to return to the cell stopped their disorderly actions. Detainees in other cells followed their lead. It was established in the course of the investigation pertaining to that incident that the majority of the inmates in cell no. 81 had not known the real reasons for the disorderly actions when those actions had started, assuming that the flame of discontent had been fanned by the appalling (according to them) conditions of detention in the cell and [they] had taken part in those actions obeying exclusively the feeling of corporate solidarity. Secret operative measures taken with the purpose of establishing the true reason for the conflict allowed the conclusion that a voice message from an inmate of a cell on the lower floor about beatings of another inmate, Mr D., by warders, which took place at the same time... served as an incentive for the beginning of the collective disobedience.... As it follows from the inmates’ explanations, most of them heard orders addressed to them to stop disorderly actions and warnings that special measures would be used, but they did not react in any way. As a result of the selective application of rubber truncheons by the warders injuries were sustained by... and Mr Romanov Vladimir Anatolyevich... who were examined and received the necessary assistance from medical personnel of the facility. The investigation showed that the facility personnel in that situation had acted firmly, without compromise, taking the special measures promptly, without delay and in compliance with requirements of paragraph 2 of Section 45 [of the Custody Act]..., that is as it was required in the situation at hand, which was of a complicated nature since the actions of the detainees from cell no. 81 had been supported by detainees from other cells and other preventive measures of a non-violent nature had appeared to be ineffective.” 27. The Government submitted a record of the applicant’s medical examination drawn up on 22 June 2001 by the prison dermatologist. The record stated that the applicant had had bruises on his legs and four linear bruises on the back and the left side of the small of his back. The bruises measured 3.5 centimetres in width and 4 to 10 centimetres in length. 28. The Government, relying on an extract from the applicant’s medical record, further stated that on the evening of 22 June 2001 the applicant had been taken to the surgical division of the prison hospital and had been diagnosed with “a blunt chest injury, a splenic rupture, hemoperitoneum, first-degree shock, and an injury to the small of the back”. Doctors discovered signs of internal bleeding and decided to remove the spleen. Later in the evening the applicant underwent surgery. He remained in the hospital until 16 July 2001 and was transferred to the medical department of detention facility no. IZ-37/1 in “a satisfactory state of health”. 29. On 25 June 2001 the facility administration informed the Ivanovo regional prosecutor’s office that on 22 June 2001 force had been used against inmates, including the applicant. 30. An assistant of the Ivanovo Regional Prosecutor carried out an inquiry. On 3 July 2001 he issued a report, refusing to institute criminal proceedings as there had been nothing criminal in the warders’ actions. The relevant part of the report read as follows: “On 22 June 2001, at 7.45 a.m., before placement in a punishment cell, warders of the detention facility searched a detainee, Mr D. [He] resisted and as a result, force was used against him and forbidden correspondence was seized. Mr D. shouted loudly that the warders were beating him up, urging inmates to knock on their cell doors and protest. Detainees supported him, thus violating the detention rules, and [inmates] in cell no. 81, in particular, started banging hard on the cell door. At 8.05 a.m. a junior inspector of the task and guard unit, Mr P., sounded the general alarm in the facility. As follows from statements of staff members of the detention facility, ... on 22 June 2001, after the general alarm signal at 8.10 a.m. they arrived in cell no. 81, whose inmates were banging hard on the door. The detainees did not comply with repeated orders to stop their unlawful actions. The same orders and warnings of the possible use of special measures made by Mr P. through the door grille also had no result. On an order of the director of the detention facility, Mr Lu., the cell door was opened at 8.15 a.m. and the detainees were requested to go into the corridor. That order was lawful, taking into account the aggressive state of the inmates, the possibility of their attacking the warders, taking possession of cell keys and weapons, and taking hostages. Furthermore, the detention regime required a morning roll-call of the detainees. The inmates refused to comply with the order. In that situation [the warders] decided to force the inmates into the corridor. Four inmates, including Mr Romanov, urged their fellow detainees not to leave the cell, [he] actively disobeyed, swinging his arms and pushing warders Mr Ye. and Mr Zh., away, and did not respond to repeated orders to stop those unlawful actions. Following Mr Ye.’s repeated warnings about the possible use of special measures, [Mr Romanov] continued his actions. Mr Ye. hit Mr Romanov with a rubber truncheon three to four times on the back and legs, after which Mr Romanov was taken out of the cell into the corridor. The fact that the special measures were used is confirmed by statements of facility warders and their reports, as well as an official record of the use of special measures and an official record of the medical examination of Mr Romanov by a medical committee consisting of three persons. According to that record, Mr Romanov had injuries to his knees and feet and four red linear bruises on the back and the left side of the small of the back. The head of the medical department of the detention facility, Mr M., and a dermatologist, Mr Bo., stated that at about 3.00 p.m. on 22 June 2001 Mr Romanov had asked for medical assistance, complaining of pain in the left subcostal area. After a consultation with a surgeon from the prison hospital Mr Romanov was transferred to the hospital. According to statements by the head of the surgical division of the prison hospital Mr Ti. and the medical record, on the same day, at 8.10 p.m., Mr Romanov underwent surgery and his injured spleen was removed. In an interview Mr Romanov stated that on 22 June 2001 he had been woken up at 8.00 a.m. before the morning roll-call... He heard his inmates banging on the cell door. Soon afterwards warders entered the cell and forced everyone into the corridor. At that time he was near his sleeping place. A warder hit him several times with a rubber truncheon on the back and forced him into the corridor, where other warders also hit him numerous times on his back with rubber truncheons. He did not resist in any way and did not urge [inmates] to resist the warders. As a result of the investigation, Mr Romanov’s statements were not confirmed and they are of a contradictory nature. In particular, Mr Romanov could not explain the discrepancies between his arguments about the numerous blows and the results of the medical examination. Moreover, he was examined in the course of the prosecutor’s investigation on 27 June 2001, and no other injuries, save for those recorded in the report of the medical examination, were discovered. The detainees, Mr Bl., Mr Ve.... and Mr Y. did not see how the special measures were applied to Mr Romanov, stating that on 22 June 2001, before the morning roll-call, they had knocked at the cell door. [They] did not comply with the warders’ orders [and] did not stop their actions. [They] were warned about the possible use of special measures. Thus, taking into account the facts and the results of the investigation, it is necessary to note that a special measure, namely a rubber truncheon, was applied by Mr Ye. to Mr Romanov lawfully and in accordance with the requirements of Section 45 [of the Custody Act]...” 31. Following the prosecutor’s refusal to institute criminal proceedings, the applicant lodged an action against the Ministry of Justice and the Ministry of Finance seeking compensation for damage caused by the use of force on 22 June 2001. He also argued that the prosecutor’s office had unlawfully refused to institute criminal proceedings against the warders. 32. On 11 June 2002 the Oktyabrskiy District Court of Ivanovo accepted the applicant’s action in part and awarded him 10,000 Russian roubles (RUB, approximately 330 euros). The District Court cited the assistant prosecutor’s decision of 3 July 2001 in support of its finding that the use of force against the applicant had been lawful. The District Court further noted that the applicant had sustained serious damage which threatened his life. It observed that while using special measures such as rubber truncheons and physical force, warders should have ensured that the applicant sustained minimal damage. The District Court concluded that the detention facility, as a legal person, did not have sufficient control over whether the staff members performed their work safely. The applicant had sustained physical and moral suffering and compensation should therefore be paid. 33. On 14 October 2002 the Ivanovo Regional Court confirmed the District Court’s findings. However, it increased the amount of compensation to RUB 30,000 (960 euros). 34. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6). 35. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2). 36. When using physical force, special means or weapons, the penitentiary officers must: (1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees; (2) ensure the least possible harm to detainees and provide medical assistance; (3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28). 37. Rubber truncheons may be used to (1) stop assaults on officers, detainees or civilians; (2) repress mass disorder or group violations of public order by detainees, as well as to apprehend (задержание) offenders who persistently disobey or resist the officers (section 30). 38. Rubber truncheons may be used in the following cases: - to repel an attack on a staff member of a detention facility or on other persons; - to repress mass disorder or put an end to collective violations of the detention regime; - to put an end to a refusal to comply with lawful orders of facility administration and warders; - to release hostages and liberate buildings, rooms and vehicles taken over by a detainee; - to prevent an escape; - to prevent a detainee from hurting himself (section 45). 39. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 40. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Pursuant to Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment. 41. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113). 42. Article 77 of the RSFSR Code of Criminal Procedure provided that a conviction could not rest solely on the admission of the accused.
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train
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001-70756
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ENG
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RUS
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CHAMBER
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CASE OF FEDOTOV v. RUSSIA
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No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No 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 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
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Josep Casadevall
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8. The applicant was born in 1957 and lives in the town of Borovichi in the Novgorod Region. 9. On 7 May 1999 the prosecutor’s office of the Borovichi District began an investigation into the applicant’s dealings, as it suspected him of using his position as the president of a non-governmental organisation for personal gain. It was alleged, in particular, that he had used a grant of 5,000 US dollars (USD) to purchase computer equipment which he had kept at his home or, in the alternative, unlawfully given to a local law office. 10. On 13 October 1999 the prosecutor charged the applicant and issued an arrest warrant when he failed to attend the prosecutor’s office to countersign the charge sheet. 11. On 1 February 2000 a supervising prosecutor of the Novgorod Region quashed the decision to charge the applicant and cancelled the warrant. She found that the investigation was incomplete because pertinent facts had not been sufficiently examined. 12. On 9 February 2000 the Borovichi Criminal Police put the applicant’s name on the federal list of wanted persons. 13. On 20 March 2000 the applicant was charged again. 14. On 10 April 2000 a senior investigator from the Investigations Division of the Novgorod Regional Police dropped the charges against the applicant because there was no evidence that a criminal offence had been committed. On 4 May 2000 that decision was notified to the applicant’s lawyer. 15. At 9.50 p.m. on 14 June 2000 the applicant was detained in the Izmaylovo Hotel in Moscow on the basis of the arrest warrant issued on 13 October 1999 because his name was still on the federal list of wanted persons. 16. The applicant remained at the police station for twelve hours, until 10 a.m. on 15 June 2000. He was interrogated, searched and allegedly verbally abused by police officers. He was released only after the Novgorod Regional Police had confirmed, by a faxed letter, that the arrest warrant had been cancelled. 17. The officer in command at the police station refused to issue the applicant with a document confirming that he had been detained for twelve hours. 18. At 8.30 p.m. on 6 July 2000 the applicant was detained in Moscow on the basis of the same arrest warrant. He was handcuffed and escorted to the “Rostokino” Police Station of the North-Western Administrative District of Moscow. 19. According to the applicant, he was verbally abused by three police officers, one of whom also hit him in the chest. His requests for permission to make a phone call and to meet the officer in charge were ignored. 20. The applicant was not released until 6.15 p.m. on 7 July 2000, after confirmation had been received that the warrant had been cancelled. According to the applicant, during the entire period he spent in detention he received no water or food and was given no access to toilet facilities. 21. On 18 June 2000 the applicant complained to the Head of the Moscow Police and the Izmaylovskiy District Prosecutor’s Office. On 5 July 2000 the applicant complained to the Moscow City Prosecutor that he had been unlawfully detained and that the district prosecutor had failed to respond to his complaints. On 15 August 2000 he complained to the Prosecutor General about his unlawful detention in July 2000. 22. On 17 August 2000 a deputy director of the Operative Investigations Division of the Moscow Police informed the applicant that his detention on 14 June 2000 was considered lawful as he had been on the federal list of wanted persons. Since the applicant had not had any documents on him to show that the charges had been dropped, the police officers “had taken all appropriate measures to confirm or refute [his] statement about the unlawfulness of [his] detention”. 23. On 18 September 2000 a deputy director of the Public Security Division of the Moscow Police confirmed to the applicant that he had been detained because his name was on the federal list of wanted persons. He maintained that the Moscow police officers had acted lawfully and that on both occasions responsibility for his detention lay with the Novgorod Regional Police as they had failed to update the database of wanted persons in time. 24. On 4 September 2000 the director of the Operative Investigations Division of the Moscow Police advised the applicant that the Borovichi Police Department was responsible for placing people’s names on, and removing them from, the wanted persons’ list. 25. On 25 September 2000 a deputy prosecutor of the Izmaylovskiy District of Moscow wrote to the applicant to say that the blame for his detention lay with the Novgorod Regional police officers who had failed to remove his name from the wanted persons’ list. He added that the Moscow Police had acted lawfully on the basis of the information available. 26. On 31 October 2000 a deputy prosecutor of the Novgorod Region informed the applicant that his name had been deleted from the wanted persons’ list on 5 May 2000 and that notice thereof had been sent to the central database of the Ministry of the Interior on 16 May 2000. However, an investigator, Ms Romanova, had failed to notify the Borovichi Police Department that the arrest warrant had been cancelled on 1 February 2000, and it was that which had led to the applicant’s detention in Moscow and Lipetsk and the violations of his constitutional rights. The deputy prosecutor said that he had requested the director of the Investigations Department of the Novgorod Regional Police to examine the matter and to discipline those responsible for the violations of the applicant’s rights. 27. On 20 October 2000 a deputy director of the Internal Investigations Department of the Novgorod Regional Police wrote to inform the applicant that disciplinary proceedings were pending against the investigator who had failed to notify those concerned in time that the arrest warrant had been cancelled. 28. On 7 December 2000 an acting prosecutor of the Novgorod Region informed the applicant that Ms Romanova had been reprimanded for unspecified violations of the rules of criminal procedure. 29. After the application had been communicated to the respondent Government, the Ostankinskiy Interdistrict Prosecutor’s Office carried out an inquiry into the applicant’s complaints of 2000. On 29 March 2004 it issued a decision not to initiate criminal proceedings in connection with his allegations of ill-treatment because there was no evidence of criminal conduct by any of the police officers. On 20 April 2004 the Moscow City Prosecutor quashed that decision and ordered a further inquiry. 30. According to the Government, further to a recommendation (представление) issued on 20 August 2004 by the Ostankinskiy Interdistrict Prosecutor’s Office, the Information Centre of the Ministry of the Interior reinforced the procedures for ensuring that the federal list of wanted persons was regularly updated. 31. In early 2001 the applicant sued the Ministry of Finance, the Prosecutor General’s Office and the Ministry of the Interior. He claimed compensation for pecuniary and non-pecuniary damage in connection with the unlawful criminal proceedings and arrest. 32. On 29 August 2001 the Basmanniy District Court of Moscow requested the “Rostokino” police station to provide the papers relating to the applicant’s detention on 6-7 July 2000, including the records of his arrest and body search and an extract from the custody record. It does not appear that the requested documents were provided. 33. On 18 September 2001 the Basmanniy District Court delivered judgment. It found that the criminal proceedings against the applicant had been unlawful because they were ultimately discontinued for lack of evidence of a criminal offence. Having regard to the fact that “[the applicant] had given an undertaking not to leave the town and had not actually been taken into custody”, the District Court awarded him 3,000 Russian roubles (RUR, 110 euros (EUR)) in compensation for non-pecuniary damage. It further awarded him RUR 14,976 for legal costs incurred in the criminal proceedings and RUR 462.14 for costs in the civil proceedings. The total amount came to RUR 18,438.14 (approximately EUR 675). The remainder of the applicant’s claims were dismissed. 34 35. On 16 January 2002 the Moscow City Court upheld the judgment of 18 September 2001. It held that the applicant had not advanced any new arguments other than those that had been already examined by the District Court. 36. On 20 January 2002 the applicant applied to the Basmanniy District Court for a writ of execution. Having received no reply, he wrote to the president of the court and to the Moscow City Prosecutor on 7 March, 15 May and 19 June 2002 to complain about the delay. 37. On 27 May 2002 the President of the Basmanniy District Court replied to the applicant, advising him that the writ had been sent to the court bailiffs on 18 March 2002 for enforcement. 38. On 19 June 2002 the applicant received a writ of execution for RUR 17,976. On 26 and 27 June 2002 he complained to the Presidents of the Basmanniy District Court and the Moscow City Court that the amount in the writ was less than the award in the judgment. 39. On 26 June 2002 the applicant requested the President of the Basmanniy District Court to rectify the error in the writ. He repeated his request on 29 July 2002, but to no avail, and so on 2 September 2002 sent a complaint to the Moscow City Court. 40. On 16 July 2002 the applicant sent the writ of execution for RUR 17,976 to the court bailiffs. 41. By a letter of 24 September 2002, the President of the Basmanniy District Court confirmed that the writ had been sent to the court bailiffs on 18 March 2002. 42. On 22 November 2002 the bailiffs’ service of Interdistrict Office no. 2 of Moscow returned the writ for RUR 17,976 to the applicant, advising him to submit it directly to the Ministry of Finance. 43. Having received no response to his requests for rectification of the amount stated in the writ, the applicant renewed his request to the Basmanniy District Court to that effect on 19 September 2003 and returned the writ containing the error. 44. On 9, 10 and 15 February and 3 and 20 March 2004 the applicant wrote to the President of the Supreme Court, the Moscow City Prosecutor and the Basmanniy District Prosecutor to complain about the Basmanniy District Court’s persistent refusal to rectify the writ. 45. On 10 April 2004 the applicant received by post a writ of execution for RUR 18,446.54 dated 30 March 2004. On 16 April 2004 he submitted it to the Ministry of Finance for execution. 46. In a letter of 14 April 2004, the Supreme Court claimed that on 15 October 2003 a corrected writ of execution had been sent to the court bailiffs’ service. 47. By a letter of 6 May 2004, the Moscow Main Directorate of the Ministry of Justice informed the applicant that the bailiffs’ service had searched its records since 1 January 2002 and had no trace of receiving a writ of execution for RUR 18,446.54. 48. On 15 March 2004 the applicant requested the Basmanniy District Court to adjust the award in the judgment of 18 September 2001 in line with inflation. On 24 November 2004 the court granted his claim in part, awarding him RUR 6,269 on account of inflation and RUR 6,000 in legal costs. 49. On 25 November 2004 the Ministry of Finance returned the writ to the applicant, saying that it was defective. 50. On 16 December 2004 the Basmanniy District Court issued a new writ and submitted it directly to the Ministry of Finance. In his letter to the applicant, the court president acknowledged that the previously issued writs had not conformed to the law on enforcement proceedings. 51. At the date of the last communication from the applicant of 27 February 2005, the judgment of 18 September 2001, as supplemented by the judgment of 24 November 2004, had not yet been enforced. 52. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the RSFSR Code of Criminal Procedure (in force until 1 July 2002), a decision ordering placement in custody could be taken by a prosecutor or a court (Articles 11, 89 and 96). 53. The Russian Civil Code provides for strict liability (ответственность независимо от вины) of the State treasury for damage incurred through being unlawfully held in custody (Article 1070 § 1). 54. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows: “42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met. All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets. Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. 43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.” The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47). 55. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) read, in so far as it concerned the conditions of detention in administrative-detention cells located within police stations, as follows: “25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic. The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service. Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”
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train
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001-108374
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ENG
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GBR
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ADMISSIBILITY
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PEARSON v. THE UNITED KINGDOM
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Inadmissible
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David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Simon Brown;Vincent A. De Gaetano
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1. The applicant, Ms Jean Pearson, is a British national who was born in 1945 and lives in Shipley, the United Kingdom. She is represented before the Court by Ms Borrill, a solicitor practising in Leeds. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, of the Foreign and Commonwealth Office. 2. The applicant’s daughter, Kelly Pearson (born in 1969), died on 10 November 1999. 3. Kelly Pearson had a history of mental health problems associated with alcohol and substance misuse. 4. In September 1999 five warrants against her were considered by a magistrates’ court. Sentencing was deferred (until January 2000) the conditions of which were that she lived with her mother in West Yorkshire, kept in touch with her probation officer (not amounting to formal probation supervision), accepted her treatment for drug abuse and did not commit further offences. She went to live with her mother in West Yorkshire. The facts set out below are taken from the documents submitted, including the transcript of the Inquest held on 25 April 2002 (paragraphs 13-18 below). 5. Kelly Pearson was seen by many health professionals from September 1999. A General Practitioner (“GP”, who treated her from September 1999) later certified to the Inquest that it was not clear whether she was a chaotic individual with a long history of substance abuse or whether there was evidence of psychotic illness. A psychiatric nurse certified to the Inquest that she was unsettled and agitated expressing paranoid ideation and suspicious thoughts and that most of her problems appeared to be caused by long-standing substance abuse. 6. Because no recall notice had issued as regards one of the five warrants from the magistrates’ court Authority, in October 1999 British Transport Police officers circulated, in error, Kelly Pearson’s details on the Police National Computer (“PNC”) citing a failure to surrender to the warrant. In short, that warrant was, erroneously, now recorded as “outstanding” whereas it had been dealt with by the magistrates’ court in September 1999. 7. On 5 November 1999 Kelly Pearson was arrested in West Yorkshire for being drunk and disorderly. She was found guilty by a magistrates’ court on 6 November 1999 and a small fine was imposed. 8. During that process, a PNC search revealed the warrant erroneously described as outstanding. She was re-arrested on 6 November 1999 and, on 8 November 1999, transferred to London (Belgravia station), arriving at 16.20. The Police Custody Officer (“PCO”) obtained a copy of the “outstanding” warrant and approved her custody at 17.50. He asked her a number of standard questions including those to determine her state of health and well-being. She replied in the negative when asked if she needed any assistance and whether she was suffering from any medical condition, illness or injury. Although she was acting appropriately and calmly, she had medication in her possession and the PCO referred her to the Forensic Medical Examiner (“FME”). The FME examined Kelly Pearson at 20.20, took her history (she was open about her history of drugs and alcohol abuse) and noted her medication (valium and an anti-psychotic medication). The FME advised her and the PCO how the medication should be taken. She was assessed as calm and fit to be detained. The PCO also advised her of her right to consult a solicitor free of charge and to inform someone of her arrest. She spoke with a solicitor by telephone and later (21.45-22.30) he consulted with her at the police station. She was detained overnight. 9. She was transported the next morning (9 November) to the magistrates’ court. At approximately 10.15 it was discovered that the warrant was not valid and she was released from custody, although she stayed in the building. The Court Police Liaison Officer informed the on-duty probation officer, who happened to know Kelly Pearson and her background, and who, in turn, informed Kelly Pearson. A solicitor (from the law firm which represented her but who did not know her) also consulted with her and, having been informed by a “prison custody officer” that there was no valid warrant, the solicitor also confirmed this to her. The solicitor saw her around 10.15 and at midday and informed her that arrangements would be made by the probation officer for a travel warrant to be issued for her to return home to West Yorkshire. Since she was not under formal probation supervision, her travel could not be funded by the probation service and the probation officer set about obtaining it from court funds. Kelly Pearson insisted on going to a friend’s house in Manchester rather than home: her solicitor and the probation officer agreed. The travel warrant to Manchester from court funds was approved at around 15.30 by a Stipendiary Magistrate. Kelly Pearson collected the travel warrant and, indicating that she knew the way to the bus station, left the court building. The probation officer and her solicitor considered her angry, frustrated and, at times, aggressive. While both believed that she might have been drinking, taking drugs or medication (she had left the court building during the day), neither considered that she needed medical assistance. According to his evidence at the Inquest, the probation officer did not consider her suicidal and he would have brought her to the bus station had he had cause for concern. Kelly Pearson called the applicant in a distressed state at 18.20: she expressed no suicidal intent. 10. Kelly Pearson did not go to Manchester but remained in London overnight. The following morning (10 November) she attended The Passage Day Centre (a registered charity) where the manager knew her and she spent some time with a mental health project worker. She was not communicative. She telephoned her mother from the Centre. The project worker also spoke to her mother and her mother explained her daughter’s history and provided the number of her GP in West Yorkshire. On the advice of the manager of the Centre, Kelly was referred to a drop-in Medical Centre (which Kelly knew) that afternoon and her GP in West Yorkshire was informed. The project worker gave Kelly Pearson the bus fare to the Medical Centre and Kelly Pearson left in an improved mood. 11. At approximately 15.00 she attended the Medical Centre (a National Health Service clinic). She saw a GP who was also familiar with her history and who had consulted with her GP in West Yorkshire before he saw her. She refused to take the medication prescription given to her. She was agitated, aggressive and expressing paranoid ideas, but not suicidal. She left the Medical Centre at approximately 16.20. 12. At 18.32 the police were called to attend when Kelly Pearson had collapsed in the street. Identification, but not medication, was found on her. She was unconscious with a weak pulse. An ambulance arrived and she was transported to hospital where she was pronounced dead at 19.26. The post-mortem examination confirmed that she died of a methadone overdose. 13. On 15 November 1999 an Inquest was opened and adjourned by the Coroner. It was resumed on 25 April 2002, after the coming into force of the Human Rights Act 1998 (“HRA”). The Inquest lasted one day. 14. The applicant, who was present and legally represented, argued that the Inquest should examine: who or what factor(s) was responsible for the original execution of the warrant not being registered with the proper authorities; who or what was responsible for incorrect details being entered on the PNC; what, if any, safeguards existed to prevent the errors; why there was no reference on the Prisoner Risk Assessment Form that came from the West Yorkshire police station to medication, drug abuse or self-harm; what happened to her medication prior to her being discharged from custody; who was responsible for securing basic financial, logistical and therapeutic support to a vulnerable woman who had been falsely imprisoned and unlawfully transported hundreds of miles from her home, family and probation officer; why was she left to die involuntarily, homeless, penniless and without sufficient medication; and why were the two treating doctors not able to take more effective action in dealing with her mental health difficulties on the day of her death. 15. The Coroner did not allow the Inquest to cover such matters, the Inquest being limited to matters directly causative of death. Since Kelly Pearson had died before the entry into force of the HRA, the question “how ... she came by her death” (section 11(5)(b)(ii) of the Coroner’s Act 1988, “the 1988 Act”) was considered by reference to the pre-HRA test (R. v. North Humberside Coroner, ex parte Jamieson [1995] QB 1) rather than by reference to the post-HRA “Middleton” test (R.(Middleton) v. West Somerset Coroner [2004] UKHL 10 and R.(Sacker) v. West Yorkshire Coroner [2004] UKHL 11). In one exchange between Counsel for the applicant and the Coroner, the latter stated that it was within his remit to determine matters that were directly causative of death but not to enquire into every underlying circumstance which, however remotely, might be considered responsible for death. Accordingly, while the error in relation to the warrant was accepted, it was not the role of the Inquest to enquire into why or how that error had occurred. 16. The Coroner obtained a considerable amount of evidence about Kelly Pearson’s background and the events of the last two days of her life. The PCO described his contact with the applicant on 8 November. The applicant gave evidence mainly about her difficulty in obtaining information from the probation officer and the solicitor on the morning of 9 November. The solicitor and probation officer described their contacts with Kelly Pearson at the magistrates’ court on the morning of 9 November. The relevant medical personnel also described their contacts with her: the FME at Belgravia Police Station as well as the mental health project worker at the Day Centre and the doctor at the Medical Centre. The Coroner also read into the record reports detailing her symptoms and treatment from her GP, community psychiatric nurse and the consultant psychiatrist, all of whom had treated her in West Yorkshire,. The police officer called to attend when she collapsed in the street and the pathologist who conducted the post-mortem examination also gave evidence. 17. The Coroner summed up the evidence. He then advised on matters of law, explaining, inter alia, that it was no part of the Inquest’s role to apportion blame given section 42 of the Coroner’s Rules 1984 (“the 1984 Rules”). He explained the five standard questions in the Inquisition Form to which the jury had to respond. Items 1 and 5 concerned certain personal identifying details of the deceased. Item 2 concerned the “injury or disease causing death”: the Coroner considered this to be “crystal clear” and that there was absolutely no dispute given the pathologist’s conclusions (“Methadone, Diazepam and alcohol poisoning”). Item 3 concerned “the time, place and circumstances at or in which injury was sustained”: the Coroner explained that there was nothing to fill in since the deceased did not suffer any injuries. Item 4 constituted the “verdict” and allowed two possible conclusions: “death by misadventure” and “an open verdict”. The former was described as a situation where ‘an unlooked for or unintended fatal outcome arose from some voluntary act or actions of the deceased’. The latter (open verdict) was explained as the verdict which could be returned if the jury formed the view that the evidence “did not fully disclose the means whereby the cause of death arose” or if there was insufficient evidence to return a verdict of death by misadventure. 18. The jury found that the cause of death was “methadone, diazepam and alcohol poisoning” (Item 3) and it returned a verdict of death by misadventure (Item 4). The Coroner then closed the Inquest as follows: “From the evidence we heard, [Kelly Pearson] certainly needed help but there is no evidence to suggest that all the professionals, or indeed the health care professionals, had done anything other than acted in good faith, professionally and tried to help her within quite difficult circumstances. [Kelly Pearson] died as a result of a drug overdose, by her own volition, which is very sad and tragic indeed. Clearly, no one who had any knowledge of this tragic death could not but have the deepest sympathy for [Kelly Pearson’s] mother who clearly was at the end of her tether trying to do the best for her. Her frustration was compounded by the unfortunate ‘cock up’ of the inappropriate warrant which then brought [Kelly Pearson] to London where she died. [Kelly Pearson’s] mother’s distress and, indeed, palpable anger, was entirely understandable, and the Court Services at the very least, owe her a big apology indeed. No doubt there will be an inquiry into this matter, which is entirely outside of the remit of my court and I shall comment no more and.....I wish them luck in their quest in seeking answers to address her concern.” 19. The applicant complained to the West Yorkshire Probation Board (“WYPA”) and a report was sent to her solicitors in September 2002 (not submitted). The London Probationary Authority (“LPA”) investigated and reported on the complaint in so far as it concerned the London area. Following a meeting with, among others, the applicant and her solicitors on 17 January 2003 and other inquiries, the LPA issued a report dated 22 January 2003. It found that, while the probation officer was not required to supervise Kelly Pearson on 9 November, he did all that was necessary to ensure a travel warrant was issued; that the erroneous warrant for arrest was not a matter for the probation service but it would be raised by the LPA before the Criminal Justice Board; and that the LPA and the magistrates’ court staff did as much as they could for Kelly Pearson. 20. The applicant appealed to the Prisons and Probation Ombudsman for England and Wales who conducted an investigation into the applicant’s claims about the LPA and the WYPA. In the Ombudsman’s report of 6 October 2003 he supported the conclusions of the LPA, finding that the probation staff had behaved professionally at the magistrates’ court and had assisted Kelly Pearson as far as it was within their means to do so. On 16 January 2004 the Ombudsman’s report found that the WYPA had fulfilled all of their obligations in respect of the conditions of the deferred sentence, noting that the relevant probation officer in West Yorkshire had gone above and beyond what was required of her. 21. The applicant also claimed to have made various complaints to the police which were “unrecorded”. She submitted that her appeal to the Independent Police Complaints Commission (“IPCC”) was “upheld” in February 2007 and that the IPCC noted that the complaint might not be investigated because of the lapse of time since the incident. She referred to a letter of 2003 wherein the Metropolitan Police Service declined to “further investigate the circumstances of the applicant’s complaints”. The applicant also believed that she had unsuccessfully pursued complaints to the Magistrates’ Court Authority. No substantiating documents were submitted. 22. In October 2003 the applicant (who had legal aid) applied to challenge the Inquest under section 13 of the 1988 Act, arguing mainly that the Inquest failed to comply with Article 2 of the Convention. Leave was granted on 20 May 2004. 23. On 6 May 2005 the case was dismissed by judgment of the High Court. That court defined the key question as: where a Coroner conducted an Inquest into a pre-HRA death, was the approach to the question of “how ... the deceased came by his death” (section 11(5)(b)(ii) of the 1988 Act) to be considered by reference to the pre-HRA test (a Jamieson Inquest) or by reference to the post-HRA test (a Middleton Inquest). 24. The High Court found that an Inquest into a pre-HRA death did not have to be Article 2 compliant given the McKerr judgment of the House of Lords (In re McKerr [2004] 1 WLR 807). The High Court concluded: “... I therefore conclude that the [HRA] does not require a Coroner now investigating a death which occurred before the coming into force of the [HRA] to conduct an inquest in an Article 2 compliant manner. It may be that his failure to do so may be actionable in international proceedings in Strasbourg, just as the failure of the Secretary of State resulted in a successful application to Strasbourg in McKerr. However, that does not assist the claimant in the domestic context.” 25. In addition, the Coroner had retained and properly applied the correct Jamieson requirements. Having noted the considerable amount of evidence obtained by the Coroner, the High Court considered that the Coroner was “undoubtedly entitled to conclude that, under the pre-HRA law, it was unnecessary for there to be a detailed investigation into how the warrant came to be executed erroneously.” 26. In commenting on the final passage of the Coroner’s speech closing the Inquest and, in concluding itself, the High Court noted: “...I wish to associate myself with the deep sympathy expressed by the Coroner. I well appreciate that the claimant, as a loving parent, will continue to feel aggrieved by the scope of the inquest. It will be no consolation to her that if [Kelly Pearson] had died after 2 October 2000, different considerations would have applied to the parameters of the inquest. Sadly, however, the less generous law which applies to the inquest in the present case fails to provide her with all the answers to which she, understandably, feels entitled. I am sorry to say that her appeal must be dismissed.” 27. Leave to appeal to the Court of Appeal was granted, the single judge noting that an intervening judgment of the Court of Appeal was in the applicant’s favour (R.(Hurst) v London Northern District Coroner [2005] EWCA 890). The applicant was legally aided and represented. 28. The appeal was therefore stayed pending the House of Lords’ judgment in the Hurst case. On 28 March 2007 that judgment was delivered (R.(Hurst) v London Northern District Coroner [2007] UKHL 13), the House of Lords reversing the Court of Appeal judgment and confirming that there was no duty on a Coroner to hold an Inquest complying with Article 2 of the Convention in relation to a death that pre-dated the entry into force of the HRA even if the Inquest took place thereafter. Lord Brown approved the judgment of the High Court in the present applicant’s case. 29. Accordingly, on 6 April 2007 Counsel advised he applicant that her appeal had no prospects of success and should be withdrawn. On 10 May 2007 the Court of Appeal dismissed the appeal on a consent basis. 30. On 2 March 2003 the applicant issued civil proceedings for damages against a number of respondents, including the Greater London Magistrates’ Court Authority, alleging negligence and false imprisonment as regards the arrest and detention of Kelly Pearson on the basis of an unlawful warrant. The case was stayed pending the above-described judicial review proceedings. Legal aid was discharged in 2004 and the applicant acted in person when the case was re-activated thereafter. 31. On 9 May 2008 the Greater London Magistrates’ Court Authority agreed to compensate the applicant in the sum of 8,000 pounds sterling (“GBP”) and for previously incurred legal costs in the sum of GBP 12,000. 32. The HRA came into force in England, Wales and Northern Ireland on 2 October 2000. 33. Section 3 of the HRA provides that so far as it is possible primary and secondary legislation must be read and given effect in a Convention compatible manner. Section 6 of the HRA makes it unlawful for a public authority to act incompatibly with Convention rights, unless it is not possible to act differently by virtue of primary legislation. A successful claim under Article 6 would render the relevant public authority liable to the plaintiff under section 7 of the HRA and a judge has power to award damages under section 8 of the HRA. 34. Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) requires a Coroner to hold an Inquest in circumstances where there are grounds to suspect that the person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause is unknown. 35. Section 11(5)(b) of the 1988 Act outlines the content of the Inquisition Form (the document completed by the Inquest jury at the end of the evidence) as follows: “(i) who the deceased was; and (ii) how, when and where the deceased came by his death; ...” 36. Rule 36 of the Coroners Rules 1984 (“the 1984 Rules”) requires that proceedings be directed solely to ascertaining: (a) who the deceased was; (b) how, when and where he came by his death; and (c) the particulars required by the Registration Act to be registered concerning the death. Rule 42 provides that no verdict shall appear to determine any question of criminal or civil liability on the part of a named person. 37. In Regina v Her Majesty’s Coroner for Western District of East Sussex ex parte Homberg, Roberts and Manners (unreported 26 January 1994), Lord Justice Simon Brown said: “In short the inquiry must focus on matters directly causative of death and must, indeed, be confined to these matters alone ... . The recent, eleventh edition of Jervis on Coroners puts it thus: ‘The question of how the deceased came by his death is of course wider than merely finding the medical cause of death, and it is therefore right and proper that the coroner should enquire into acts or omissions which are directly responsible for the death’.” 38. This latter case informed the findings of the Court of Appeal in the principal case concerning the role and function of an Inquest as a fact-finding inquiry concerning a death pre-dating the HRA (R. v. H.M. Coroner for North Humberside and Scunthorpe ex p. Jamieson [1995] Q.B. 1). Sir Thomas Bingham M.R. held that the words “How ... the deceased came by his death” in section 11(5)(b) of the Coroners Act 1988 and Rule 36 were to be understood as meaning “by what means”: “... the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a more limited question directed to the means by which the deceased came by his death.” 39. A Jamieson Inquest provides therefore for narrow circumstances in which a lack of vigilance on the part of the third party could feature in the Inquest verdict. Having emphasised that the Inquest could not be concerned with matters of ordinary negligence (a failure to take reasonable care), the judgment defined the verdict of neglect (or lack of care) as a term of art: “Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression ‘lack of care’ may for practical purposes be deleted from the lexicon of inquests and replaced by “neglect.” Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect.” 40. On 11 March 2004 House of Lords decided (R. (Middleton) ν West Somerset Coroner [2004] 2 A.C. 182; and R. (Sacker) v. West Yorkshire Coroner [2004] 1 W.L.R. 796) that the limited scope of the Jamieson Inquest, being insufficient to provide a meaningful conclusion as to whether the conduct of State agents might reasonably have prevented a death, was incompatible with the procedural requirement of Article 2 of the Convention. In so deciding and using the interpretation mechanism of section 3 of the HRA an Inquest, in deciding “how” the deceased came by his death, was to consider both “by what means” and “in what circumstances” the deceased came by his death. This would be applicable to cases where it was plausibly alleged that unjustified lethal force had been used by agents of the State as well as in cases where it was alleged that the State had breached its positive duty to take reasonable steps to safeguard the lives of individuals. In this latter respect, the House of Lords noted that: “The decision in [Keenan v. the United Kingdom, no. 27229/95, ECHR 2001III] shows that it does apply to a broader category of cases, since although in that case no breach of the state’s investigative obligation was alleged or found, the court based its conclusion that Article 13 had been violated in part on its opinion ... that the inquest, which did not permit any determination of liability, did not furnish the applicant with the possibility of establishing the responsibility of the prison authorities nor did it ... constitute an investigation capable of leading to the identification and punishment of those responsible for the deprivation of life. A statement of the inquest jury’s conclusions on the main facts leading to the suicide of Mark Keenan would have precluded that comment. 41. Lord Bingham therefore made the following observation as to how those Rules would henceforth be applied: “The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of “how” in section 11(5)(b)(ii) and rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury’s factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular “neglect” or “carelessness” and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art.” 42. On the same day (11 March 2004) the House of Lords gave judgment in In re McKerr ([2004] 1 WLR 807). Following a finding of a breach of the procedural obligation under Article 2 by this Court (McKerr v. the United Kingdom, no. 28883/95, ECHR 2001III), that case determined that an obligation to conduct an Article 2 inquiry into a fatal shooting did not apply to a death which pre-dated the entry into force of the HRA. 43. Further to the delivery of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court accepted that an Inquest compliant with Article 2 should be held into the use of lethal force which took place prior to the entry into force of the HRA (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). Lady Hale did not consider that this required the re-opening of an Inquest that had already taken place, unless there was important new material. 44. The Court refers to the Relevant Domestic Law and Practice outlined in its judgment in Osman v. the United Kingdom (28 October 1998, §§ 89-97, Reports of Judgments and Decisions 1998VIII) and in Z and Others v. the United Kingdom ([GC], no. 29392/95, §§ 57-65), ECHR 2001V). It would add as follows. 45. The House of Lords judgment in Hill v. Chief Constable of West Yorkshire ([1989] A С 53) was later relied upon in Osman v Ferguson ([1993] 4 AU. E.R.344) and is also described in the judgment of this Court in its above-cited Osman judgment. 46. The public policy constraints on recognising a duty of care by public authorities were further considered in Brooks v. Commissioner of Police for the Metropolis ([2005] 1 W.L.R. 1495). The claimant was the friend of Stephen Lawrence. Both men had been subjected to a racist attack by five white youths, which resulted in the death of Stephen Lawrence. A subsequent public inquiry held that the investigation, and in particular the treatment of Mr Brooks, was open to criticism on a number of fronts, as well as indicating unwitting racism on the part of several officers and a generalised problem of institutional racism on the part of the Metropolitan Police. The House of Lords allowed the appeal of the Commissioner of Police against the decision of the Court of Appeal refusing to strike out the claimant’s action in damages for negligence. Lord Steyn gave the main judgment and considered the continuing status of Hill’s case under English law. He conceded that it was no longer appropriate to articulate the public policy issue in terms of an entitlement of public institutions to blanket immunities from civil proceedings. However, the underlying refusal in Hill’s case to recognise a duty of care when the police merely exercise their public functions was upheld. The judgments of Lord Steyn and Lord Nicholls recognised, however, that a duty of care would be held to exist in exceptional cases. 47. Since the Hill case, a number of cases have exhibited a sufficient degree of special relationship to displace the public policy consideration preventing the recognition of a duty of care. They include circumstances where a person acts as an informant of the police (Swinney v. Chief Constable of Northumbria [1997] Q.B. 464); or has their property targeted in the course of police operations (Rigby v. Chief Constable of Northamptonshire [1985] 2 All. E.R. 986); or is employed within their service (Waters v. Commissioner of Police [2000] 1 WLR 1607); or where a person is in detention (Kirkham v. Chief Constable of Manchester [1990] 2 Q.B. 283). 48. There is a parallel common law line of authority concerning the duty of care of local authorities. It is authoritatively expressed in the case of X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353 and described in the above-cited Z and Others v. the United Kingdom judgment), where the House of Lords held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. Two later significant judgments found the local authority to owe a duty of care, including to parents, as regards children placed by, or in the care of, a local authority (W. and Others v. Essex County Council [1998] 3 All England Law Reports 111; and Barrett v. London Borough of Enfield [1999] 3 Weekly Law Reports 79). 49. The Court of Appeal judgment in the case of Van Colle ν. Chief Constable of Hertfordshire ([2007] 1 W.L.R. 1821) concerned a death (the killing of a witness in a criminal prosecution) which post-dated the entry into force of the HRA. The applicant’s claim under section 7 of the HRA, for a breach of Article 2 of the Convention, was upheld. 50. In so doing, the Court of Appeal analysed the differences between that action under section 7 of the HRA and common law negligence, the Court of Appeal observing that the claimant would not have succeeded if the claim had been brought in negligence: “[Counsel for the claimant] stressed the fact that the claimants did not frame their claim in negligence before the judge and they have not done so before us. That was because of the difficulty of persuading the court that the police owed them a duty of care in the light of the decisions of the House of Lords in [Hill and Brooks]. Although there was a suggestion in the course of the argument that a duty of care might be owed on the particular facts of this case and, indeed, the judge’s judgment gives the claimants some encouragement, the claimants have never advanced their case on that basis and it seems to us to be fraught with difficulty. We shall proceed on the footing that on the authorities as they stand at present no duty of care was owed by the police to the claimants.” 51. In analysing the differences between the common law action and an action under section 7 of the HRA (of a breach of Article 2), the Court of Appeal noted that the public policy concerns about finite police resources were acknowledged in the Convention case-law, by setting the threshold for a breach of Article 2 at a relatively high point, although not so high as to require gross negligence. Having cited the relevant paragraph 116 of the above-cited Osman judgment of this Court, the Court of Appeal observed: “.. in [Osman v. the United Kingdom] the [Court] stressed that not every claimed risk to life gives rise to a positive obligation under Article 2. That is because of policy considerations which are very similar to those which led the House of Lords in [the Hill] case to conclude that no duty of care is owed by the police to those in the position of Giles. However, unlike the solution so far adopted by the common law, the solution adopted by the court under the Convention was not to hold that there was no positive obligation actionable at the suit of a victim to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, but to hold that such an obligation must be interpreted so as not to impose an impossible or disproportionate burden on the authorities.” 52. The House of Lords ([2008] UKHL 50) later allowed the appeal of the Chief Constable in the Van Colle case, finding that the claimants had not satisfied the “Osman threshold” so that there had been no violation of the substantive requirements of Article 2 of the Convention. 53. The parallel appeal before the House of Lords decided at the same time (Smith (FC) v. Chief Constable of Sussex Police [2008] UKHL 50) concerned a claim under the common law of negligence only. The House of Lords confirmed the “robust” approach of the above-cited Brooks judgment and explicitly contrasted that with the remedy available under the HRA. 54. The Law Reform (Miscellaneous) Provisions Act 1934 (“the 1934 Act”) provides for the survival of causes of action for the benefit of the deceased’s personal estate. The relevant part of section 1(1) provides: “Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” 55. This enables recovery on behalf of the estate of damages for losses suffered by the deceased before death, including non-pecuniary damages for pain and suffering between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act (the only recoverable amount being funeral expenses). 56. The Fatal Accidents Act 1976 (“1976 Act") confers a right of action for a wrongful act causing death. Section 1(1) provides: “If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.” The statutory right of action is reserved to the deceased’s dependants (parents are not considered dependants) and allows the recovery of their pecuniary loss. If there are no dependants, no pecuniary loss is recoverable. Bereavement damages (fixed at GBP 7,500) are available to parents if the deceased child was under 18 years of age. Funeral expenses are recoverable. English law does not recognise a tort of wrongful death.
| 0
|
train
|
001-61736
|
ENG
|
POL
|
CHAMBER
| 2,004
|
CASE OF M.B. v. POLAND
| 3
|
Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award
|
Nicolas Bratza
|
9. The applicant was born in 1967. 10. In 1994 the Białystok Regional Prosecutor instituted investigations concerning suspicion of fraud. On 28 March 1995 the applicant was charged with fraud committed jointly with other persons. On 30 March 1995 the Białystok 11. The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities. On 3 April 1995 the applicant's lawyer and on 6 April 1995 the applicant himself appealed against the detention order, arguing, inter alia, that his bad health was incompatible with his detention. 12. By a decision of 11 April 1995 the Białystok Regional Prosecutor preferred charges against the applicant. It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations. The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan, to the manner in which the funds had been transferred to the applicant's bank account, and to the links established between the suspects in the case. 13. On 10 April 1995 the Warsaw Regional Court, at a session held in camera, refused the applicant's lawyer's appeal against the detention order and on 27 April 1995 the applicant's own appeal was, likewise, dismissed. 14. On 25 April 1995 the applicant requested to be released. 15. On 28 April 1995 the same court refused to allow the applicant's appeal against the decision of 11 April 1995 by which the prosecution had preferred charges against the applicant. The court considered that the case was complex, that there were many suspects, and that the offences concerned were of a very serious nature. 16. On 28 April 1995 the Białystok Regional Prosecutor refused the applicant's application for release of 25 April 1995. On 18 May 1995 the Białystok Appellate Prosecutor upheld this decision, considering that a medical certificate confirmed that the applicant was suffering from Marfan syndrome which was a connective tissue disorder, so affected many structures, including the skeleton, lungs, eyes, heart and blood vessels. However, the applicant was under the medical supervision of a prison doctor. The grounds on which the applicant had been arrested still obtained, and the offence concerned was of a serious nature. 17. On 13 June 1995 the charges against the applicant were supplemented by two further counts of fraud, committed by obtaining another two bank loans by false pretences. The prosecuting authorities referred, inter alia, to various Polish and foreign documents, to the testimony of witnesses, interviewed during the investigations, and to other evidence. When questioned by the prosecutor on that day, the applicant requested that detailed written grounds of these charges, giving factual reasons grounding the suspicions against him, be prepared and served on him and on his lawyer. On 28 June 1995 the applicant was served with this document. 18. On 26 June 1995 the Warsaw Regional Court prolonged the applicant's detention for three months, until 29 September 1995. 19. On 13 July 1995 the applicant requested again to be released. On 17 July 1995 his request was refused by the Białystok Regional Prosecutor. 20. On 17 July 1995 the applicant requested to be released in order to undergo a specialised ophthalmologic examination, submitting that he suffered from an ailment, which seriously affected his eyesight, and that his eyesight had severely deteriorated as a result of his detention. 21. On 27 July 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of the Warsaw Regional Court of 26 June 1995 prolonging his detention for a further three months. 22. On 11 August 1995 the Białystok Appellate Prosecutor upheld the decision of 17 July 1995, considering that the evidence against the applicant had rendered the charges against him sufficiently credible. 23. On 12 September 1995 the applicant's new request for release, submitted on 8 September 1995, was refused by the Białystok Regional Prosecutor. An identical decision was given on 15 September 1995 in respect of his fresh request for release, the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant, and that there were genuine grounds for believing that, if released, he would exert pressure on the witnesses. 24. On 18 September 1995 the applicant's detention was prolonged until 29 November 1995, the Warsaw Regional Court considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations. On 26 October 1995 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision. 25. On 16, 17, 20 and 21 November 1995 the applicant had access to the case file and was informed of his right to submit, within three days, motions for further evidence to be admitted. 26. On 21 November 1995 the Białystok Regional Prosecutor again refused to release the applicant. On the same day the applicant requested the Białystok Appellate Prosecutor to set aside this decision. 27. On 23 November 1995 the Warsaw Court of Appeal prolonged the applicant's detention until 29 December 1995. On the same day the court's registry was served with the applicant's letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention. On 27 November 1995 the court replied that his request had been included in the case file, noting that it had been served on the court after the session had been held in the applicant's and his lawyer's absence. 28. On 26 November 1995 the Warsaw Court of Appeal upheld the decision of the Warsaw Regional Court of 26 October 1995 prolonging the applicant's detention. 29. On 8, 12 and 15 December the applicant examined the case file. 30. On 14 December 1985 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 November 1995 prolonging his detention until 29 December 1995. 31. On 15 December 1995 the applicant requested that certain pages that had been taken out of the case file and transferred to the file of another case, which had been severed from the applicant's case in June 1995, be re-included into his file so that he could have access to them. 32. On 21 December 1995 the Białystok Regional Prosecutor closed the investigation, considering that the case-file contained enough evidence for a bill of indictment to be lodged with a court. On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on 15 December. 33. On the same day the Białystok Appellate Prosecutor refused to allow the applicant's appeal against the decision to prolong his detention, given on 23 November 1995. 34. On 8 January 1996 the applicant requested to be released and on 10 January 1996 he proposed to pay bail in the amount of PLN 5,000. 35. On 19 January 1996 the applicant requested to be granted access to the case-file, submitting that he had not been shown items Nos. 85, 86, 87. 36. On 25 January 1996 the Warsaw Regional Court dismissed the applicant's request to be released on bail. 37. By a letter of 19 January, submitted to the court on 24 January 1996, the applicant requested to be allowed to read the case file again. 38. The refusal to release the applicant, given on 25 January 1996, was upheld by the Warsaw Appellate Court on 13 February 1996, which considered that the applicant's appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal. 39. By a letter of 21 February 1996 the applicant again requested to be given access to the case file. On 28 February 1996 the case-file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on 1 March 1996. 40. On 7 March 1996 the Warsaw Regional Court held a session, concerning the applicant's request for release on bail and the amount of bail to be paid. The applicant's lawyer attended that session. The court fixed the bail at PLN 15,000. The applicant was released on the same day after bail had been paid. 41. On 26 July 1998 the applicant died of Marfan syndrome. On 20 August 1998 the Warsaw Regional Court discontinued the criminal proceedings against him. 42. At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure of 1969, which read as follows: Article 210: “1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...).” Article 212: “1. A decision concerning preventive measures may be appealed [to a higher court] ... 2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...” 43. These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order. 44. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads: “1. Detention on remand shall be imposed by a court order. 2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case. 3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court.” 45. At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, which, insofar as relevant, provided: Article 87: “The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ...” Article 88: “A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it.” 46. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings. 47. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered. 48. At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act laid down the principle of the separation of powers in the following terms: “The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.” 49. Under Article 56 of the Act, the Council of Ministers (Rada Ministrów) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers. 50. In pursuance of Article 1 of the Act of 20 June 1985 (Ustawa o sądach powszechnych), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts. 51. Article 1 of the Act of 20 June 1985 on Prosecuting Authorities (Ustawa o Prokuraturze) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows: “1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General. 2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice.” Article 2 of the Act reads: “The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences.” 52. Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law. 53. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order. 54. Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case. 55. Under Article 3 of the Code of Criminal Procedure of 1969 ”organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.”
| 1
|
train
|
001-22645
|
ENG
|
ESP
|
ADMISSIBILITY
| 2,001
|
ALUJER FERNANDEZ and CABALLERO GARCIA v. SPAIN
| 1
|
Inadmissible
|
Georg Ress
|
The applicants are Spanish nationals who were born in 1948 and 1949 and live at Albalat dels Sorells (Valencia). They were represented before the Court by Mr Miguel Ramón Mancebo Monge, a lawyer practising in Valencia. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are Protestants and members of the Baptist Evangelical Church in Valencia, which is on the official register of religious institutions kept by the Ministry of Justice, and a member of the Federation of Evangelical Churches of Spain (FEREDE). In their income-tax returns for 1988, the applicants were given a choice between allocating part of their income tax to financial support for the Catholic Church or for other charitable purposes. Since it was not legally possible for them to allot part of their income tax to financial support for their own Church, the applicants used a remedy afforded by Law no. 62/1978 on Judicial Protection of the Fundamental Rights of the Person and lodged an administrative appeal with the Valencia High of Justice challenging the Law on the State Budget 1988 on the ground that it contravened Articles 14 (principle of equality) and 16 (right to freedom of conscience and religion) of the Constitution. In their appeal, they sought a declaration that the system implemented through the income-tax returns for 1988 was invalid, as it denied them a right enjoyed by Spaniards of the Catholic faith. The Valencia High Court of Justice dismissed that appeal in a judgment of 22 April 1990, notably on the following grounds: “Three: The issue to be resolved in the present appeal ultimately amounts to deciding whether or not the difference in tax treatment complained of is based on unjustified discrimination prohibited by the Constitution that invalidates the impugned acts... Four: As the Constitutional Court has said many times, a finding of discrimination contrary to the principle of equality will be made only if in normative cases that are identical in substance a difference in legal treatment has no objective or reasonable justification, since it lacks a rational basis... Five: In the present case, the Court finds no violation of the principle of equality as, in accordance with Article 133.3 of the Constitution, any fiscal privilege concerning State taxes must be provided for by statute. In the instant case, section 7(2) of Institutional Law no. 7/1980 of 5 July 1980 on Religious Freedom, which implements the said Article 16 of the Spanish Constitution, makes legal recognition of tax privileges laid down by general legislation in favour of non-profit making associations and other charitable bodies conditional on entry into agreements or conventions that must not only abide by the principle of equality but also, by virtue of sub-paragraph 1 of that Article, take religious beliefs existing in Spanish society into account. That provision complies with the content of Article 16.3 of the Constitution. However, in practice the situation of the Catholic Church, which has entered into a subsisting convention with the Spanish State and has the largest number of practising members and responsibility for a vast historical and cultural heritage, is different to that of the Baptist Evangelical Church, which has no convention or cooperation agreement with the Spanish State and does not satisfy the other condition. Naturally, under no circumstances should that be taken to mean that this Division entertains any doubts as to the constitutionality of any agreement implementing the right sought by the appellants and, while it is not for this Division to decide issues that are within the sole discretion of the legislature, it is obvious that it would be more consistent with the principle of religious freedom and equality for such a right to be made available... Six: As to the alleged violation of the right not to reveal one’s religious convictions, it is obvious that there has been no such violation in the instant case as no declaration was made in the impugned document. Furthermore, the fact that tax is allocated to the Catholic faith, which in any event will in principle only be the case with Catholics, does not infringe the right concerned either since, as with all fundamental rights, it is subject to limitations. In the instant case, the declaration predetermining expenditure is both justified and reasonable... Furthermore, opting to predetermine expenditure does not necessarily mean that the taxpayer adheres to that religion, as the possibility that he or she has so opted for other reasons such, for instance, ... as the exercise of an adequate social activity, cannot be excluded.” The applicants appealed against that judgment to the Supreme Court, which declared their appeal inadmissible in a decision of 26 March 1992. The applicants lodged an amparo appeal with the Constitutional Court, which on 20 June 1994 ordered the Supreme Court to declare the appeal admissible and to rule on the merits. On 20 October 1997 the Supreme Court examined the appeal and dismissed it on the merits, upholding the judgment appealed against. Relying on Articles 14, 16 and 24 of the Constitution, the applicants lodged an amparo appeal with the Constitutional Court, which in a decision of 13 May 1992, dismissed it for the following reasons: “There has been no violation in the instant case of the constitutional rights to equality before the law without discrimination based on religion (Article 14 of the Spanish Constitution), not to be required to reveal one’s religion or beliefs (Article 16.2 of the Constitution) and to the effective protection of the courts (Article 24.1 of the Constitution)... A decision by a taxpayer not to complete the section of the income-tax return for the fixed statutory percentage of tax that may be allocated to religious ends or other charitable interests in the absence of an alternative allowing an allocation in favour of the taxpayer’s own Church does not entail even an indirect violation of the constitutional guarantee of the right not to reveal one’s religion or beliefs (Article 16.2 of the Constitution). Furthermore, the court cannot find any discrimination based on religion violating the right to equality of treatment before the law (Article 14 of the Constitution), since a rational and objective basis exists for setting up a specific scheme of financial support for the Catholic Church through additional clause 5(4) of Law no. 33/97... and the principle that the State is non-denominational is supplemented by the mandate which Article 16. 3 of the Constitution gives the public authorities to establish “appropriate cooperation with the Catholic Church and the other denominations”, having regard to the religious beliefs of Spanish society. It is within that institutional framework that the cooperation agreements have been entered into. These include... an agreement on financial questions entered into with the Holy See by which the State undertakes to assist with the financial support of the Catholic Church. Thus, in the absence of any similar undertaking in favour of other denominations, the proposed basis for comparison is not adequate and the difference in treatment made by the legislature is neither arbitrary nor unjustified. Furthermore, Article 16.3 of the Constitution does not establish any directly enforceable fundamental right to compel the public authorities to set up a system enabling the alleged right to allocate a percentage of one’s income tax to the support of one’s own Church and the constitutional remedy of amparo is not the appropriate remedy for calling into question the constitutionality of the (alleged deficiencies) in the law. Lastly, the judgments appealed against provided a reasoned and legally founded answer to the issues raised by the applicants...” “Spanish nationals shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. Freedom of ideology, religion and worship is guaranteed for private individuals and communities without any limitation on its expression other than as shall be necessary to maintain public order protected by law. 2. No one may be required to reveal their ideology, religion or beliefs. 3. No denomination shall be treated as the religion of the State. Public authorities shall take into account the religious beliefs of the Spanish society and shall accordingly seek to cooperate with the Catholic Church and the other denominations.” Under Institutional Law no. 7/1980 on Freedom of Religion, the State may enter into cooperation agreements – providing, inter alia, tax exemptions – with Churches. The arrangements will depend on the number of members the Church has, the extent to which it is established in Spanish society and the beliefs of the majority of Spaniards. “Pursuant to the provision set out in Article II of the Agreement on Financial Matters entered into by the Spanish State and the Holy See on 3 January 1979..., from 1988 onwards a percentage of the income tax paid by private individuals will be allocated to religious ends or other ends in the interest of society. 2. The said percentage shall be determined in each annual budget and shall apply to the tax levied on the basis of the annual returns made by taxpayers. ... 4. Taxpayers may indicate in their tax return their wish for a percentage of their income tax to be allocated to: (a) providing financial support for the Catholic Church; or (b) other ends set out in subparagraph 1 of this provision. Anyone who does not expressly state their preference shall be deemed to have opted for the ends referred to in subparagraph (b).” The Law of 10 November 1992, which was published in the State Official Gazette of 12 November 1992, governs the following matters: (i) the status of ministers of the evangelical church; (ii) legal protection for places of worship; (iii) recognition under the civil law of marriages celebrated according to Evangelical rite; (iv) religious assistance in public centres or institutions; (v) Evangelical religious teaching in schools; (vi) tax privileges applicable to certain assets and activities of Churches that are members of the FEREDE. Further, supplemental provision no. 2 of the Law provides that the agreement may be varied in whole or in part on the initiative of either party. Supplemental provision no. 3 establishes a joint committee comprising representatives of the State and of the FEREDE. According to information provided in February 2001 by the Director of Religious Affairs at the Ministry of Justice, a meeting of the joint committee (State-FEREDE) was held on 15 April 1999. During the course of the committee’s examination of the problem of financial cooperation with the State regarding certain activities of the Evangelical Churches, the State representative asked FEREDE for its view on the system of allocation of income tax. In reply to that question, the executive secretary of the FEREDE replied: “after various consultations, it was discovered that the opinion of the Churches within the Federation is divided, such that a final view has yet to be reached; it will be announced once it has been determined by negotiation”. Consequently, the 1992 agreement has not been amended and, to date, the FEREDE has not requested any amendment to it.
| 0
|
train
|
001-83578
|
ENG
|
RUS
|
CHAMBER
| 2,007
|
CASE OF TANGIYEVA 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 - Examination of the case);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;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 - Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Loukis Loucaides
|
6. The applicant was born in 1958 and was a resident of Grozny, Chechnya. She currently resides in Ingushetia. 7. The submissions of the parties on the facts concerning the circumstances of the applicant’s relatives’ deaths and the ensuing investigation are set out in Part A below. A description of the relevant materials submitted to the Court is contained in Part B. 8. The applicant and her family lived in the Staropromyslovskiy district of Grozny in their own house at 166 Derzhavina Street. 9. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. The Staropromyslovskiy district, situated in the northern and central parts of the town, was bombarded from the air and by artillery. The applicant submitted that most residents of the district had left for safer areas. Following heavy fighting, as of December 1999 the Russian forces started to regain control over the city starting from the north, and by the end of January 2000 the central parts of the city were finally taken. 10. In the winter of 1999-2000 the applicant, her father Abdul-Vagap Tangiyev (born in 1926), her mother Khirzhan Ibragimovna Gadaborsheva (born in 1932), her uncle Ismail Ibragimovich Gadaborshev (born in 1924) and her sister Khanifa Gazdiyeva remained in their house in Grozny. In December 1999 they were joined there by five neighbours, all women, because their house had a large cellar where they could take shelter during shelling. 11. The applicant, her sister and a neighbour submitted written accounts of the events of December 1999 and January 2000. According to them, the district had first come under heavy bombardment on 22 November 1999, when one of the women who had been staying with them in the cellar had been killed. On the same day the applicant’s mother had been slightly wounded by shrapnel. After that the shelling intensified, and the applicant and her family were unable to leave the town. 12. After 23 December 1999 the shelling became very intense, and the persons who had been staying in their cellar decided to move somewhere safer. On 26 December 1999 most of them moved to a nearby five-storey building with a larger cellar in Pugacheva Street. The applicant’s father, uncle and one neighbour remained in their house to look after the property and cattle. In the evening of the same day the applicant heard the noise of tank engines in the streets. She said that they had been relieved because they had expected an end to the shelling. 13. In the morning of 27 December 1999 the applicant’s uncle met a group of Russian servicemen on the way from his house to the Pugacheva Street and told them that a group of forty to forty-five civilians had taken refuge in the cellar of that house. The servicemen then came into the cellar and checked the identity documents of the men, most of whom were about 50 years old. The soldiers then took up battle positions in the neighbourhood. 14. In the morning of 28 December 1999 the applicant noted that their house in Derzhavina Street was partially destroyed. When she and her mother arrived there, they found her father and a neighbour, who had remained in the cellar throughout the day upon orders of the soldiers who had been stationed around the house. 15. On 28 and 29 December 1999 servicemen came to the cellar of the apartment block at Pugacheva Street where the applicant was staying and ordered the men, under threat, to help them collect six bodies of servicemen from the street. 16. On 1 January 2000 a detachment of the OMON (special police forces) arrived in the district and took up position in a former hostel building near Pugacheva Street. On the same day servicemen from that unit took away three men from the cellar. The applicant later learned that they had been shot. 17. Each day from 3-10 January 2000 the applicant went to check up on her relatives in the house at Derzhavina Street. On several occasions there they met an officer who said his name was Tima and who was the commander of a tank crew stationed at 164 Koltsova Street. The officer was often drunk and aggressive, and had once threatened to shoot them all, but the applicant’s father had managed to calm him down. Tima said that he was from Ossetia and that he had fought in Dagestan before. The applicant submitted that she could have identified him or composed a sketch of him. She submitted that the situation had been very tense, because the soldiers had regularly visited both houses for identity checks, ordered the residents to help them collect dead bodies under threat, selected men for “exchange” with the fighters, and so on. The applicant also saw the houses in the neighbourhood being systematically set on fire. 18. In the evening of 10 January 2000 the applicant, her family and some neighbours finally decided to leave Grozny on the following day, until the situation grew calmer. The applicant and her sister went to get water from the hostel where the OMON troops were stationed and warned an officer there that old people were staying in the house at Derzhavina Street, and that they should not shell it or shoot at them when they were carrying water. She then returned to the cellar of the house at Pugacheva Street, while her mother, father, uncle and a neighbour, Valentina Fotiyeva, stayed in their family home at Derzhavina Street. 19. In the morning of 11 January 2000 the applicant, her sister and three other women went to the house at Derzhavina Street to pick up her uncle and to say good-bye to her parents. They found the gates closed and smoke coming out of the house. They received no reply to their calls, and forced the doors open. The cellar was burning and they were unable to access it. In the kitchen they found the applicant’s father’s body and the body of Valentina Fotiyeva, both with gunshot wounds. The documents, money and valuables were intact. The applicant and her sister took the two bodies out of the burning house, but did not have time to extinguish the flames or to bury them because they were afraid that the killers would come back. They ran to the house in Pugacheva Street and related what had happened. A neighbour told them to leave immediately and promised to take care of the burials. The applicant and her sister took only their personal documents with them and walked several kilometres to the roadblock in Sobachevka, where they took a bus to Ingushetia. 20. On the following day, 12 January 2000, the applicant returned to Grozny with two cars, in order to collect and bury the bodies. At one of the military roadblocks on the way they picked up three servicemen as an escort for security. They also met by chance their neighbour, who explained where he had buried the applicant’s father’s body. When they arrived at 166 Derzhavina Street, the house was completely burned down. They could not go down to the cellar, because it was still smouldering. They dug up the applicant’s father’s body and took it away for burial in the village of Chermen in North Ossetia. 21. One month later relatives of Valentina Fotieyeva collected her body and buried it in a cemetery in Grozny. 22. Later, on 6 March 2000, the charred remains of the applicant’s mother and uncle were extracted from the cellar by officials of the Russian Ministry of Emergencies (Emercom). Personal belongings and bullets were found near the bodies. The applicant’s family buried them at a village cemetery in Ingushetia. 23. In addition to her own statements and three witness statements, the applicant submitted drawings of the neighbourhood and of their house at 166 Derzhavina Street, with indications of the places referred to and the locations of the bodies of her relatives. She also submitted photographs of the ruins of their house and of the cellar in Pugacheva Street. 24. The applicant did not apply to any authorities or contact a medical doctor after the incident. However, her story was related in a number of press articles and NGO reports, copies of which the applicant submitted to the Court. 25. On 26 January 2000 the Literaturnaya Gazeta newspaper in the article “Welcome to Hell! Interviews with Persons Who Escaped from Besieged Grozny” reported the story of the killing of the applicant’s relatives, based on an interview with her. 26. In February 2000 Human Rights Watch issued a report entitled “Civilian Killings in Staropromyslovskiy District of Grozny” in which it accused the Russian forces of deliberately murdering at least thirty-eight civilians between late December and mid-January. Human Rights Watch interviewed survivors, eyewitnesses and relatives of the dead. The report contains information about the deaths of Abdul-Vagap Tangiyev, Khirzhan Gadaborsheva, Ismail Gadaborshev and Valentina Fotiyeva, based on interviews with the applicant and another witness in Ingushetia. 27. Several human rights NGOs assisted the applicant and addressed the law-enforcement authorities in relation to the events in the Staropromyslovskiy district of Grozny in January 2000, where several dozen local residents had allegedly been executed by unidentified military units. 28. On 10 February 2000 Human Rights Watch wrote to the Russian authorities, including the President, the Prosecutor General and the Minister of Defence with a request that they investigate credible allegations of the mass murder of civilians in the Staropromyslovskiy district. 29. On 3 May 2000 the applicant was questioned by a prosecutor in the Staropromyslovskiy District Prosecutor’s Office. The applicant submitted that the investigator had asked her questions about the killings, to which the applicant herself was not a witness. When she had stated that only the Russian servicemen stationed around the house could have committed the murders, and had spoken of their previous visits and threats, the investigator had told her that there were no direct witnesses to the murders, and that she could be held responsible for false accusations. The applicant had suggested that officer Tima could be responsible for the killings, and the investigator had told her that he had died. After that the applicant had been convinced that the investigation would not be effective and did not turn to any other official body. 30. She was called for questioning once again, as a witness, on 31 May 2000, but it appears that she failed to attend. 31. It appears that no death certificates were ever issued in respect of the applicant’s relatives. The applicant’s cousin, the son of Ismail Gadaborshev, submitted that he had had difficulties in obtaining a death certificate for his father and for other relatives. 32. The applicant’s representatives, NGO Memorial, asked prosecutors at various levels on several occasions to submit information about the investigation of the killings of civilians in the Staropromyslovskiy district. In response, they received conflicting information with references to different criminal case numbers. On several occasions they were informed that their requests had been forwarded to different prosecutors’ services for processing. 33. On 19 June and 18 July 2002 the Chechnya Prosecutor’s Office informed Memorial that on 5 March 2000 criminal case no. 12011 had been opened into the murders committed in Grozny on 10 January 2000 and that it had been transferred for further investigation to the Northern Caucasus Department of the Prosecutor General’s Office. 34. However, on 22 August 2002 the Northern Caucasus Department of the Prosecutor General’s Office forwarded Memorial’s request for information to the Chechnya Prosecutor and asked him to issue an update of the investigation of criminal case no. 12011. 35. On 17 February 2004 the applicant wrote to the Staropromyslovskiy District Prosecutor asking for news about the investigation into her relatives’ murder. She did not receive a reply. 36. On 28 May 2004 the Staropromyslovskiy District Prosecutor’s Office granted victim status to the applicant’s brother Shamsudin Tangiyev in criminal case no. 33024 concerning the murder of his parents and uncle in Grozny on 11 January 2000. 37. In March 2005 the application was communicated to the Russian Government, who were requested at that time to submit a copy of investigation file no. 33024. In their memorials submitted in reply the Government gave some details of the investigation, without specifying the dates of the investigative measures. They did not submit any copies of the documents to which they referred. The Government stated that the investigation was pending and that the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”. 38. In May 2006 the Court declared the application admissible and reiterated its request for the documents. In response, the Government submitted an update of the investigation and several documents from the criminal investigation file (see Part B below). They did not submit any of the witness statements or other important procedural documents, such as descriptions of the sites or results of the ballistic expert reports. 39. Referring to the information from the Prosecutor General’s Office, the Government submitted in their memorials that the investigation had established that between January and February 2000 detachments of the federal forces had conducted a counterterrorist operation in the Staropromyslovskiy district of Grozny. Within the same period several inhabitants of the district, including the applicant’s relatives, had been killed by unknown persons. 40. The Government submitted that a number of investigative measures had been carried out by the prosecutors. On 17 April 2004 they inspected the Tangiyevs’ house. On 28 May 2004 the applicant’s brother Shamsudin Tangiyev was questioned and granted victim status in the proceedings. On 5 May 2004 the applicant, her sister and two relatives were also questioned and granted victim status in the proceedings. On the same day the investigating officers recovered from the applicant two cartridges she had collected near the body of her father. A ballistic examination was carried out and concluded that they were the type of ammunition used for a 5.45 mm calibre automatic rifle and could be used to identify the firearm used. 41. The Government submitted that the applicant and her relatives had refused to allow the bodies of their relatives to be exhumed for forensic tests to be carried out. They had also refused to identify their places of burial, which made it impossible to establish the cause of their deaths. 42. The Government further informed the Court that between April and July 2004 the investigating officers had questioned more than twenty neighbours and acquaintances of the Tangiyevs, who had stated that they had no information about the perpetrators of the killings. One witness stated that the Staropromyslovskiy district had been the scene of heavy fighting between the federal forces and the illegal armed groups. Another witness stated that the applicant’s father had had a dispute with the members of the illegal armed groups. The investigators failed to identify the relatives and the place of burial of Valentina Fotiyeva, the woman who had been killed in the Tangiyevs’ house. 43. The investigators looked into the possibility that the killings could have been committed by the servicemen, but found no information to support it. According to the information from the Northern Caucasus Military Circuit, between January and February 2000 the detachments of the federal forces in the Staropromyslovskiy district had been subjected to numerous attacks by illegal armed groups, who could be implicated in the killings. On 3 June 2005 a military prosecutor questioned the commander of one of the military units which had taken part in the counterterrorist operation in Grozny. He stated that he had not been aware of the applicant’s relatives’ killings. The prosecutors continued to carry out investigative measures with the participation of the servicemen. 44. According to the Government, the victims had been systematically informed of the adjournments and reopening of the case. The investigation was pending with the Staropromyslovskiy District Prosecutor’s Office and was under the special supervision of the Prosecutor General’s Office. 45. In November 2004 the applicant submitted additional documentary evidence in support of her allegations. In addition to her own detailed statements of facts, the applicant submitted three witness statements. 46. The applicant’s sister Khanifa Gazdiyeva stated that on 10 January 2000 they had decided to leave Grozny on the following day because of constant harassment by soldiers. In the morning of 11 January 2000 the witness, along with the applicant and two women named Galina and Birlant M., went to collect her parents and uncle from their house at Derzhavina Street. She then described how they had discovered the bodies of her father and of Valentina, both with gunshot wounds to the head. The house was turned upside down and there were a lot of bullet holes. Some of the furniture was smouldering, the cellar door was closed and smoke was coming out of it. The women took two bodies out of the house but could not extinguish the flames in the cellar. They then left the bodies with the neighbour out of fear that the soldiers might return and kill them as witnesses, and left Grozny on the same day. They buried their father’s body on 12 January 2000. On 6 March 2000 the remains of their mother and uncle were removed with the assistance of Emercom and buried in Ingushetia. 47. The applicant’s cousin, Magomet Gadaborshev, testified about the death of his father, the applicant’s uncle. The witness himself was in Ingushetia at the relevant time and learnt of his father’s death from the applicant and other relatives. 48. The applicant’s neighbour in Grozny, “Galina P.”, testified that she had been with the applicant and her sister on 11 January 2000 when they had found their parents’ and uncle’s bodies in the house at Derazhavina Street. The witness submitted that the Chechen fighters (“boyeviki”) had left the district by mid-December, and that before that they had caused no harm to the residents, and had sometimes even helped them. From 25 December 1999 the Russian servicemen started to enter the Staropromyslovskiy district. Some of the soldiers helped them and gave them food. Others asked them, sometimes under threat, to help them collect the dead bodies of servicemen, because the “fighters” would not shoot at civilians. She corroborated the relatives’ statements about the discovery of the bodies on 11 January 2000. 49. In addition to the documents submitted by the applicant, in the proceedings in the case of, Makhauri v. Russia (application no. 58701/00), the Government submitted a copy of the investigation file in criminal case no. 14/33/0262 (joined in July 2004 with criminal case no. 50100) opened by military investigators in relation to an attack on Mrs Makhauri in January 2000 in the Staropromyslovskiy district. The file also contained a witness statement by Galina P. (born in 1937), made during the investigation in August 2000. On the basis of this information, in 2000 the military investigators requested the Grozny Town Prosecutor’s Office to give them information about the murder of the three members of the Tangiyev family and the woman named Valentina. It appears that no reply was received. 50. Galina P. stated to the military investigators that in winter 1999-2000 she had remained in Grozny. She moved in to the Tangiyevs’ house at Derzhavina Street, where nine people had stayed in the cellar, and remained there until 24 December 1999. Then they moved to another house, at 144 Pugacheva Street, because the shelling had become too intense and the first house had been damaged. About sixty people, mostly elderly, had stayed in the big cellar at 144 Pugacheva Street. The Chechen fighters left their district around 18 December 1999. The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve the wounded and dead. On 1 or 2 January 2000 the three youngest men from the cellar (aged below 50) had been taken away by soldiers and later found dead. The witness described the soldiers as wearing blue-grey camouflage uniforms. She also testified that on 10 January 2000, along with the two Tangiyev sisters, she visited their house, where four persons had been staying: Abdul-Vagap Tangiyev, his wife Khirzhan Gadaborsheva, his brother Ismail Gadaborshev and an elderly woman, “Valya”. They found the bodies of Mr Tangiyev and Valya in the house with gunshot wounds, while the cellar was closed and burning. A neighbour told them to leave because the killers could return, and later told them that he had buried the four bodies in the courtyard. On the same day, on 10 January 2000, the witness left for Ingushetia. 51. In September 2006 the Government submitted about seventy pages of documents from the file of the criminal investigation carried out into the murder of the applicant’s parents and uncle. Those documents include the prosecutors’ decisions to open, transfer, adjourn and reopen the investigation, and to grant victim status to the applicant and her brother. They can be summarised as follows. 52. On 3 May 2000, following the publication of “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000, the Grozny Town Prosecutor’s Office opened criminal investigation file no. 12038 under Article 105 part 2 of the Criminal Code (murder of two or more persons in aggravating circumstances) “concerning mass murder by the ‘205th brigade’ of members of the civilian population in the Katayama settlement in Grozny on 19 January 2000”. In connection with these proceedings the applicant and her brother were questioned in May and June 2000. 53. On 14 August 2003 an investigator of the Grozny Town Prosecutor’s Office decided that the killing of four persons at 166 Derzhavina Street had constituted a separate episode and forwarded the relevant part of the file to the Staropromyslovskiy District Prosecutor for further investigation. 54. On 20 August 2003 the Staropromyslovskiy District Prosecutor’s Office refused to carry out an investigation under Article 24 part 1 paragraph 2 of the Code of Criminal Procedure – due to the absence of information indicating that the deaths had occurred as a result of criminal actions. The investigator stated that the information about the circumstances of the applicant’s relatives’ deaths had been incomplete. Turning to the applicant’s statement, he concluded that the deaths and the fire in the house had most probably been a result of shelling, because at the relevant time the district had been the scene of heavy fighting. In the absence of more reliable information about the reasons and circumstances of the deaths, the investigation was closed. 55. On 2 April 2004 the Chechnya Prosecutor’s Office quashed that decision. On 16 April 2004 the Staropromyslovskiy District Prosecutor’s Office opened criminal investigation file no. 33024 under Article 105 part 2 of the Criminal Code into the applicant’s relatives’ murder. 56. In May 2004 the applicant’s brother, and in May 2005 the applicant, were granted victim status in the proceedings. 57. At different stages of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators. On 26 August 2004 a prosecutor from the Staropromyslovskiy District Prosecutor’s Office ordered, among other things, that a plan of action be drawn up, that steps be taken to locate the places of burial and to carry out exhumations and forensic tests, that the bullets and cartridges from the crime scene be collected and sent for examination by a ballistic expert, that more personal information about the victims be collected, including the identification of the relatives of Valentina Fotiyeva. Similar orders were issued in October 2004, April and December 2005. 58. Between April 2004 and August 2006 the investigation was adjourned and reopened seven times. The latest document in the case-file reviewed by the Court is dated 14 August 2006. The prosecutor of the Staropromyslovskiy District Prosecutor’s Office resumed the investigation and again ordered the collection of missing information about the victims, the identification and questioning of other possible witnesses to the crime, including Galina P., and the implementation of other steps to identify the perpetrators of the killings. 59. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 60. Article 161 of the new Code of Criminal Procedure establishes the rule of impermissibility of disclosing data from the preliminary investigation. Under paragraph 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and 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. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
| 1
|
train
|
001-76125
|
ENG
|
SVN
|
CHAMBER
| 2,006
|
CASE OF MULEJ v. SLOVENIA
| 4
|
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
David Thór Björgvinsson;John Hedigan
|
5. The applicant was born in 1953 and lives in Štore. 6. On 23 December 1998 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZM. 7. On 29 July 1999 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,100,000 Slovenian tolars (approximately 8,750 euros) for the injuries sustained. Between 19 March 2002 and 20 November 2002 the applicant lodged four preliminary written submissions and/or adduced evidence. On 12 January 2001 and 5 December 2001 he made requests that a date be set for a hearing. Of the two hearings held on 28 March 2002 and 10 December 2002, none was adjourned at the request of the applicant. During the proceedings, the court appointed a medical expert. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 21 January 2003. On 1 June 2004 the District Court issued a decision on the correction of the judgment, which was served on the applicant on 10 June 2004. 8. In the meantime, on 23 January 2003, the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 28 September 2005 the court allowed the applicant’s appeal in part and increased the damages awarded. The judgment was served on the applicant on 18 October 2005.
| 1
|
train
|
001-57507
|
ENG
|
GBR
|
CHAMBER
| 1,986
|
CASE OF JAMES AND OTHERS v. THE UNITED KINGDOM
| 2
|
No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 6-1;No violation of Art. 13
|
C. Russo;Gaukur Jörundsson
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10. The applicants are or were trustees acting under the Will of the Second Duke of Westminster. The first applicant, John Nigel Courtenay James, is a chartered surveyor resident in London. The second applicant, Gerald Cavendish the Sixth Duke of Westminster, resides at Chester. The third applicant, Patrick Geoffrey Corbett, is a chartered accountant resident in Sussex. The fourth applicant, Sir Richard Baker Wilbraham, is a banker in London. The fourth applicant was appointed as trustee on 31 December 1981 in place of the third applicant, who retired. In the area of Belgravia in Central London, upon a site which was once farmland on the outskirts of the City of London, the Westminster family and its trustees have developed a large Estate comprising about 2,000 houses which has become one of the most desirable residential areas in the capital. The applicants, as trustees, have been deprived of their ownership of a number of properties in this Estate through the exercise by the occupants of rights of acquisition conferred by the Leasehold Reform Act 1967, as amended. 11. This legislation confers on tenants residing in houses held on "long leases" (over, or renewed for periods totalling over, 21 years) at "low rents" the right to purchase compulsorily the "freehold" of the property (the ground landlord’s interest) on prescribed terms and subject to certain prescribed conditions (see paragraphs 20 to 26 below). Under the system of long leaseholds, a tenant will typically purchase a long lease of property for a capital sum and pay a small or even nominal rent for it thereafter. The lease is a real-property interest, registerable in the Land Registry. The legislation in issue in the present case is not concerned with the ordinary system of rented tenure under which the tenant pays a "rack rent" reflecting the full annual value of the property. The landlord/tenant relationship under the ordinary system is regulated, for houses under a certain (rateable) value, by separate legislation in the form of the "Rent Acts", which provide machinery for fixing "fair rents" and provide certain security of tenure for tenants. 12. Two principal forms of long lease of residential property exist. The first is a building lease, typically for 99 years, under which the tenant pays a "ground rent" - a low rent fixed by reference to the value of the bare site - and undertakes to erect a house on the site and in general also to deliver it up in good repair at the end of the lease. The second is a premium lease where the tenant pays the landlord a capital sum or "premium" for a house provided by the landlord, and thereafter a rent. The duration of the lease is variable, as are the relative proportions of premium and rent. According to evidence submitted to the Court, the premium charged will typically take into account the building cost and an appropriate profit element. Factors entering into the calculation will normally include the length of the proposed lease, its terms (for example, whether sub-letting is allowed) and the state of the property at the time when the lease is granted. The method used to calculate the premiums under the leases concerned in the present case is described below (paragraph 27). The distinction between the two types of lease is not clear-cut. For example, a "premium lease" may contain an obligation to carry out substantial repairs, alterations, additions or improvements to an existing property, and thus be analogous to a building lease. In any event, it is the almost invariable practice for the lease to contain a clause making the tenant responsible for all running repairs to the house during the currency of the lease and requiring him to yield up the property at the end of the lease in good repair. The tenant holding a property under a long lease may normally sell the lease to a third party, who then acquires the tenant’s rights and obligations under the lease for the remainder of its duration. In practice, leases are commonly bought and sold on the property market without the landlord playing any part in the transaction. A tenant may normally also grant an "under-lease" of the property. As a matter of law, however, whether there is a right to sell the lease or sublet depends on the terms of the particular lease. 13. The capital value of the landlord’s interest in a property let on a long lease arises from two sources: firstly, the rent payable under the lease and, secondly, the prospect of reversion of the property to him at the end of the lease. At the beginning of a very long lease the value of the reversion may be very little and the total market value of the landlord’s interest may therefore amount to little more than the capitalised value of the rent. The capital value of the tenant’s interest arises from his right to occupy the house under the lease, and the time for which that right will subsist is of critical importance in relation to its value. At the beginning of a very long lease, the value of the tenant’s interest may be more or less equivalent to a "freehold" interest if the rent payable is a nominal one. The lease, however, is a wasting asset. As a lease progresses, the value of the tenant’s interest in the property diminishes, whilst the value of the landlord’s interest increases. At the end of the lease, the tenant’s interest ceases to exist and the buildings, including improvements and repairs made, revert to the landlord without any compensation to the tenant. The sum of the values of the landlord’s and tenant’s respective interests is less than the freehold value of the property with vacant possession, since neither the landlord alone nor the tenant alone can offer a third party the freehold with such possession. If, however, the reversion is sold to the occupying tenant, who can then merge both interests into a simple freehold, its value is greater than the investment value to a third party purchasing the reversion subject to the existing lease. In free market transactions, it is usual for the vendor and the purchaser to share this additional value, known as the "merger value", in agreed proportions. 14. The long-leasehold system of tenure has been widely used in England and Wales, and in particular was associated with much urban development in the nineteenth century following the industrial revolution. 15. From about 1880 onwards, demands began to be made for "leasehold enfranchisement", that is the right for tenants to purchase compulsorily the freehold of their holdings. Between 1884 and 1929, a number of unsuccessful Bills to grant some measure of leasehold enfranchisement were introduced into Parliament. 16. Demand for reform of the law revived soon after the Second World War and in 1948 a Committee (the Leasehold Committee) was appointed by the Lord Chancellor to consider various aspects of the leasehold question. In their report, presented to Parliament in 1950 (Command Paper Cmd 7982), the majority of the Committee came out against giving tenants a right of enfranchisement. They concluded that there were both general objections of principle and practical obstacles to such a course of action. They further believed that "leasehold enfranchisement ... would not be in the public interest" (paragraph 100). They did, however, recommend that occupying tenants of houses under a certain rateable value should have security of tenure under the Rent Acts. The minority report of the Committee drew attention to the strong and bitter sense of injustice felt by long leaseholders in the case of building leases and recommended that certain occupying tenants should have a right of leasehold enfranchisement by compulsory purchase. The Labour Government of the day did not have time to put forward any permanent legislation following the Leasehold Committee’s report. The Conservative Government elected in 1951 accepted the majority view of the Committee, and its recommendations were enacted in the Landlord and Tenant Act 1954 ("the 1954 Act"). In broad terms, the effect of this Act was - and still is - that on the expiry of a long residential lease the tenant should have the right to continue occupying the house as a sitting tenant under the Rent Acts, paying a "fair rent" as defined in those Acts and enjoying the security of tenure afforded by the ordinary rent legislation. This privilege is transferable on death to other members of the tenant’s family residing in the property. 17. Public discussion of the matter continued. In 1961, claims were made in Parliament that leaseholders were being subjected to hardship as a result of the onerous terms which landlords were asking for the sale of reversions or for the extension or renewal of existing leases. Enquiries were made by the Government who invited the bodies representing professions most experienced in the field (solicitors, surveyors, auctioneers, estate and property agents) to report on the practice of ground landlords in this respect. In July 1962, a White Paper was published presenting a summary of their assessments (Residential Leasehold Property - Command Paper Cmnd 1789). In general, the professional bodies appeared to find that the existing system worked adequately, although there was widespread dissatisfaction among tenants as to the limited nature of the interest they held. 18. For some years compulsory enfranchisement had been part of Labour Party policy. After the election of a Labour Government in 1964, a further White Paper was published in 1966 setting out the Government’s proposals for reform including a scheme of compulsory enfranchisement (Leasehold Reform in England and Wales - Command Paper Cmnd 2916). The grounds on which the Government considered reform to be necessary were set out as follows: "The purpose 1. This White Paper is concerned with residential long leases particularly those granted originally in the latter half of the last century. In the case of long leases, experience has shown that the system has worked very unfairly against the occupying leaseholder. The freeholder has provided the land; but in the great majority of cases it is the leaseholder or his predecessor in title who at their own expense have built the house on the land. Whether this is so or not in all cases, it is almost universally true that over the years it is the lessee and his predecessors who have borne the cost of improvements and maintenance, and these will probably have cost far more than the original building itself. At their expense the leaseholders have preserved it as a habitable dwelling and have used it as such, and not unnaturally, an occupying leaseholder who at the end of the term has lived in it for such a period of years regards it as his family home. It is in such cases quite indefensible, if justice is to be done as between freeholder and occupying leaseholder, that at the end of the term, the law should allow the ownership of the house to revert to the freeholder without his paying anything for it so that he gets not only the land but also the house, the improvements and everything the leaseholder and his predecessors have added to it. 2. The Government has decided that a solution must be found to right this injustice. In the Government’s view the basic principle of a reform which will do justice between the parties should be that the freeholder owns the land and the occupying leaseholder is morally entitled to the ownership of the building which has been put on and maintained on that land. 3. Two circumstances make reform a matter of urgency. First, most people buy their house on mortgage and for them the leasehold system works particularly harshly. A purchaser on mortgage may pay virtually the freehold price for a lease with a good many years to run but as he reaches the end of his mortgage term he will feel a sharpening sense of injustice. He will realise that after he has discharged the mortgage he will have an interest far less valuable than it was when he bought it, and difficult to sell because a subsequent purchaser may not be able to get a mortgage. This is the reality now confronting many owner occupiers who purchased their houses on setting up home immediately after the war. Second, a great many leasehold estates were built in the second half of the nineteenth century when landowners used their monopoly power to prevent development taking place on other than leasehold terms. This occurred particularly in South Wales and in some English areas. These leases are beginning to fall in and the leaseholders are now experiencing the full harshness of the leasehold system. The Plan 4. The Government will, therefore, introduce a Bill to give leaseholders with an original long lease greater security and to enable them to acquire the freehold on fair terms. The Bill will be based on the principle that the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder. It follows that the leaseholder will have the right to retain his house after the lease expires and the right to enfranchise his lease." The White Paper contained details of the Government’s proposals to allow certain qualified leaseholders to acquire the freehold or obtain a fifty-year extension of their existing lease. The Government’s proposals as to the terms of enfranchisement were explained as follows in paragraphs 11 and 12 of the White Paper: "11. Subject to provision for special cases, a qualified leaseholder will have the right at any time during the original term of the lease to acquire the freehold by buying out the landlord compulsorily. It is important to ensure that the price paid for enfranchisement is a fair price. But present market prices reflect the position under the present law which is inequitable to the leaseholder, and the price for enfranchisement must accordingly be based not on present market values but on the value of the land itself, including any development value attaching to it. The price of enfranchisement must be calculated in accordance with the principle that in equity the bricks and mortar belong to the qualified leaseholder and the land to the landlord. 12. It follows, and the Bill will so provide, that where there is no development value (and often there will not be) the fair price for enfranchisement will be the value of the freehold interest of the site, subject to the lease and its extension of 50 years. This will completely disregard the value of the building on reversion." 19. Thereafter, following their re-election in 1966, the (Labour) Government introduced a Bill into Parliament to give effect to their proposals. During the Parliamentary proceedings, the (Conservative) Opposition accepted the principle, enunciated in their 1966 Election Manifesto, that there should be legislation "to allow ground leaseholders to buy or rent their houses on fair terms except where the property is to be developed", but they opposed the terms in the Bill as being confiscatory. They argued that the case for basing the price of enfranchisement solely on the site value rested on a wholly false argument that the house belonged to the leaseholder. In fact, he had only purchased a right to live in it for a specified period. Market prices should be paid for what belonged to the landlords. In the parliamentary debates on the Bill, members of all political parties expressed the view that the 1954 Act, which provides security of tenure (see paragraph 16 above), had not succeeded in relieving the hardship or injustice caused to tenants at the expiry of long leases. Two of the reasons given were the continuing liability of the tenant to pay freshly assessed rents and the potential burden of heavy claims for dilapidations which some landlords used as a means of persuading tenants to give up their statutory right of possession. One criticism which was made of the provisions of the Bill was that it did not distinguish between "deserving" and "undeserving" tenants and did not provide machinery for a court or tribunal to determine whether it was reasonable to make an enfranchisement order in favour of the tenant. The reason given for rejecting this criticism was the concern that, in view of the very large number of houses held on long leases, a system whereby the reasonableness of the enfranchisement would have to be established in each individual case would inevitably give rise to considerable uncertainty, to delay, to litigation in many cases and, no doubt in some tenants, to the feeling that it might be too expensive to venture on the uncertain exercise. Another point raised in the debates arose from the fact that, under the Bill, the right of enfranchisement would be restricted to the tenants of houses under a certain value. It was argued that if the leasehold system worked unjustly for the reasons suggested by the Government, then logically it must work unjustly in respect of all tenants, regardless of the value of the house. The reasons put forward by the Government spokesmen for confining the applicability of the legislation to houses below a certain value were essentially as follows: (a) it was appropriate for legislation improving the position of leaseholders to apply to the same class of property as the Rent Acts; (b) the Government had tried to define the cases of greatest hardship which justified them in rectifying existing contracts; the precedent had therefore been followed of the limits set by the Rent Acts; whilst it might be argued on grounds of logic and consistency that no limit should be set, that would involve rectification to an unnecessary degree; (c) to a degree the Government were influenced by the large capital gains which could be made by some tenants if the limits were removed entirely. After extensive debate in both Houses of Parliament, the Bill introduced by the Government was duly enacted as the Leasehold Reform Act 1967. There were about one and a quarter million dwellinghouses occupied by long leaseholders in England and Wales in 1967. It was estimated at the time by the Government that all but one or two per cent fell within the scope of the enfranchisement scheme introduced by the Act. Subsequently, as a result of an amendment introduced in 1974, a band of more valuable houses within this remaining one or two per cent was also made susceptible of enfranchisement (see paragraph 21 (b) below). 20. The legislation governing leasehold enfranchisement now consists of the Leasehold Reform Act 1967 ("the 1967 Act"), as amended by the Housing Act 1969 ("the 1969 Act"), the Housing Act 1974 ("the 1974 Act"), the Leasehold Reform Act 1979, the Housing Act 1980 ("the 1980 Act") and the Housing and Building Control Act 1984. This legislation provides occupying tenants of "houses" let on long leases in England and Wales with the right to acquire the freehold of the house, or an extended lease, on certain terms and conditions. The term "house", as defined, includes semi-detached and terrace houses but not flats and maisonettes (section 2 of the 1967 Act). 21. The following, in broad terms, are the principal conditions which must be satisfied before the tenant of a house becomes entitled to the right of acquisition conferred by the Act: (a) The tenancy must be a "long" tenancy, that is either for a term certain of 21 years or more or for a lesser term once it has been renewed for periods totalling over 21 years (sections 1 and 3 of the 1967 Act). (b) With certain exceptions not relevant for present purposes, the "rateable value" of the house (that is, the notional annual rental value fixed for local taxation purposes) must not exceed £750, or £1,500 if the house is in Greater London (section 1 of the 1967 Act as amended by section 118 of the 1974 Act). The original rateable-value limits fixed in the 1967 Act (£200 and, for Greater London, £400) were revised (in effect being raised to £500 and £1,000, respectively) by the 1974 Act to take account of the country-wide rating revaluation carried out in 1973. The 1974 Act further extended the scope of the enfranchisement scheme under the 1967 Act by bringing in houses of a still higher rateable value (between £500 and £750 and, for Greater London, between £1,000 and £1,500), in respect of which, however, a different purchase price was payable (see paragraph 23 below). Certain even more valuable properties, being outside the global rateable-value limits, remain outside the ambit of the legislation altogether. (c) The annual rent must be a "low" rent, that is less than two-thirds of the rateable value (sections 1 and 4 of the 1967 Act). (d) The tenant must occupy the house as his only or main residence and must have done so for at least three years prior to the time when he gives notice of his desire to exercise his rights under the Act (section 1 of the 1967 Act as amended by section 141 and schedule 21 of the 1980 Act - the 1967 Act originally provided for a five-year minimum period). 22. Where the above conditions are satisfied the tenant has two rights: (a) he can obtain a fifty-year extension of the lease at a rent representing the letting value of the ground (without buildings), the rent being subject to revision after 25 years (sections 14 and 15 of the 1967 Act); (b) he can purchase the freehold on the terms outlined below (section 8 of the 1967 Act). The tenant can set in motion the procedure for exercising his right to purchase the freehold at any time up to the original term date of the lease, but not thereafter (section 16 of the 1967 Act). 23. No price or premium is payable for an extended lease other than the rent. On the purchase of a freehold, a price is payable to the landlord as determined in accordance with one or other of two bases of valuation. These are referred to as the "1967 basis of valuation", which was introduced by the 1967 Act (as amended by the 1969 Act), and the "1974 basis of valuation", which was introduced by the 1974 Act. The 1967 basis applies to less valuable properties, and the 1974 basis to the small percentage of more valuable properties (see paragraphs 19 in fine and 21 (b) above) brought within the scope of the legislation for the first time by the 1974 Act. The essential features of the two bases of valuation may be summarised as follows: (a) The 1967 basis of valuation applies to properties with a rateable value of up to £500, or £1,000 if the house is in Greater London. The price payable is the amount which the house, if sold on the open market by a willing seller, might be expected to realise on the assumptions, inter alia, that (i) the tenant has exercised his statutory right to obtain an extension of the lease for fifty years, and (ii) the purchaser is someone other than the tenant (section 9 of the 1967 Act, section 82 of the 1969 Act and section 118 of the 1974 Act). The effect of the assumption as to the extension of the lease is that the tenant pays approximately the site value, and pays nothing for the buildings on the site. The assumption that the purchaser is someone other than the tenant, introduced by the 1969 Act, also excludes any element of "merger value" from the price (see paragraph 13 above). This basis of valuation reflects the policy outlined in the 1966 White Paper (see paragraph 18 above). (b) The 1974 basis of valuation applies to properties with rateable values of over £500 and up to £750, or over £1,000 and up to £1,500 if the house is in Greater London. The price payable is the amount which the house, if sold on the open market by a willing seller, might be expected to realise on the assumption, inter alia, that at the end of the tenancy the tenant had the right to remain in possession of the house under the 1954 Act, that is as a statutory tenant paying a "fair rent" reflecting his occupation of the house (see paragraph 16 above - section 9 of the 1967 Act as amended by section 118 of the 1974 Act). In principle, this basis of valuation is more favourable to the landlord and is intended to provide a price approximately equivalent to the market value of the site and house, assuming it to be tenanted under the 1954 Act; it also allows the landlord a share of the "merger value". However, in a case where a tenant had obtained a fifty-year extension of the lease and subsequently, before expiry of the original term date of the tenancy, applied for the freehold, it was held by the Lands Tribunal (see paragraph 25 below) that the assessment of the compensation had to be on the basis of the tenant having extended his lease (Hickman v. Phillimore Estate (1985) Estates Gazette, Vol. 274, p. 261). In such circumstances, therefore, the landlord receives substantially less than the above market value in compensation. The Government recognised at the hearings before the Court that this decision had identified a loophole in the 1974 Act that needed to be cured by amending legislation. The Court has since been informed by the Government that the decision of the Lands Tribunal has been set down for appeal. Special provisions apply for extinguishing any intermediate lease where the occupying tenant claiming enfranchisement does not hold his lease direct from the freeholder (schedule 1 to the 1967 Act). These provisions do not, however, appear to be relevant in the present case. 24. The tenant may, at any time before the price of the property has been fixed, institute a procedure to have the rateable value of the house adjusted for the purposes of the legislation so as to leave out of account the value of structural improvements carried out by himself or his predecessors (section 118 and schedule 8 of the 1974 Act). The County Court is competent to determine disputes as to whether improvements are within the scope of the scheme and, since the 1980 Act came into force, there has been a right of appeal to the High Court from such decisions. 25. The legislation lays down procedures for carrying the relevant transactions into effect and for determining disputes. Where the tenant wishes to acquire the freehold, he must first give the landlord written notice of his desire to do so (section 8 of the 1967 Act). Disputes over the tenant’s entitlement to acquire the freehold under the Act and related matters are within the jurisdiction of the County Court (section 20 of the 1967 Act). In such proceedings, the County Court has powers to penalise in costs a tenant who is guilty of unreasonable delay or default in the performance of the obligations arising from the notice of enfranchisement (ibid.). In default of agreement, the price payable is now subject to determination by a local Leasehold Valuation Tribunal, with a right of appeal to the London-based Lands Tribunal which forms part of the High Court (section 142 and schedule 22 of the 1980 Act). Before the 1980 Act came into force, disputes as to price were within the jurisdiction of the Lands Tribunal (section 21 of the 1967 Act). It is open to a landlord who believes that the enfranchising tenant is deliberately or unnecessarily delaying the process of enfranchisement to refer the matter to the Leasehold Valuation Tribunal (or, formerly, to the Lands Tribunal). Regulations prescribe a timetable for completion of the purchase after the price has been determined (paragraph 6 of Part I of the schedule to the Leasehold Reform (Enfranchisement and Extension) Regulations 1967, S.I. 1967 No. 1879). 26. For the purpose of assessing the price payable, the house is valued as at the date of the tenant’s notice to the landlord of his desire to acquire the freehold (sections 9 (1) and 37 (1) (d) of the 1967 Act), and not as at the date when the valuation is being carried out. 27. In transactions completed between April 1979 and November 1983, the tenants of some 80 long leasehold properties forming part of the residential Estate in Belgravia (London) which the Westminster family and its trustees have developed (see paragraph 10 above) exercised their powers under the contested legislation to acquire compulsorily the applicants’ interest as freehold owners of the properties. These transactions related to 77 properties held on "premium" leases and 3 properties held on "building" leases (see paragraph 12 above). The applicants explained that under the practice followed by the Estate at the time, the premiums were calculated on the following basis: first the rent under the lease was fixed as a percentage of the estimated market rent obtainable and then the premium was the calculated capitalised value of the balance of the estimated market rent over the term of the lease. The relevant properties were valued on the 1967 basis in 28 transactions and on the 1974 basis in 52 transactions (see paragraph 23 above). As time passes, according to the applicants, the 1974 Act will affect an increasingly higher ratio of properties on their Estate. Since November 1983, another 43 enfranchisements have taken place, bringing up to a total of about 215 the number of properties enfranchised on the Estate under the leasehold reform legislation to date. The applicants estimate that there are likely to be between 500 to 800 further enfranchisements on their Estate in the future. 28. In each of the 80 transactions the subject of the present case, the price paid was fixed by negotiation. The applicants were advised by their legal advisers that they had no grounds for disputing the right of any of the tenants to acquire the freehold, and that they could not reasonably hope to obtain a higher price for any of the relevant properties in proceedings before the Lands Tribunal or, in respect of the more recent transactions, a Leasehold Valuation Tribunal. 29. The applicants drew attention to the following features of the individual transactions in question: (i) in no case except 3 was the property built either by the tenant who enfranchised or by the tenant’s predecessors; (ii) in only 6 cases was the property occupied by members of the tenant’s family continuously since the date of creation of the lease; (iii) the period of occupation of the tenant prior to the date of his or her notice to acquire had varied from three to thirty-five years; in 34 out of the 80 instances, it had been under eight years; (iv) in all the cases, the tenant was entitled to security of tenure, subject to the conditions laid down by the Rent Acts, upon expiry of the lease (see paragraph 16 above); (v) the period between the tenant’s notice (the relevant date for assessment of the price - see paragraph 26 above) and completion of the sale varied between one and thirteen years, and in 34 of the 80 transactions was more than five years; (vi) the unencumbered freehold value of the properties (as assessed by the applicants) varied from £44,000 to £225,000, whereas the price paid for enfranchisement by the tenant varied from £2,500 to £111,000; (vii) the value of the unexpired portion of the lease to the tenants was said to be up to £153,750 - without taking into account the right to enfranchise; (viii) in 15 cases, the tenant sold the lease, after making the claim but before enfranchising, with the benefit of the right to enfranchise; (ix) in at least 25 out of the 80 cases, the tenant who enfranchised did not remain in occupation of the property, but sold the freehold within one year of acquiring it, and in 9 of these cases did not occupy after enfranchisement at all; (x) the profits said to have been made by the tenants on such onward sale varied from £32,000 to £182,000, with at least 7 cases where the tenant made over £100,000; in particular in one case, the tenant who had come into occupation three months before publication of the 1966 White Paper (see paragraph 18 above) - and who had paid a low price (£9,000) for the lease, without prospect of enfranchisement at that time - was able to buy the freehold at 28 per cent of its proper value (as assessed by the applicants), and sold it less than a year later for a profit of 636 per cent - a profit of £116,000. The losses claimed by the applicants to have been sustained through having to sell on the statutory terms as opposed to open-market conditions range from £1,350 to £148,080 on each transaction, and total £1,479,407 for properties in respect of which the 1967 basis of valuation obtained and £1,050,496 for properties in respect of which the 1974 basis of valuation obtained.
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train
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001-59112
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ENG
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POL
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CHAMBER
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CASE OF KAWKA v. POLAND
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Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award
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Elisabeth Palm
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7. On 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day he was remanded in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and axe. 8. On 25 March 1994 the Łódź Regional Court granted the prosecutor’s request for prolongation of the detention until 4 July 1994 in view of the need to take further expert opinions. On 5 April 1994 the Łódź Regional Court dismissed the applicant's request for release. 9. On 11 April 1994 the case was transferred to the Zgierz District Prosecutor. 10. On 26 April 1994 the Łódź Court of Appeal granted the applicant's request to have the decision of 25 March 1994 amended, and fixed the period for which the applicant's detention was authorised to 30 June 1994. 11. On 25 May 1994 the applicant requested his release. The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request. 12. On 15 June 1994 the applicant requested his release. On 17 June 1994 he underwent a psychiatric examination. 13. On 28 June 1994 the Łódź Regional Court, acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant's detention from 30 June until 30 September 1994. The court considered that the reasons for which the detention had been ordered had not ceased to exist. There was sufficient suspicion based on the evidence that the applicant had committed the offence with which he had been charged. The applicant had to undergo a further time-consuming psychiatric examination and further investigatory measures and evidence had to be taken. 14. On 15 July 1994 an additional psychiatric opinion was submitted to the prosecutor’s office. 15. On 19 July 1994 the Łódź Court of Appeal upheld the decision of 28 June 1994 considering that the detention had to be prolonged as the applicant's psychiatric examination had not been completed. 16. On 11 and 28 August 1994 the applicant requested to be released. His requests were on unspecified later dates dismissed by the Łódź Regional Court. 17. On 1 September 1994 the applicant requested the Regional Court to order his release. 18. On 5 September 1994 he was informed that the charges against him had been in part modified and he was given access to the case-file. 19. On 20 September 1994 the applicant was served with a bill of indictment. On the same day the prosecutor lodged the indictment to the Łódź Regional Court. 20. On 4 October 1994 the Łódź Regional Court dismissed the applicant's request for release of 1 September 1994, having examined it in the prosecutor’s presence. The court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia, by the two victims of the assault. The reasons for which the detention had been ordered still existed. The applicant had failed to indicate in his request any new circumstances capable of justifying this. 21. On 6 October 1994 the applicant's father appealed against this decision. He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention. 22. On 10 October 1994 the applicant's lawyer also lodged an appeal against the decision of 4 October 1994 with the Court of Appeal. He submitted that the court's conclusions as to the reasonableness of the suspicions against him were based on insufficient evidence as only the evidence given by the victims supported the charges laid against the applicant. The applicant's detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date, and no further decision relating to the prolongation of the detention had been issued by any authority. 23. On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994. The court first considered ill-founded the applicant's arguments that the suspicion against him lacked any legal or factual basis. The court further considered that the applicant's suggestion that his detention since 30 September 1994 was unlawful, was entirely erroneous. The applicant's lawyer must apparently have overlooked the fact that the bill of indictment had been lodged with the court on 21 September 1994. Therefore the time-limits provided for by Article 222 of the Code of Criminal Procedure of 1969 had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings. One might have thought, the court continued, that such manifestly obvious conclusion, which required only a cursory perusal of relevant provisions, should not have caused any interpretation difficulties. 24. The court fixed the date for the first hearing for 27 January 1995, but it was later adjourned. Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail, as the Łódź Regional Court dismissed all his requests. 25. On 5 June 1995 the court convicted the applicant of attempted manslaughter and sentenced him to five years' imprisonment. 26. At the material time, the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which was later repealed and replaced by the new Code of Criminal Procedure of 6 June 1997 (hereafter referred to as the “new Code of Criminal Procedure), which entered into force on 1 September 1998. 27. Under the 1969 Code, the grounds for imposing detention on remand and competent authorities were governed by the following provisions: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, those measures shall be ordered by the prosecutor (...)." "1. A decision concerning preventive measures may be appealed [to a higher court] .... 2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...." “A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.” “1. Detention on remand may be imposed if: ... (2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means; ... (4) an accused has been charged with an offence which creates a serious danger to society.” 28 29. Since 4 August 1996, and under the present criminal legislation, i.e. the new Code of Criminal Procedure, referred to above (see § 26), the courts have been, and are bound by the maximum statutory time-limits for which pre-trial detention can be imposed, during the entire course of the proceedings. 30. Under the provisions applicable at the material time, the courts, when ruling on a prosecutor’s request submitted to it pursuant to Article 222 the Code, were obliged to determine the precise period for which detention could be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately. 31. Presence of the parties at court sessions other than hearings on the merits was regulated at the relevant time in Articles 87 and 88 of the Code of Criminal Procedure of 1969 which provided, insofar as relevant: "The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..." "A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it." However, no rule provided for the attendance of the accused or his or her lawyer before the court in any type of the proceedings concerning detention on remand. 32. At the relevant time there were no specific provision governing detention on remand after the bill of indictment was lodged with the competent court. In particular, there was no provision to the effect that lodging a bill of indictment automatically prolonged or replaced previous detention order, or that this event itself resulted in detention, which had originally been prolonged by a court for a fixed period at the investigation stage, being continued either for an unlimited period, or until a judgment at first instance was given. Nor was there any case-law to that effect. Nevertheless, according to the domestic practice, once a bill of indictment had been lodged with the court competent to deal with the merits of the case, detention was assumed to be prolonged pending trial, without any further judicial decision being given. 33. Articles 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements that a bill of indictment had to satisfy, stated, inter alia, that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him or her. It also had to comprise a statement of the offence with which he or she had been charged, a detailed description of the facts of the case along with a statement of reasons for the accusation, an indication of the court competent to entertain the case, and the evidence upon which the accusation was founded. 34. On 6 February 1997 the Supreme Court, in an interpretative ruling of certain provisions of the Code of Criminal Procedure of 1969 as amended by the Law of 29 June 1995, addressed the problems posed by the practice of keeping an accused in detention under the bill of indictment. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after lodging a bill of indictment with the court competent to deal with the merits of the case, that court was obliged to give a decision prolonging detention on remand, which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows: “Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings. Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings. Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered. Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because ‘detention of limited duration’ had become ‘detention of unlimited duration’. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the code.” 35. In its further resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that: “If the case, in which detention on remand had been ordered, has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.” Referring to the resolution of 6 February 1997, it also stressed that: “ … the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case … It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (section 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings …” 36. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads: “1. Detention on remand shall be imposed by a court order. 2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case. 3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court." 37. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding whether the preventive measures should be imposed, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session concerning review of the lawfulness of pre-trial detention, if he or she is present at the court. However, it is not mandatory to inform the lawyer of the date and time of this session, unless the suspect so requests, and if it will not hinder the proceedings. 38. The court shall inform the lawyer of a detainee of the date and time of court sessions at which a decision, concerning prolongation of detention on remand or an appeal against a decision to impose or to prolong detention on remand, is to be taken. A failure on the part of the duly informed lawyer to attend the session does not prevent the court from pursuing examination of the issue. 39. The applicant lodged his application with the Commission on 22 August 1994, alleging, inter alia, that the courts were arbitrary in their decisions relating to his detention. He complained in particular that for a certain unspecified period as from 30 September 1994 his detention on remand had lacked legal basis, as no decision of a competent authority had been given in order to prolong it beyond that date. The applicant complained that he had never been brought before a court in the proceedings concerning the review the lawfulness of his detention on remand. He finally complained that under domestic law applicable at the material time, neither he nor his lawyer had been entitled to attend any hearing in the proceedings concerning review of the lawfulness of his detention. 40. The application was declared partly admissible by the Commission on 17 May 1995. On 7 July 1997 the Commission declared admissible the applicant’s complaints under Article 5 §§ 1 and 4 of the Convention. In its report of 8 September 1998 (former Article 31 of the Convention) it expressed the unanimous opinion that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention under the bill of indictment had been unlawful, and that there had been a violation of Article 5 § 4 of the Convention in that the proceedings concerning review of his detention on remand had not been truly adversarial. 41. The applicant submitted that his detention on remand, insofar as it had been effected under the bill of indictment of 21 September 1994 and after the detention order of 28 June 1994 had expired, had not been in compliance with Article 5 § 1 of the Convention, which states, insofar as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; …” 42. The applicant submitted that his detention from 30 September to 4 October 1994 lacked any legal basis, and requested the Court to accept the opinion expressed by the Commission in its report that there had been a violation of Article 5 § 1 (c) of the Convention. 43. The Government acknowledged that the situation complained of had arisen out of a common practice of the Polish courts, referred to as “placing a detainee at the disposal of a court”, followed at the material time. This practice originated from the absence of any precisely formulated provision which would oblige the court to give, on its own motion, any further decision on the prolongation of detention after the bill of indictment had been submitted to the court. 44. The Government emphasised that this practice had been abandoned since 4 August 1996, when the amendments to the Code of Criminal Procedure of 1969, enacted on 29 June 1995, had entered into force. Under these provisions, statutory time-limits of pre-trial detention had been introduced. Subsequently, the relevant provisions of the new Code of Criminal Procedure, which entered into force on 1 September 1998, had put an end to this practice. Under the provisions of the new Code, as currently interpreted in accordance with the case-law of the Supreme Court, following an expiry of a detention order given in the investigative stage of the proceedings and after the bill of indictment had been lodged with a court, a case must be referred to a court for a decision on further detention. Following interpretation of the relevant provisions by the Supreme Court, the new practice has been implemented by the courts. 45. The Government did not contest that the applicant’s detention had been maintained after 30 September 1994 without a judicial decision being given as to its prolongation after this date, fixed by the detention order of 28 June 1994. This detention, however, was in compliance with the substantive and procedural provisions of the Polish law applicable at the material time. Pursuant to Article 213 of the Code of Criminal Procedure, the lawfulness of the applicant’s continued detention had been subject to a permanent supervision by the Łódź Regional Court. Moreover, the applicant’s request for release of 1 September 1994 had been examined by that court as early as 4 October 1994, i.e. merely four days after the preceding detention order had expired. The subsequent appeals, submitted by the applicant’s father and by his counsel, had been dismissed by the Court of Appeal on 25 October 1994. 46. Finally, the Government stated that they would abstain from making their own assessment of the compatibility of the applicant’s detention during the period under consideration with the requirements of Article 5 § 1 of the Convention. They emphasised that the applicant’s detention had been prescribed by law and effected in accordance with common practice. This practice had developed on the basis of regulations, which had been accessible, sufficiently precise and foreseeable. On the other hand, these provisions were not admittedly specific enough, and this had led to the practice complained of. 47. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. While, in the first place, it is normal for the national authorities, notably the courts, to interpret and apply domestic law, it is otherwise in relation to cases where, as under Article 5 § 1, failure to comply with that law entails a breach of the Convention. In such cases the Court may, and should exercise a certain power to review whether national law has been observed (see, among other authorities, Douiyeb v. the Netherlands [G. C.], no. 31464/96, §§ 44-45). 48. However, the “lawfulness” of detention under domestic law is the primary, but not always a decisive element. The Court must, in addition, be satisfied that detention during the period under consideration, was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner. Moreover, the Court must ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among many other authorities, the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19-20, § 45; and the Erkalo v. the Netherlands judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, § 52). 49. The Court stresses in this connection that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law should be clearly defined, and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law should be sufficiently precise to allow the person – if needed, to obtain the appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, pp. 41–42, §§ 35–36, and, mutatis mutandis, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017, § 49, and the Steel and Others v. the United Kingdom judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54). 50. Turning to the circumstances of the present case, the Court notes that the applicant’s detention was prolonged, by an order of 28 June 1994, until 30 September 1994. On 1 September 1994 the applicant requested to be released. The bill of indictment was lodged with the Łódź Regional Court on 20 September 1994. On 30 September 1994 the detention order expired, but the applicant remained in detention in view of the fact that, following lodging of the bill of indictment with the Regional Court, he had been regarded as having been placed at the disposal of the latter. Subsequently, on 4 October 1994 the Regional Court dismissed the applicant’s request for release of 1 September 1994. It is not in dispute that from 1 to 4 October 1994 the applicant’s detention was maintained solely on the basis of the fact that a bill of indictment had in the meantime been submitted to the court competent to examine the merits of the case. 51. The Court recalls that it found a violation of Article 5 § 1 of the Convention in its recent judgment in the case Baranowski v. Poland (no. 28358/95, § 57), where, considering detention under the same legal framework, the Court stated as follows in §§ 54-57: “The Court observes that the domestic practice of keeping a person in detention under a bill of indictment was not based on any specific legislative provision or case-law but, as the Commission had found and the parties acknowledged before the Court, stemmed from the fact that Polish criminal legislation at the material time lacked clear rules governing the situation of a detainee in court proceedings, after the expiry of the term of his detention fixed in the last detention order made at the investigation stage. Against this background, the Court considers, first, that the relevant Polish criminal legislation, by reason of the absence of any precise provisions laying down whether – and if so, under what conditions – detention ordered for a limited period at the investigation stage could properly be prolonged at the stage of the court proceedings, does not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 of the Convention. Secondly, the Court considers that the practice which developed in response to the statutory lacuna, whereby a person is detained for an unlimited and unpredictable time and without his detention being based on a concrete legal provision or on any judicial decision is in itself contrary to the principle of legal certainty, a principle which is implied in the Convention and which constitutes one of the basic elements of the rule of law. In that context the Court also stresses that, for the purposes of Article 5 § 1 of the Convention, detention which extends over a period of several months and which has not been ordered by a court or by a judge or any other person “authorised … to exercise judicial power” cannot be considered “lawful” in the sense of that provision. While this requirement is not explicitly stipulated in Article 5 § 1, it can be inferred from Article 5 read as a whole, in particular the wording in paragraph 1 (c) (“for the purpose of bringing him before the competent legal authority”) and paragraph 3 (“shall be brought promptly before a judge or other officer authorised by law to exercise judicial power”). In addition, the habeas corpus guarantee contained in Article 5 § 4 further supports the view that detention which is prolonged beyond the initial period foreseen in paragraph 3 necessitates “judicial” intervention as a safeguard against arbitrariness. In the Court’s opinion, the protection afforded by Article 5 § 1 against arbitrary deprivations of liberty would be seriously undermined if a person could be detained by executive order alone following a mere appearance before the judicial authorities referred to in paragraph 3 of Article 5.” 52. The Court observes that the facts, which had given rise to a violation of the Convention in the case quoted above, had occurred within the same legal framework as in the present case. The Court sees no grounds, which would justify a different conclusion in the instant case. The Court accordingly considers that the applicant’s detention was not lawful within the meaning of Article 5 § 1 of the Convention. Consequently, there was a breach of this provision. 53. The applicant also asserted that the respondent State had breached Article 5 § 4 of the Convention which reads: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 54. The applicant submitted that the proceedings concerning review of his detention were in breach of procedural requirements of this provision in that they were not adversarial. 55. The Government first referred to the Court’s case-law, according to which arrested or detained persons were entitled to a judicial review bearing upon the procedural and substantive conditions, essential for the lawfulness, in the Convention sense, of their deprivation of liberty. The competent court had to examine both compliance with the procedural requirements set out in domestic law, and the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention. 56. The Government abstained from making their own assessment of the compliance of the proceedings concerned, with the requirements of the Convention and asked the Court to give its ruling in this respect. However, the Government emphasised that the provisions under which the applicant had been detained in the present case, had been repealed. Pursuant to the new Code of the Criminal Procedure, effective guarantees of equality of parties to the proceedings concerning review of pre-trial detention had been enacted. Therefore the question examined in the present case was only of a historical character. 57. The Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions, which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 154-B, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see the Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30–31, the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, § 51, and the Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47). In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person, must be ensured (Nikolova v. Bulgaria [G.C.], no. 31195/96, 25.03.1999, § 59). 58. The Court notes the information provided by the Government about the extensive legislative amendments which were effected with a view to bringing the Polish Code of Criminal Procedure in line with the Convention. However, the Court’s task is to assess the actual circumstances of the applicant’s case. 59. The Court observes that in the case under consideration, the applicant lodged requests for release, firstly on an unspecified date, and later on 25 May 1994, 11 and 28 August 1994, and on 1 September 1994. The Łódź Regional Court dismissed these requests on 5 April 1994, on later two unspecified dates, and on 4 October 1994. The decision given on 4 October 1994 was, upon the applicant’s appeal, examined by the higher court which gave its ruling on 25 October 1994. 60. The Court notes that it is not in dispute that the law, as it stood at that time, did not entitle either the applicant or his lawyer to attend the court session held in any of these proceedings in which the courts examined whether his detention was lawful and remained justified. Moreover, the applicable provisions of law on criminal procedure did not require that the prosecutor’s submissions in support of the applicant’s detention be communicated, either to the applicant or to his lawyer. Consequently, the applicant did not have any opportunity to comment on those arguments in order to contest the reasons invoked by the prosecuting authorities to justify his detention, either by disputing them directly before the court or by way of written submissions. At the same time the Court notes that under applicable provisions it was open for the prosecutor to be present at any of court sessions, in which the court examined the lawfulness of the applicant’s detention. It is also to be noted that the prosecutor in fact availed himself once of this opportunity by attending the session of the Łódź Regional Court on 4 October 1994, when it was examining the applicant’s request for release of 1 September 1994, whereas neither the applicant nor his counsel was present before the court. 61. In conclusion, in the light of the above considerations, the Court finds that there has been a violation of Article 5 § 4 of the Convention. 62. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 63. The applicant claimed a sum of USD 50,000 (fifty thousand) as compensation for non-pecuniary damage resulting from his detention, in particular such as significant loss of health caused by his detention. 64. The Government considered that the applicant’s claim is exorbitant and asked the Court to rule that a finding a violation constituted sufficient just satisfaction. In the alternative, they asked the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances, such as purchasing power of national currency and to current minimum gross salary in Poland. 65. As regards the claim for the alleged damage suffered as a result of violation of Article 5 § 4 of the Convention, the Court recalls that in certain cases which concerned violations of Article 5 §§ 3 and 4 it has made modest awards in respect of non-pecuniary damage (see the Van Droogenbroeck v. Belgium judgment of 25 April 1983 (Article 50), Series A no. 63, p. 7, § 13, and the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 29, § 65). However, in more recent cases, it has declined to make any such award (see the Pauwels v. Belgium judgment of 26 May 1988, Series A no. 135; p. 20, § 46; the Brogan and Others v. the United Kingdom (Article 50) judgment of 30 May 1989, Series A no. 152-B, pp. 44-45, § 9; the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 19, § 46; the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 24, § 91; the Kampanis v. Greece judgment cited above, p. 49, § 66; Hood v. the United Kingdom [G.C.], no 27267/95, 18.02.1999, §§ 84-87; and Nikolova v. Bulgaria cited above, § 76; Niedbała v. Poland, no. 27915/95, § 89). In certain of these judgments, for instance given in cases of Hood, Huber, Niedbała and Nikolova the Court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of Article 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered. 66. In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage is adequately compensated by the finding of a violation of this provision. 67. The Court further considers that as a result of his detention in breach of the provisions of Article 5 § 1 of the Convention, the applicant suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation (Baranowski v. Poland cited above, § 82). Accordingly, making its assessment on an equitable basis, the Court awards the applicant PLN 4,000. 68. The applicant, who was granted legal aid by the Court, did not seek to be reimbursed for any costs or expenses in connection with the proceedings. 69. The Government requested the Court to decide on award of legal costs and expenses insofar as they had been actually and necessarily incurred and reasonable as to quantum. They relied in this respect on the Musiał v. Poland judgment (Musiał v. Poland [G.C.], no. 24557/94, § 61). 70. The Court, having regard to the fact that the applicant did not seek reimboursement of his legal costs, makes no award under this head. 71. According to the information available to the Court, the statutory rate of interest applicable in Poland at the date of adoption of the present judgment is 30 % per annum.
| 1
|
train
|
001-22658
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,002
|
SPEIL v. AUSTRIA
| 3
|
Inadmissible
|
Georg Ress
|
The applicant, Gertrude Speil, an Austrian national, was born in 1932 and lived in Frauendorf/Schmida. She was represented before the Court by Mr E. Proksch, a lawyer practising in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned a plot of land in Sitzendorf/Schmida, on which a building from the 17th century is situated. The applicant lived in this building and ran a wine production and a distillery there. In 1976 she obtained a permit under the Water Rights Act (Wasserrechtsgesetz) to construct a waste water disposal system on the property and to discharge waste water into a nearby stream. On 29 April 1996 the Sitzendorf Municipality, without holding a hearing, ordered the applicant to connect her property to the newly constructed public sewerage system. It found that the conditions required by section 56 § 2 of the 1976 Lower Austria Building Act (niederösterreichische Bauordnung, “the Building Act”) were met, namely, that the connecting canal between the border of the property and the public canal would be no longer than fifty meters and that no pump appliance was necessary. It further noted that under section 17 of the 1977 Lower Austria Canal Act (niederösterreichisches Kanalgesetz) property owners had the obligation to obtain the necessary building permit for the part of the canal situated on their property which they had to construct at their own cost. They were further obliged to carry out any necessary changes to the sewerage system of any building situated on the property at their own expense. The applicant, represented by counsel, appealed claiming that the municipality should have inspected her property and should have heard an expert on waste disposal. Further, she claimed that the obligation to connect her property to the public canal was at variance with the permit under the Water Rights Act. Finally, she alleged that the Water Rights Act would prohibit the discharge of waste water from her commercial enterprise to the public canal and that the costs of carrying out the necessary construction works, estimated at 1,5 million Austrian schillings, would be excessive. On 27 June 1996 the Sitzendorf Municipal Council (Gemeinderat), sitting in camera, dismissed her appeal. It found that it followed from the existing files and maps that the requirements of section 56 § 2 of the Building Act were met and that the permit under the Water Rights Act was not relevant for establishing the obligation to connect a property to the public sewerage system. As to the applicant’s argument that she would have to bear excessive costs, it found that the above provision did not contain any general principle of proportionality. On 22 November 1996 the Lower Austria Regional Government (niederösterreichische Landesregierung), sitting in camera, dismissed the applicant’s further appeal in which she had repeated her arguments. In particular, the Regional Government found that the permit under the Water Rights Act only gave the applicant a right to discharge waste water as long as this was not contrary to other legal obligations, such as the obligation to connect her property to the public canal. It further noted that the fulfilment of the legal requirements laid down in section 56 § 2 of the Building Act clearly followed from the existing files and maps, and found that the applicant had failed to show any need for the taking of further evidence. In her complaint to the Constitutional Court (Verfassungsgerichtshof) the applicant again repeated her arguments and alleged in particular that the obligation to connect her property to the public canal violated her right to property. She maintained that the Water Rights Act would prohibit the discharge of waste waters from her wine production and distillery to the public canal. She would therefore have to separate these waste waters which would entail excessive costs. The necessary changes would endanger the 17th century building. On 24 February 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof). On 30 September 1997 the Administrative Court dismissed the applicant’s complaint, rejecting at the same time her request for a hearing. As to the applicant’s argument that the obligation to connect her property to the public canal was at variance with the permit under the Water Rights Act, the Administrative Court, referring to the Constitutional Court’s case-law, found that the discharge of waste water could be regulated under different aspects and that it was for the legislator to determine the cases in which a property owner was obliged to connect his property to the public canal. As to the applicant’s argument that the authorities failed to inspect her property and to hear an expert on waste disposal, the applicant had, in her appeal, failed to challenge the first instance authority’s finding of the facts according to which the conditions laid down in section 56 § 2 of the Building Act were met. Thus, the appellate authorities were not required to take further evidence. The Administrative Court held that it could abstain from an oral hearing pursuant to section 39 § 2 (6) of the Administrative Court Act since the proceedings have been carried out accurately and the facts were undisputed. On 5 January 2001 the applicant died. On 30 November 2001 the applicant’s husband, who inherited the estate, informed the Court that he wished to pursue the application.
| 0
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train
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001-72371
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,006
|
COKARIC AND OTHERS v. CROATIA
| 4
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Inadmissible
|
Christos Rozakis
|
The applicants are 72 inhabitants of the coastal town of Stobreč (see Appendix I), of whom 35 claim to be the owners of real property in the area (see Appendix II). They are represented before the Court by an environmental association named Association for Preserving the Cultural and Natural Heritage Stobreč Epetium (Udruga za očuvanje kulturne i prirodne baštine Stobreč “Epetium”), with its seat in Stobreč and the aim to promote preservation of the environment and of cultural and historical monuments. The respondent Government are represented by their Agent, Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. Within the framework of a project to protect the Kaštel Bay of the Adriatic Sea, the State is constructing a sewer network, with an outlet near the coastal town of Stobreč. On 12 November 2001 the Ministry of Environment and Zoning (Ministarstvo zaštite okoliša i prostornog uređenja; “the Ministry”) granted the company V.K. a building permit for constructing the sewer outlet in Stobreč. On 29 April 2002 the applicants filed a motion for re-opening of the above administrative proceedings (prijedlog za obnovu postupka) with the Ministry. They claimed not to have been afforded the opportunity to participate in those proceedings, which had violated their constitutional rights and international environmental treaties as the sewer would not be equipped with a proper biological purification system. On 2 August 2002 the Ministry requested the applicants to substantiate their complaints and submit additional documents. The applicants replied on 27 August 2002. On 30 April 2003 the Ministry dismissed the applicants’ motion, finding that they had failed to prove their locus standi or to substantiate their allegations as required by the relevant legislation. On 27 June 2003 the applicants brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against the Ministry’s decision. On 13 January 2005 the Administrative Court quashed the Ministry’s decision. In its judgment, the Administrative Court stated that, due to the fact that they lived in the area of possible negative impact of the building works, the applicants could not have been denied locus standi in the case. Currently, the proceedings concerning the applicants’ request to reopen the administrative proceedings are again pending before the Ministry. On 29 April 2002 the applicants lodged a constitutional complaint, seeking to have the building permit quashed. They submitted that the permit violated some of their constitutional rights, including freedom of movement, as well as the right to work and to protection of health. Moreover, in their constitutional complaint the applicants requested an interim measure in order to stop the ongoing building works. On 30 January 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicants’ constitutional complaint inadmissible for non-exhaustion of legal remedies. On 13 March 2003 the applicants requested the Split Municipal Court (Općinski sud u Splitu) to issue an interim measure in order to stop the building works. On 22 May 2003 the court scheduled an on-site inspection for 29 May 2003. Following the inspection, on 31 July 2003 the court experts submitted an offer, charging 42,000 Croatian kunas (HRK) for their opinion. The applicants never advanced the amount sought; the proceedings are still pending. Sometime in 2003, three of the 72 applicants lodged a civil action with the Split Municipal Court seeking compensation for damage resulting from the construction of the sewer outlet. The proceedings are still pending before the first-instance court. With a view to securing the building site, the police cordoned off the area. On 23 July 2002 several applicants, while swimming, approached the visibly marked area. The police intervened, preventing the applicants from approaching the site. Section 156 of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/91, 73/91, 3/94, 7/96 and 112/99), provides for a so-called ecological action and, insofar as relevant, reads as follows: 1. Everyone may request another person to remove a source of danger, which might cause substantial damage to him or to other persons or to sustain from an activity which causes disturbance or might cause damage... 2. The court shall, at the request of an interested person, order appropriate measures to be undertaken, for prevention of damage or disturbance or removal of the source of danger, at the expense of the possessor of the source of such danger... 3. If damage occurs while performing an activity in the general interest, for which a permit of the competent authority has been obtained, one may seek compensation for such damage as exceeds only the usual limits...” In its decisions Rev 1681/1998-2 of 11 July 2001, the Supreme Court found that the owner of agricultural land near a factory chimney had the right to compensation for damage to his products ruined due to chimney emissions. In its decision Rev 1711/1996-2 of 16 December 1999, the Supreme Court ruled that the owners of a house had the right to compensation for damage suffered due to the construction of a nearby road. The damage they sustained included the drop of the value of their property. Section 49 of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette nos. 53/1991 and 103/1996) provides that a party to the administrative proceedings is a person, at whose request the proceedings have been instituted, or a person against whom the proceedings have been instituted, or any other person who can participate in the proceedings with a view to protecting his or her rights or interests. Section 218 § 1 of the Administrative Procedure Act provides that in simple matters an administrative body is obliged to issue a decision within a period of one month following the lodging of the party’s request. In more complex cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged. Section 218 § 2 of the same Act enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his or her request had been denied. Section 26 § 1 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides that, if a second-instance authority fails to issue a decision on an appeal by the party within 60 days, and within an additional period of seven days following the repeated request, the party may lodge an action with the Administrative Court as if his or her request had been dismissed. The same applies to the failure of a first-instance authority to issue a decision, if no appeal against that decision is allowed. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
| 0
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train
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001-100666
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,010
|
NAGOVITSYN AND NALGIYEV v. RUSSIA
| 3
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
1. The applicants are Russian nationals. The first applicant, Mr Yuriy Aleksandrovich Nagovitsyn (application no. 27451/09, lodged on 7 May 2009), was born in 1950 and lives in Kirov. The second applicant, Mr Magometgiri Khakyashevich Nalgiyev (application no. 60650/09 lodged on 20 October 2009), was born in 1949 and lives in Mayskoye, the Republic of Northern Osetiya-Alaniya. 2. The facts of the cases, as submitted by the applicants, may be summarised as follows. 3. The applicants sued the State authorities in domestic courts and obtained judgments in their favour. 4. In the case of Nagovitsyn, the Leninskiy District Court of Kirov on 31 May 2007 awarded the applicant two lump sums, of 42,773.06 and 4,452.37 Russian roubles (RUB), plus the sums of RUB 1,288.41 and 1,717.91, to be paid on a monthly basis on account of the applicant's participation in the cleaning-up operations following the Chernobyl disaster. The court ordered that the monthly payments be subsequently adjusted (index-linked) in accordance with the law. 5. In the case of Nalgiyev, the Nazranovskiy District Court of the Republic of Ingushetiya on 7 March 2007 awarded the applicant a lump sum of RUB 1,146,356 in salary arrears on account of his service on a territory subject to emergency rule. 6. The judgments in the applicants' favour became binding and enforceable on 10 July and 3 May 2007 respectively but remain unexecuted, either fully or in part. According to Mr Nagovitsyn, the monthly payments have not been index-linked by the debtor authority (the Kirov Federal Treasury Department), contrary to the court order. In the case of Nalgiyev, the defendant authority (the Prosecutor's Office of the Republic of Ingushetiya) failed to pay any of the judgment debt. 7. On 15 January 2009 the Court delivered the Burdov pilot judgment (see Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009...). The pilot judgment ordered the respondent State, inter alia, to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. The Court also decided to adjourn, for one year from the date on which the judgment became final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities (see Burdov (no. 2), cited above, § 143, and point 8 of the operative part). 8. Consequently, like numerous other persons in the same position, Mr Nagovitsyn and Mr Nalgiyev were informed by letters of 21 October 2009 and 29 January 2010 respectively that their cases would remain adjourned until 4 May 2010 and that the subsequent procedure would be determined in the light of the implementation of the pilot judgment by the Russian authorities. 9. On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below). 10. In May 2010 the Registry of the Court informed the applicants in the present cases and all other applicants in the same position of the new remedy, advising them to make use of it within the six-month time-limit set by the Compensation Act (see paragraph 20 below). 11. By a letter of 21 June 2010 Mr Nagovitsyn informed the Court in response that he had brought proceedings under the Compensation Act and obtained a judgment in his favour. On 21 June 2010 the Kirov Regional Court granted the applicant's claim in part. It found that the Russian authorities had violated his right by delaying the enforcement of the judgment of 31 May 2007 and awarded him RUB 40,000 in compensation. The court took account of the amount of outstanding arrears due (RUB 3,900), the applicant's claims (RUB 140,000), the ambiguity of the domestic case-law concerning the index for adjustment of court awards, considerations of reasonableness and equity and judgments of the European Court of Human Rights in similar cases. 12. On 28 June 2010 the applicant appealed to the Supreme Court against that decision, considering, inter alia, that the compensation award was insufficient and that the regional court had failed explicitly to acknowledge a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. 13. By letter of 22 June 2010, Mr Nalgiyev indicated that he would lodge a claim with the domestic court under the Compensation Act and keep the Court informed of any new fact. 14. Notwithstanding these developments, the applicants explicitly maintained their applications before the Court. They challenged the capacity of the new remedy to provide adequate redress. The new domestic remedy at best allows, in their view, some inadequate compensation for delays but does not ensure the State's ultimate compliance with the judgment. Mr Nagovitsin argued, in addition, that the compensation award made on 21 June 2010 by the domestic court was substantially lower than the amounts awarded by the Court in similar circumstances. More generally, he submitted that the consideration of his case by the Court would remedy the uncertainty of the indexation requirements stemming from the ambiguous domestic case-law in this area. 15. On 30 April 2010 Russian Parliament adopted a Federal Law, no. 68-ФЗ, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010. 16. The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant's own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities' fault (Section 1, § 3). 17. The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant' 18. Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement. 19. A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3). 20. All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the Compensation Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).
| 0
|
train
|
001-98331
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF SLYUSAREV v. RUSSIA
| 2
|
Violation of Art. 3 (substantive aspect)
|
Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall
|
6. The applicant was born in 1970 and lives in Moscow. 7. Late in the night of 2 July 1998, a Ms P. was assaulted at the entrance of her house. Two of her neighbours apprehended the applicant on suspicion that he had committed the crime and handed him over to the police. The applicant was taken to the Moscow Pechatniki District Police Department (ОВД «Печатники») for questioning. It appears that at a certain point the applicant's glasses were partially broken and the police took them away from the applicant, who was short-sighted (according to the applicant, he needed glasses of 3.5 dioptres). 8. At the police station the applicant signed a written statement in which he confessed that he had tried to rob Ms P. using a gas handgun, and that there had been a short fight between him and one of her neighbours. The neighbours confirmed that testimony in written statements taken by the police officers. 9. On 3 July 1998 the police instituted criminal proceedings against the applicant on suspicion of armed robbery of Ms P. and illegal possession of firearms. On an unspecified date the applicant was also charged with three counts of fraud, which were not related to the episode with Ms P. 10. On 4 July 1998 the applicant was taken by the policemen to see a doctor. It appears that the applicant did not complain to the doctor about any injury. 11. On 6 July 1998 the applicant was questioned again in connection with the robbery, now in the presence of his lawyer. This time the applicant retracted his initial statement of confession. 12. On an unspecified date the applicant was transferred from the police department to a pre-trial detention centre (isolation unit IZ-48/1) in Moscow. The applicant alleged that he had asked the administration of the unit to provide him with new glasses, but his request had been refused. According to the applicant, he also asked the investigator in charge of his case to arrange for him to have his eyesight examined by an oculist. 13. On 14 July 1998 the applicant filed an application for release with the Preobrazhenskiy District Court, in which he gave his version of the events of 2 July 1998. He contended that Ms P. had stolen money from him, and that he had tried to retrieve his money or have her arrested. He claimed that he was not guilty of robbery and that his arrest had been unlawful. Among many other arguments, he indicated that he was short-sighted, that his glasses had been taken from him by the police, and that his eyesight was deteriorating. 14. According to the applicant, on 1 September 1998 he had complained to the investigator about the deterioration of his eyesight. On 9 September 1998 the investigator ordered the applicant's examination at the Moscow Helmholtz Eye Disease Institute. 15. On 14 September 1998 the applicant's wife filed a complaint with the district prosecutor, claiming that the applicant had been beaten up by the police shortly after his arrest. She also requested the prosecution to return the glasses to her husband. 16. The prosecutor opened a preliminary inquiry (прокурорская проверка) into those allegations. On 16 October 1998 the prosecutor informed the applicant's wife that he had decided not to pursue the case. 17. On an unspecified date the applicant complained about the deterioration of his eyesight to the investigator, who ordered the applicant's examination by an oculist. 18. On 25 November 1998 the applicant underwent a medical examination at an eye hospital. The doctors detected a reduction of his left eye's mobility as a result of a “contusion”. Further, the doctors found that the applicant's eyesight had dropped to 0.07-0.04 and that he needed glasses of 5 dioptres. However, the doctors concluded that the applicant was able to attend to himself, orient himself and move around indoors. 19. On 1 December 1998 the applicant's lawyer lodged a formal request with the investigator in charge of the applicant's case seeking to have the glasses returned to the applicant. 20. On 2 December 1998 the investigator returned the glasses to the applicant. According to him, the glasses were found in the safe box of one of the policemen of the Pechatniki District Police Department who had dealt with the applicant's case. 21. On 3 December 1998 the pre-trial investigation was completed and the case file and the bill of indictment were filed with the Moscow Lyublinskiy District Court for examination on the merits. 22. On 25 December 1998 the District Court remitted the case file to the prosecutor, stating that the applicant had not had enough time to read the case file because his glasses had been taken away and returned only on 2 December 1998. The prosecution authorities were ordered to put the case file at the applicant's disposal anew in order to enable him to prepare his defence properly. 23. In December 1998 the prosecutor re-opened the inquiry into the applicant's allegations of ill-treatment. She questioned witnesses to the applicant's apprehension. Further, she requested the State bureau of forensic expertise to establish whether the impairment of the applicant's health could have been provoked by the alleged beatings. 24. On an unspecified date in January 1999 the investigator in charge of the case provided the applicant with new glasses instead of his old ones. Some time afterwards the case file with the bill of indictment was re-submitted to the court by the prosecution. 25. On 5 April 1999 the forensic expert drew up a report, stating that no evidence of beatings was established, that the applicant had suffered from myopia since 1989 and that the impairment of the applicant's eyesight could have been explained by his chronic myopia. 26. On 15 April 1999 the prosecutor closed the inquiry for lack of evidence of a crime. The investigator concluded that the bruises had been received by the applicant in the fight with the neighbours of Ms P., and that his eye problems were not related to the events of 3 July 1998. The applicant's wife challenged that decision. On 31 July 2000 she was informed that following an additional inquiry the prosecutor had decided not to pursue the investigation. 27. The applicant raised the issue of ill-treatment during the court proceedings against him. He challenged the admissibility of his initial confessions, claiming that they had been extracted by force. The applicant's defence counsel requested a new medical expert report in order to determine whether the injuries sustained by the applicant could have been caused by beatings. The District Court dismissed that motion on the ground that such an examination had already been carried out. 28. On 15 June 1999 the District Court found the applicant guilty of one count of armed robbery, one count of illegal possession of firearms and several counts of fraud and sentenced him to nine years' imprisonment. On 3 November 1999 the Moscow City Court dismissed an appeal by the applicant and upheld the lower court decision of 15 June 1999. The City Court confirmed the conclusions of the first-instance court and held that no evidence of ill-treatment had been discovered.
| 1
|
train
|
001-95506
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,009
|
ŠUBRT v. THE CZECH REPUBLIC
| 4
|
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
The applicant, Mr Pavel Šubrt, is a Czech national who was born in 1956 and lives in Prostějov. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns an apartment house in Prostějov. On 20 July 1994 the Prostějov District Court (okresní soud) granted the applicant’s action of 13 April 1994 by which he had requested that the tenancy of Mr and Ms K., who occupied one of the flats in the house subject to the rent-control scheme, be terminated. The court held that the tenancy would terminate within three months of the coming into force of the judgment. It ordered the defendants to vacate the flat within fifteen days of being provided with an alternative flat. In a judgment of 6 December 1995 the Brno Regional Court (krajský soud) modified the judgment specifying that the alternative flat had to be equivalent to the apartment which they were occupying. The judgment became final on 5 March 1996. On 9 June 1997 Mr K. died. On 14 April 1998 the District Court, upon the applicant’s request for enforcement of 2 March 1998, ordered execution of the judgment of 20 July 1994 but held at the same time that the alternative flat which the applicant offered was not equivalent since even if it was of a higher category its total surface was 41% smaller than Ms K.’s existing flat having one room less, was situated on a higher floor and the rent was by CZK 710 (EUR 27.56) higher. On 13 April 1999 the District Court rejected the applicant’s fresh request for enforcement of 3 December 1998, finding that the alternative flat offered by him could not be considered as an equivalent apartment because the rent was by CZK 2,896 (EUR 112) higher than that which Ms K. was currently paying for the apartment which was subject to the rent-control scheme. Her financial situation would drastically worsen given that her monthly pension amounted to CZK 6,842 (EUR 266). On 24 October 2000 the Regional Court rejected the applicant’s appeal as being introduced outside the statutory time-limit and upheld the District Court’s decision. On 20 December 2000 the applicant filed a constitutional appeal (ústavní stížnost) and an appeal on points of law (dovolání). On 26 September 2002 the Supreme Court (Nejvyšší soud) quashed the decision of the Regional Court and remitted the case to it. On 8 January 2003 the Constitutional Court (Ústavní soud) dismissed the applicant’s appeal given that the case was pending before the Regional Court. On 12 February 2003 the applicant presented to the District Court his complementary submissions and arguments requesting the court to alter the original condition and to declare that the eviction of Ms K. should be conditional only on the provision of a shelter (přístřeší). On 30 May 2003 the Regional Court dismissed the applicant’s appeal against the decision of the District Court of 13 April 1999. On 25 March 2004 the Supreme Court rejected the applicant’s appeal on points of law. In a ruling (nález) of 23 September 2004 the Constitutional Court, following the applicant’s new constitutional appeal, quashed the Regional Court’s decision of 30 May 2003 and found a violation of the applicant’s right to judicial protection under Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). It held that the situation on the flats market at the relevant time made it impossible for the applicant to find an equivalent flat subject to the rent-control scheme. Referring to its ruling no. III. ÚS 114/94 of 16 February 1995, the court held that the only duty incumbent on the applicant had been to deploy all his efforts, within the reasonable limits, in order to provide an alternative flat, which, under local conditions and all terms stated in the law, would meet as much as possible the standards of the vacated flat. Otherwise the right of the landlord to terminate the tenancy would become impossible. The State could not transfer its duty of social care onto landlords; owners of flats subject to the rent-control scheme were entitled to obtain the enforcement of an order to vacate under the same conditions as those owning uncontrolled flats. The court also held that a rent only had to be usual for the given place and time. On 28 December 2004 the Regional Court scheduled a hearing for 9 February 2005, inviting the applicant to submit, not later than at the hearing, documentary evidence that an alternative housing was assured to Ms K. It also requested the Prostějov Housing Association (domovní správa) and a number of estate agents in that particular area to provide their opinions on the precognitions for the allocation of flats and on the then current housing situation on the market. On 31 January 2005 the applicant filed a claim for damages, under the State Liability Act then in force (Act no. 82/1998), to compensate material damage caused by illegal decisions of lower courts and lengthy execution proceedings. On 8 September 2005 the Ministry of Justice rejected the applicant’s claim for damages. In a letter of 23 September 2005, the applicant informed the Ministry of his intention to initiate proceedings before domestic courts. However, there is nothing to show that he did actually turn to a court. In the mean-time, on 9 February 2005, the Regional Court had upheld the District Court’s decision of 13 April 1999 on the grounds that the applicant’s request for assignment of a municipal flat had been withdrawn from the register. It appears that the dismissal of the request resulted from Ms K’s refusal to accept the flat offered by the applicant. On 26 January 2006 the Supreme Court rejected the applicant’s appeal on points of law against the Regional Court’s decision of 9 February 2005 as having been filed outside the statutory time-limit. On 4 May 2006 the applicant filed a constitutional appeal alleging a violation of his right to judicial protection guaranteed by Article 36 § 1 of the Charter, but the Constitutional Court rejected his appeal as manifestly ill-founded on 23 May 2006. On 22 August 2006 the constitutional jurisdiction rejected the applicant’s appeal against the Supreme Court’s decision of 26 January 2006 and the decision of the Regional Court of 9 February 2005. On 18 July 2007 the District Court terminated the enforcement proceedings, Ms K. having died on 9 June 2007. On 21 January 2008 the court evaluated her property to CZK 665,819 (EUR 25,841) and decided that the inheritance of CZK 643,289 (EUR 24,967) would pass on the State. The applicant was paid CZK 4,745 (EUR 184) to compensate Ms K.’s outstanding rent from 1 May to 9 June 2007. On 8 February 2002 the applicant brought an action for unjustified enrichment with the District Court against Ms K. seeking payment of CZK 46,586 (EUR 1,808) which, according to him, corresponded to compensation for the use of the flat from February 2000 to January 2002. In a judgment of 2 October 2003 the District Court dismissed his action, but the Regional Court quashed this judgment on 27 May 2005 and sent the case back to the District Court. On 21 February 2006 the latter ordered Ms K. to pay CZK 46,586 plus 6,5% interest to the applicant while rejecting his claim to order Ms K. to vacate the flat under the provision by the applicant of a shelter. It admitted that Ms K. had failed to meet some of her duties as a tenant, but it held that the alteration suggested by the applicant would be immoral with respect to her age and health. Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings. Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages. On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time. Section 32 provides, inter alia, that a claim for damages is subject to the three-year statutory bar after the date on which the victim got knowledge of the damage and the authority liable for it.
| 0
|
train
|
001-60793
|
ENG
|
POL
|
CHAMBER
| 2,002
|
CASE OF RADAJ v. POLAND
| 3
|
Violation of Art. 8;Non-pecuniary damage - financial award
|
Christos Rozakis
|
8. The applicant is a Polish national, who was born in 1953 and lives in Warsaw. 9. Two letters from the Secretariat of the European Commission of Human Rights, posted on 20 March 1996 and on 14 May 1996, were intercepted, opened and read by the administration of the Warszawa-Służewiec prison, where the applicant was detained on remand. They were subsequently forwarded to the Warsaw District Court, before which criminal proceedings against the applicant were pending at that time, and were read by the court. 10. On 29 April 1996 the applicant requested the President of the Warsaw District Court to explain what was the legal basis on which his correspondence with the European Commission of Human Rights had been opened and read. 11. He reiterated his complaint on 31 July 1996 in a letter to the President of the Regional Court. In reply, on 15 October 1996 the President of the Regional Court informed him that Article 8 of the Convention did not prohibit censorship of correspondence of persons detained on remand. It was also permitted under Section 33 § 2 of the Rules of Detention on Remand. The correspondence sent to the European Commission of Human Rights fell within the scope of this provision. It was further stated that the text of the Convention did not contain provisions relating to the inviolability of the correspondence to and from the European Commission of Human Rights. 12. The situation of persons detained on remand was at the relevant time governed by the Code of Execution of Criminal Sentences of 1969. Under Article 89, all correspondence of a detainee was to be opened, read and, if need be, subject to censorship, unless a prosecutor and a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence. 13. The rights of persons detained on remand as regards their correspondence were further set out in Section 33 of the Rules on Detention on Remand. They provided that the correspondence of persons detained on remand was subject to screening by prison authorities and by authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings. 14. On 6 July 1997 a new Code of Enforcement of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that the convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners’ correspondence in such cases shall be dispatched with no delay and is not subject to censorship. 15. Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be the same as those of persons convicted by a final judgment.
| 1
|
train
|
001-93690
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF RACHWALSKI AND FERENC v. POLAND
| 3
|
Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
|
6. The applicants were born in born in 1973 and 1976 respectively and live in Wągrowiec. 7. The parties do not fully agree about the facts of the case, which may be summarised as follows. 8. The second applicant lived with a group of friends, including the first applicant, mostly students, in an old and decrepit house they had rented in Wrocław. They occasionally invited their friends to spend a night or a couple of days in their house. 9. On the night of 14 June 1997 there was a group of students sleeping in the house. At 3 a.m. they were awakened by two police officers patrolling the area. The police enquired whether the inhabitants knew the owner of an unlocked car parked in front of the house. 10. The applicants and one of their friends, D. S., started a polite discussion with the police officers about the car. It was confirmed that one of the residents of their apartment was the owner of the car. However, the police announced their intention of towing the car away to the police car park. The applicants argued that it was not forbidden or illegal to keep the car unlocked. At the police’s request, they produced their identity cards and the registration card of the car, whose owner was asleep in the house. 11. The police were not satisfied with their explanation and the dispute became more intense. In reaction to the opinions expressed about the intervention, in particular by D. S., the policemen used truncheons. They hit D. S. several times and handcuffed him. The applicants tried to argue with the policemen, to no avail. The police called other police officers and shortly afterwards approximately ten other policemen arrived. They hit the first applicant with their truncheons several times and the second applicant once. Thereupon D. S. was taken to the police car where he was beaten. The applicants were ordered to stand against a fence. They were pushed and jostled and the policemen insulted them referring to them as “scum”, “slobs”, “queers” (hołota, brudasy, pedały). 12. Subsequently, a group of policemen, armed with truncheons and guarded by police dogs, entered the house, woke up the other occupants and ordered them to stand against the wall. Then the police searched the house. No information was provided about the grounds, purpose or legal basis for the search. During this time the police showered abuse on the students. They pushed and shoved them. This lasted for about half an hour. Afterwards, the police left the house and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house, and threatened that they would be in trouble if they submitted a complaint about the events. 13. The police left, taking D. S. with them. 14. On 16 June 1997 the applicants requested to be examined by a forensic medicine specialist. It was established that the first applicant had two long bruises on his left arm, and other bruises on the palm of his hand. The second applicant had a blue mark on her bottom (13 by 9 cm). It was stated that these bruises could have been caused by the use of police truncheons. 15. The second applicant and her friend D. S. lived in the house with the owner’s permission. They often received young visitors from all over the country. On the night in question the unlocked car parked in front of the house had seemed very suspicious to the policemen A. C. and R. S., who thought it was stolen and considered that it should be towed away. They had knocked at the window and the second applicant informed them that the owner was in the house. She first objected to the police action at night, and then went to look for the owner of the car among the fourteen young people who were sleeping in the house. The applicants behaved aggressively, loudly expressing opinions about the purpose and nature of the intervention. D. S. raised his voice to the police and pushed A. C. 16. The police action was a result of the fact that the applicants did not comply with the police requests to provide necessary information. The applicants talked to the police with raised voices and took a very active part in the struggle with the policemen. 17. The police officer had misinterpreted the first applicant’s intentions when he handed him his documents and had hit him to prevent his being attacked. The applicant was most probably hit once. 18. The atmosphere was tense. The owner of the car gave the police the keys and documents to the car. As D. S. was unruly and continued to express objections, the policemen decided to arrest him. While he was being taken into custody by the police, he hit one of them in the face. Thereupon truncheons were used against him. Given the attitude of D. S. and of other persons present, the police called for assistance. Two other police patrols and an emergency team arrived. As the applicants were interfering with the arrest of D. S., they were hit with truncheons. 19. Police officers D. R. and J. G. then entered the house to check the identity of the persons present. After that, the intervention was terminated. 20. On 16 June 1997 the applicants requested the Wrocław District Prosecutor to institute criminal proceedings against the police for abuse of authority. On 23 December 1997 the prosecutor refused to do so. He found that no criminal offence had been committed. 21. The prosecutor considered that the police action had been justified. The police could have reasonably suspected that the unlocked car had been stolen, even though it had not been reported as such. The further developments had certainly come as a surprise to both the police and other persons involved in the incident. The second applicant had objected in a pretentious tone (“pretensjonalny ton głosu”) to having been woken up and to the check on the car taking place at night. She had been informed that the car would be towed away if the owner was not found. She could not locate the owner of the car, as there were many people in the house who did not know each other. The second applicant had woken all of them up in an attempt to find the owner. 22. D. S. had objected in a loud voice to the police intervention. He had insisted that the intention of the police was to harass the persons in the house. As he had not obeyed the police requests to calm down and the verbal exchange between him and the police officer A. C. had become increasingly heated, it had been decided that he should be taken to the police car. The prosecutor considered that this had been justified in the light of D. S.’s aggressive behaviour. Given that D. S. had been behaving aggressively, direct force had been used against him, including the use of truncheons and handcuffs. It was true that the applicants’ versions of the facts diverged, and these divergences could not be clarified on the basis of evidence from other witnesses, but it was clear that, in the face of his resistance, it had been necessary to use such force in order to take D. S. to the car. 23. Given the applicants’ behaviour, the police had had to call assistance. They had also felt threatened by the presence of other persons at the scene of the incident. The applicants had been hit as they had ignored the order to let D. S. go so that he could be taken to the car. In the darkness, the police had not noticed that the first applicant had in fact had his documents in his hand in order to show them to the police, and they had thought that he intended to hit them. 24. It was finally noted that the accounts of the facts given by the persons present at the scene, other than the police, were highly divergent, making it impossible to establish the facts of the case. However, the testimony given by the policemen was coherent. Therefore, the submissions of the other persons could not be considered credible and had to be assessed critically. 25. The prosecutor concluded that the measures taken by the police had been proportionate to the situation. 26. The first applicant appealed. He argued that the police brutality and aggression had been totally unjustified. Nothing in the behaviour of the persons present had justified the use of force. The police had entered private property and effected a search of the house without any sound reasons, hitting and insulting the persons sleeping in the house. He argued that he was a law-abiding citizen, a student of two university faculties and a member of the Municipal Council of his town. He had not given any reason to be beaten, verbally insulted and humiliated just at the whim of the police. The police should not intervene in private property at night and hit, insult and humiliate people just because they looked, or lived, differently. The facts as established by the prosecutor did not correspond to what had happened. All the facts had been established on the basis of the arguments of the police, who had apparently been instructed by police lawyers as to what they should say. During the questioning the prosecutor had made unpleasant remarks about the hairstyles, clothes and views of the young inhabitants of the house, which had influenced her decision to discontinue the proceedings. He submitted that the police had humiliated both himself and the others. 27. The second applicant submitted that the assessment of the evidence had been biased and that the police had clearly abused their authority, insulting and humiliating her and other participants in the incident. 28. On 20 May 1998 the Wrocław Regional Prosecutor upheld the contested decision. He considered that the intervention of the police had been justified in so far as they wanted to verify the identity of the owner of the car. D. S. had behaved aggressively, both verbally and physically. Regardless of whether he had intended to hit A. C. in the face or not, his behaviour could have been perceived as an intentional assault. It was for that reason that a decision to arrest him had been taken. The identity check of the persons present in the house had been necessary as they had insulted the policemen. 29. The social status of the young people, namely the fact that they were students, imposed certain obligations on them, in particular an obligation to cooperate with the police in the interest of law and order. 30. The findings of the inquiry had not established that the students had been insulted verbally by the police, as the policemen consistently denied this. Nothing had been found to support the first applicant’s submission that the testimony of the policemen had been suggested to them by the police lawyers. 31. The prosecutor concluded that the contested decision had to be upheld. 32. The Code of Criminal Procedure contains the following provisions on the search of premises by the police: 33. The police’s powers regarding the use of coercive measures is regulated by the Police Act of 6 April 1990 and by the Ordinance of the Council of Ministers of 17 September 1990 setting out the conditions and method of application of coercive measures. 34. Pursuant to section 14 of the Police Corps Act, within the limits of their competence, the police are required – in order to examine, prevent and detect offences and petty offences – to carry out operational and reconnaissance activity, take part in an investigation or inquiry, or carry out administrative activity and safeguard public order. In the exercise of their powers the police must respect human dignity and human rights (section 3). 35. Section 16 of the Police Corps Act provides that if a person does not comply with the lawful request of police officers they may apply such coercive measures as, for instance, using truncheons. 36. The police are bound by the principle of minimal use of coercive measures. In accordance with this principle the police must only use such measures when they are absolutely necessary in the given circumstances in order to enforce execution of orders issued by the police (section 16 § 2). 37. The ordinance setting out the conditions, circumstances and method of application of coercive measures by the police, issued on the basis of section 16 § 4 of the Police Corps Act (Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police), indicates – among other coercive measures – the use of truncheons. Section 5 of the (“the 1990 Ordinance”) provides: “1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order. 2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others. ” Section 13 of the Ordinance, in so far as relevant, provided at the material time: “2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective. 3 (1) It is forbidden to hit or push with a truncheon against a [person’s] head, neck, stomach and non-muscled and particularly delicate parts of the body...” 38. Pursuant to section 142 § 1 of the Police Corps Act a police officer who in the performance of official duties oversteps his powers and violates the personal interests and dignity of a citizen, is liable to imprisonment for up to five years.
| 1
|
train
|
001-83247
|
ENG
|
MDA
|
CHAMBER
| 2,007
|
CASE OF CEBOTARI v. MOLDOVA
| 3
|
Violation of Art. 5-1;Violation of Art. 18+5-1;Violation of Art. 34;Not necessary to examine Art. 5-3 and 5-4;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - partial award
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Josep Casadevall
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5. The applicant was born in 1947 and lives in Chişinău. He is an engineer. In 1997 he was the head of a Moldovan State-owned power distribution company called Moldtranselectro. 6. The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to Moldtranselectro, a Ukrainian State-owned power distribution company, a Ukrainian private company and a Moldovan private company called Oferta Plus (see Oferta Plus SRL v. Moldova, no. 14385/04, § 7, 19 December 2006). The agreement to which Moldtranselectro was a party provided, inter alia, that Oferta Plus would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment. 7. On unspecified dates between 1997 and 1998 Oferta Plus paid more than USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine. 8. On an unspecified date Moldtranselectro paid Oferta Plus MDL 189,869,277. 9. On 3 March 1998 the Government of Moldova adopted Decision no. 243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds (“Treasury bonds”) in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions. 10. On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a Treasury bond with a value of MDL 20,000,000 in favour of Oferta Plus. The letter was signed by the applicant in his capacity as head of Moldtranselectro. 11. On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000 (USD 4,240,702 as of 27 March 1998) in favour of Oferta Plus, payable by 10 July 1998. The Treasury bond provided that Oferta Plus had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions. 12. Oferta Plus presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity. 13. In October 1998 Oferta Plus initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 12 above while Moldtranselectro declined all responsibility. 14. On 27 October 1999 the Chisinau Economic Court found in favour of Oferta Plus and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court also decided to absolve Moldtranselectro of any responsibility. 15. Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to Oferta Plus in November 1999. 16. On 14 February 2000 Oferta Plus officially requested a bailiff to start the enforcement procedure under the warrant. 17. On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted. The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond. 18. On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions. 19. In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to Oferta Plus. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. 20. On 26 April 2004 the Government Agent informed the Ministry of Finance about Oferta Plus's application to the Court concerning the non-enforcement of the final judgments in its favour and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”. 21. On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of Oferta Plus to be unlawful, but that it had complied with it partially so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice. 22. On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows: “...during the proceedings [between Oferta Plus, Moldtranselectro and the Ministry of Finance] Oferta Plus and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid. No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour. In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.” An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, Oferta Plus had destroyed the accounting documents after three years. 23. The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of Oferta Plus. The request did not specify any reasons for revision. 24. On 12 July 2004 the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of Oferta Plus and ordered the reopening of the proceedings. The re-opened proceedings ended with a judgment of the Supreme Court of Justice of 10 February 2005 in favour of the Ministry of Finance. 25. In the meantime, on 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 21 above), initiated criminal proceedings against Oferta Plus and against the applicant on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 22 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions. 26. On 15 April 2005 the Chief Executive Officer of Oferta Plus (“C.T.”) was questioned by the Prosecutor General's Office. 27. On 20 April 2005 the offices of Oferta Plus were searched and some documents seized. 28. On 25 October 2005 the criminal proceedings were discontinued. The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following: “According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866... The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. ... Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.” 29. On 15 February 2006 the Court communicated the case of Oferta Plus to the Moldovan Government. 30. On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005. He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. 31. On 9 August 2006 the applicant was declared a suspect in the criminal proceedings. In particular he was accused of having written the letter of 25 March 1998 to the Ministry of Finance asking it to issue a Treasury bond in favour of Oferta Plus (see paragraph 10 above) while knowing that the energy supplied to Moldtranselectro, for which the Treasury bond was to be issued, had not been consumed by state institutions as stipulated in the Government's Decision of 3 March 1998 (see paragraph 9 above). On the same date C.T. was indicted on similar charges. 32. On the same date the applicant and C.T. were arrested and remanded in custody for ten days on the grounds, inter alia, that they could influence witnesses and hinder the investigation. According to the applicant, before being arrested the investigator made it clear to him that his arrest or release depended on whether he would agree to make the declarations expected of him. 33. Both the applicant and C.T. appealed against the detention order and argued, inter alia, that there had been no reasonable suspicion that they had committed an offence and that the criminal proceedings against them had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. The applicant argued that he had been arrested because he had refused to make the declarations he had been asked to make by the investigating officer and in order to induce him to make such declarations. He also argued that the criminal proceedings had been pending since October 2004 and that since that date he had never failed to appear before the investigating authorities when summoned. On 15 August 2006 the applicant's appeal was dismissed without any reasons being given for rejecting the arguments relied on by the applicant. 34. The applicant's detention was subsequently extended and all his habeas corpus requests rejected. It continued until 19 November 2006 when he was released on bail. 35. Throughout his detention the applicant was detained in the detention centre of the Centre for Fighting Corruption and Economic Crimes (“CFECC”). The room used for meetings between lawyers and detainees had a glass partition to keep them separated. The applicant complained before the domestic courts of the impossibility of holding confidential meetings with his lawyer, but his complaints were dismissed. He did not want the domestic authorities to know about his application to the Court and therefore his application and the power of attorney had to be signed by his wife. 36. On 27 June 2007 the applicant was acquitted by the Centru District Court of all the charges brought against him. 37. The relevant domestic law concerning pre-trial detention was set out in the Court's judgment in Sarban v. Moldova, no. 3456/05, § 52, 4 October 2005. 38. It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass joined together. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his client. 39. Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126). 40. On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices. They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal.
| 1
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train
|
001-90700
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF GÜVEÇ v. TURKEY
| 1
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Violation of Art. 3;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1+6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
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5. The applicant was born on 30 April 1980 and lives in Belgium. 6. On 29 September 1995 a certain Mr Özcan Atik was arrested on suspicion of membership of the PKK. The following day the applicant was arrested in Istanbul upon information allegedly given to the police by Mr Atik. According to that information, the applicant was a member of the PKK. Following his arrest the applicant was placed in police custody. 7. The applicant was questioned by police officers on 5 October 1995. In a written statement prepared by the police and signed by him, the applicant was quoted as having stated that he was a member of the PKK and that he had had a number of meetings with several of its members, including Özcan Atik. One day Özcan Atik had told the applicant that he had asked a certain Menderes Koçak to provide financial assistance to the PKK but that Mr Koçak had refused. Özcan Atik had then asked the applicant to help him set fire to a vehicle owned by Mr Koçak. This they had done one evening with the help of two other persons. The applicant also added that had he not been arrested, he would have taken part in further activities on behalf of the PKK. 8. On 7 October 1995 Mr Koçak identified Mr Atik and another person as the persons who had asked him to give money to the PKK. He did not know whether it had been the same two persons who had subsequently set fire to his vehicle and shop. 9. On 9 October 1995 police officers took the applicant and three other persons, including Mr Atik, to the street where Mr Koçak’s vehicle had been set on fire. 10. On 12 October 1995 the applicant and 21 other persons who had been arrested as part of the same police operation were taken to the Istanbul branch of the Forensic Medicine Institute, where they were examined by a doctor. According to the medical report drawn up the same day, the applicant’s body did not bear any signs of ill-treatment. 11. The same day the applicant was taken to the Istanbul State Security Court, where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him. In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the PKK. He had set fire to the vehicle together with three other persons. In the statement drawn up by the judge, however, the applicant was quoted as having stated that he had set fire to the vehicle on his own. 12. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer. 13. On 27 November 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and fifteen other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. According to Article 125 of the Criminal Code in force at the time, the punishment stipulated for this offence was the death penalty (see Relevant Domestic Law and Practice below). 14. A preparatory hearing was held on 18 December 1995 by the Istanbul State Security Court (hereinafter “the trial court”). One of the three judges on the bench was an army officer. 15. At the first hearing, held on 27 February 1996, the applicant was present but not represented by a lawyer. 16. During the second hearing, held on 1 March 1996, the applicant was still not represented by a lawyer but was questioned by the trial court. The applicant told the trial court that his childhood friend Özcan Atik had told him one day that he had been selling newspapers and that one of his customers had refused to pay. Mr Atik had then suggested “teaching that customer a lesson”. One night the applicant and Mr Atik had arrived outside a big building. Mr Atik had poured some petrol on the street outside the building from a jerry can and set fire to it. The applicant himself had not set fire to any vehicle and he did not know Menderes Koçak. 17. The applicant also told the trial court that, while detained in police custody, he had been given electric shocks, sprayed with pressurised water and beaten with a truncheon; the soles of his feet had also been beaten. He had then signed the statements implicating him in the offences with which he was subsequently charged. As regards the statements taken from him by the prosecutor and the judge on 12 October 1995, the applicant stated that the prosecutor and the judge had only asked him his date of birth; he had not made any statements before them. The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle (see paragraph 9 above). The applicant’s request for release was rejected by the trial court the same day. 18. During the third hearing held on 18 April 1996, a lawyer representing some of the applicant’s co-accused informed the trial court that she would also be representing the applicant. During the same hearing Menderes Koçak also gave evidence as a witness and stated that Özcan Atik had never asked him to give money to the PKK. A vehicle owned by him had been set on fire but he did not think Özcan Atik had done it. 19. The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family. 20. The applicant did not attend four of the subsequent six hearings held at two-monthly intervals. Requests for his release made by his lawyer were all rejected by the trial court. The lawyer argued that there was no evidence against the applicant other than that obtained under ill-treatment. 21. In the course of the 10th hearing, which was held on 29 May 1997 in the applicant’s absence but with the attendance of his lawyer, the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property, and not for the offence with which he was charged in the indictment (see paragraph 13 above). The trial court rejected the request for the applicant’s release. 22. The applicant’s lawyer did not attend the 11th hearing held on 17 July 1997. During the 12th hearing, on 26 August 1997, the lawyer argued that, on account of the testimony given to the trial court by Mr Koçak on 18 April 1996 (see paragraph 18 above), there was no evidence showing that the applicant had committed the offences with which he was charged. 23. The lawyer did not attend the 13th hearing, held on 2 October 1997, because she had other business before a Labour Court. The applicant made his own defence submissions and repeated his allegations of ill-treatment in police custody. He also asked to be released. This request was rejected by the trial court. 24. On 17 October 1997 the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle, and sentenced him to nine years, eight months and ten days’ imprisonment. The trial court considered that the statements given by the applicant in police custody and the statements given by his co-accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle. 25. The applicant appealed. On 12 March 1998 the Court of Cassation quashed the applicant’s conviction. The case was remitted to the trial court for a retrial. 26. On 11 September 1998 the trial court held a preparatory hearing in the retrial. One of the three judges on the bench was a military officer. 27. Eight hearings were held between 27 October 1998 and 30 December 1999. The applicant’s lawyer attended only one of these hearings, that on 18 March 1999, whereas the applicant attended two hearings. During the 5th hearing, held on 15 July 1999, the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime (cf. Öcalan v. Turkey [GC], no. 46221/99, §§ 2-54, ECHR 2005IV). 28. On 18 November 1999 a police chief informed the trial court that, contrary to the allegations, no vehicle belonging to Menderes Koçak had been set on fire. 29. A 9th hearing was held on 21 March 2000. The applicant was present but his lawyer was not. During the hearing Menderes Koçak gave evidence before the trial court and stated that his vehicle had not been burned. No one had asked him to give money to the PKK. When asked by the trial court to explain the inconsistencies between the statement he had made to the police on 7 October 1995 (see paragraph 8 above) and his testimony, Mr Koçak stated that he had not told any such things to the police; he had had to sign whatever was written in the statement drafted by the police officers. 30. During the same hearing the applicant reiterated that he did not know Mr Koçak and had not set fire to any vehicle. He pointed out that he had been arrested at the age of 15 with no evidence against him, and asked to be released. This request was rejected by the trial court. 31. The applicant but not his lawyer attended the 10th hearing, held on 23 May 2000. 32. In the course of the 11th hearing, held on 25 July 2000 in the absence of the applicant’s lawyer, the trial court was presented with a letter drafted by the applicant’s cell-mates. The letter states that “[the applicant] has serious psychiatric problems. His treatment is being overseen by a psychiatric hospital in Istanbul. He is unable to live without the assistance of others and his health is deteriorating. As such, he is unable to attend the hearings and he refused to attend today’s hearing. We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings”. 33. According to a medical report prepared by the prison doctor on 24 July 2000 which was appended to the cell-mates’ letter, the applicant had been taken to a psychiatric hospital on 2 June 2000 and returned to the prison on 11 July 2000. 34. The applicant’s mother also attended this hearing and informed the trial court of the applicant’s serious psychiatric problems. She asked for the applicant to be released from the prison. During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson (Article 516 § 7 of the Criminal Code) but to convict him of the offence of membership of an illegal organisation (Article 168 of the Criminal Code). 35. Nevertheless, the trial court ordered the applicant’s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity (doli capax) at the time of the alleged commission of the offence. 36. On 7 August 2000 the prison doctor reported on the problems which the applicant had been suffering in prison. According to this report, the applicant had attempted suicide in June 1999 by taking an overdose. In August 1999 he had set himself on fire and suffered extensive and serious burns. He had spent three months in hospital where he was treated for his injuries. During that time in hospital he had also received medication for depression. Following his return to the prison his treatment for the burns had continued for five months. His body still bore burn marks. 37. On 2 June 2000 the applicant’s psychological health had deteriorated and he was taken to hospital, where he stayed for a month and a half. His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone. 38. The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant’s treatment. The applicant needed to spend a considerable time in a specialised hospital. 39. During the 12th hearing, held on 10 October 2000, Ms Mükrime Avcı, one of the applicant’s legal representatives named above (see paragraph 2), submitted a power of attorney to the trial court and informed that court that she was taking over the applicant’s representation. Ms Avcı argued in her written observations submitted to the trial court the same day that the applicant had only been 15 years old at the time of his arrest. Turkey was a Party to the United Nations Convention on the Rights of the Child. Article 40 § 3 of that Convention recommended that the States Parties establish procedures and institutions specifically for children charged with criminal offences. Indeed, juvenile courts existed in Turkey. However, the applicant had been charged with an offence falling within the jurisdiction of State Security Courts and, as such, the domestic law prevented him from being tried by a juvenile court. Had the applicant been tried before a juvenile court, he would not have been kept in police custody for 12 days, a lawyer would have been appointed to represent him and his case would have been concluded within a short time. 40. The lawyer added that the ill-treatment to which the applicant had been subjected in police custody, coupled with his long detention in prison, had been too much to bear for a child of his age. He had attempted to take his own life on two occasions. He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings. The lawyer asked for the applicant to be released so that he could receive medical treatment. 41. The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of 25 July 2000 (see paragraph 35 above). The same day the trial court ordered the applicant’s release from prison on bail. 42. The applicant attended the 14th hearing, held on 13 March 2001 and informed the trial court that, although he had gone to the hospital for a medical examination, the hospital authorities had refused to examine him as he had no official letter of referral. The trial court issued a new order of referral. 43. The applicant was examined at a psychiatric hospital on 25 April 2001. According to the report pertaining to that examination, other than the two instances referred to above (see paragraph 36), the applicant had made another attempt to kill himself, by slashing his wrists, in September 1998. The extensive burn marks on his arms and body were still visible. His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there. Between 2 June 2000 and 11 July 2000 he had been treated in hospital for “major depression”. His psychological problems were now in remission. It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility. 44. In its 16th hearing, held on 22 May 2001, the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to eight years and four months’ imprisonment. The trial court stated that the statements made by the applicant in police custody, and then before the prosecutor and the judge at the end of his police custody, had been decisive in reaching the conclusion that he was a member of the illegal organisation. In those statements the applicant had described the “various activities” in which he had been involved. The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets. 45. The applicant appealed. On 13 March 2002 the prosecutor at the Court of Cassation submitted his written observations to that court and asked for the applicant’s conviction to be upheld. These observations were not communicated to the applicant or to his lawyer. 46. In her detailed appeal submissions the applicant’s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle. As established by the trial court, however, no such incident had occurred and the owner of the vehicle had made no such complaint. There was no place in the Turkish legal system for abstract concepts such as “various activities” (see paragraph 44 above). For any activity to be relied on in evidence, it should have been set out clearly and supported with adequate evidence. Furthermore, the trial court’s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation’s leaflets. The lawyer also reiterated her arguments concerning the applicant’s age and her references to the United Nations Convention on the Rights of the Child (see paragraph 39 above). 47. On 20 May 2002 the Court of Cassation upheld the applicant’s conviction. 48. According to the information provided to the Court by the applicant’s lawyer, in 2002 the applicant left Turkey for Belgium, where he was subsequently granted refugee status. 49. Article 125 of the Criminal Code as it stood at the material time provided that: “Anyone committing an act designed to subject the State or a part of the State to the domination of a foreign State, to diminish its independence or to impair its unity, or which is designed to remove from the administration of the State a part of the territory under its control shall be liable to the death penalty.” “Any person who, with the intention of committing the offences defined in sections 125, 131, 146, 147, 149 or 156, forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.” 51. Article 516 of the Criminal Code provided: “Any person who destroys, demolishes, spoils or damages property owned by another person shall, upon the complaint of the aggrieved person, be sentenced to not less than one and not more than three years’ imprisonment...” According to paragraph 7 of this Article, if the offence in question was carried out using inflammable or explosive material and if the property in question was a motor vehicle, the sentence to be imposed varied between three and seven years. 52. At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the State Security Courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. 53. Article 138 of the Code of Criminal Procedure as it stood at the material time stipulated that, from the time of their arrest, persons under the age of 18 should be given the assistance of an officially assigned legal representative without having to ask for it. According to Article 31 of the above-mentioned Law no. 3842, however, Article 138 was not applicable to persons accused of offences within the jurisdiction of the State Security Courts. 54. According to Article 6 § 1 of the Law on the Establishment, Duties and Procedures of Juvenile Courts (Law No. 2253 of 21 November 1979; repealed and replaced by Law No. 5395 of 15 July 2005 on the Protection of the Child), only juvenile courts had the power to try persons under the age of 15. According to the last paragraph of that Article, however, even children under the age of 15 charged with offences falling within the jurisdiction of State Security Courts were to be tried before those courts rather than before juvenile courts. 55. Article 37 of Law No. 2253 also stipulated that minors could only be detained on remand in prisons specially designed for them. In places where no such prisons existed, minors were to be kept in a part of a normal prison separate from where adults were detained. For the purposes of this Law the term “minor” means persons who were under 15 years of age at the time when the offence was committed. 56. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (dated 5 July 1967) stipulated that detainees under the age of 18 were to be kept separately from other detainees. Under Article 106 of the same Regulations, detainees had the possibility to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”. 57. Pursuant to the Law on the Protection of the Child, which on 15 July 2005 replaced the above-mentioned Law on the Establishment, Duties and Procedures of Juvenile Courts, persons under the age of 18 can only be tried before juvenile courts. However, if the prosecuting authorities allege that the offence with which the juvenile is charged was committed jointly with adults, the juvenile may be tried before the ordinary criminal courts together with those adults. 58. The United Nations Convention on the Rights of the Child 1989 (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 1 of the UN Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” Article 3(i) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37(a) and (b) provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age. (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” Article 40 provides as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society. 2. To this end ... the States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ... (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; ... (vii.) To have his or her privacy fully respected at all stages of the proceedings. ...” 59. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows: “65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period. 66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.” 60. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, insofar as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...” 61. Article 17 of the European Social Charter 1961 regulates the right of mothers and children to social and economic protection. In that context, the European Committee of Social Rights noted in its Conclusions XVII-2 (2005, Turkey) that the length of pre-trial detention of young offenders was long and the conditions of imprisonment poor. 62. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons” (CPT/Inf(99) 2 EN, publication date: 23 February 1999). 63. In its report prepared in respect of its visits conducted in Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following: “[i]n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (“the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities”) have apparently had little practical impact.” 64. According to UNICEF, the juvenile justice system is still in its infancy in Turkey in 2008. Judges were learning about child-sensitive detention centres, alternative dispute resolution and due process for children in conflict with the law.
| 1
|
train
|
001-21976
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,001
|
AGNISSAN v. DENMARK
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant, Yapo Nazaire Agnissan, is a citizen of the Ivory Coast, born in 1974 and living in Denmark. He is represented before the Court by Mr Anders Jensen, a lawyer practising in Roskilde, Denmark. The respondent Government are represented by their agent, Mr Hans Klingenberg of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 July 1994 the applicant came to Denmark. On 21 September 1994 he approached the police and requested asylum. He presented himself as Aristide Mazimpaka, a Rwandan national. He alleged that he had just arrived and that he was not in possession of any identification papers. Pending the examination of his request for asylum the applicant was detained until 14 December 1994 under section 36 of the Aliens Act (Udlændigeloven). During this period of time the applicant was interviewed by the police on 3 October 1994 and 8 November 1994. He explained, among other things, that on 29 August 1994 unknown armed men invaded the house of his family in Kigali, the capital of Rwanda, and shot his parents and his brothers. He managed to escape. He could not give specific details regarding his journey to Denmark, save that he went to Kenya first and, from there, he went as a stowaway on a ship to a port in some country where two girls helped him to a railway station and paid for his ticket. On 13 December 1994 the aliens authorities (Direktoratet for Udlændinge) decided not to grant the applicant refugee status, the reason being that there were insufficient evidence to prove that the applicant was in fact a Rwandan national, especially as he did not speak kinyawanda, the main language in Rwanda; his general knowledge of Rwanda seemed very limited compared with the information given by the applicant that he had attended school there for several years; the applicant had not been involved with the Rwandan authorities in any way either in the political or the penal system; and finally the only reason given by the applicant for the asylum request was his fear concerning the general situation in Rwanda. This decision was upheld on appeal by the Aliens Appeal Board (Flygtningenævnet) on 13 February 1996 with the same reasoning and a deportation order was given with the deadline for departure being 28 February 1996. It was stressed that if the applicant proved unwilling to leave the country the deportation order would be enforced. This led the applicant to apply on 20 February 1996 to the Ministry of the Interior for exceptional leave to remain in Denmark. The Ministry refused this request on 22 February 1996 but postponed the deadline for departure until 11 March 1996. Furthermore, the Ministry referred part of the application to the aliens authorities for further consideration. On 18 December 1996 the aliens authorities rejected the application. It does not appear that the applicant appealed against this decision. As the applicant had no travel documents it turned out to be difficult for the police authorities to enforce the deportation order. Thus, the applicant was requested to attend further interviews with the police authorities in order to gather sufficient information to determine the applicant’s home country and, subsequently, to obtain the necessary travel documents. The applicant was requested to attend interviews on 21 February, 5 March, 21 March, 24 May, 28 May and 5 September 1996 as well as on 14 March, 17 April and 27 August 1997. The applicant did not attend the interviews scheduled for 21 February, 5 March and 28 May 1996. The Government allege that at the interview held on 5 September 1996 a language test had to be interrupted as the applicant did not co-operate. The applicant disputes this allegation, claiming that he did complete the test. At the interview held on 17 April 1997, in order to try to confirm the information given by the applicant on his nationality, the police arranged a telephone conversation between the applicant and representatives at the Rwandan Embassy in Bonn. On 27 August 1997 the police took action under section 34, subsection 2 of the Aliens Act imposing on the applicant a duty to report in person each day at 10 o’clock to a police unit connected to an asylum centre in Sandholm. It was explained to the applicant that failure to report might result in his detention. At the time the applicant was living some distance from Sandholm in another asylum centre in Tårnby. The applicant complained in vain about this action to the Ministry of the Interior. The applicant did not report on 28 August 1997. Thus, on 29 August 1997, the police drew the applicant’s attention to the possible consequences of noncompliance with the duty to report. The applicant failed to report from 30 August until 1 September 1997. On 2 September 1997 the police turned up at the centre where the applicant was living, and with the assistance of an interpreter yet another interview was held, which included telephone conversations between the applicant and representatives at the Embassies of Rwanda in Bonn and in London in order to try to determine the applicant’s nationality. These telephone calls did not, however, resolve the question of his nationality. The police pointed out once again the possible consequences of noncompliance with the duty to report. Nevertheless, the applicant did not report from 3 to 7 September 1997. On 8 September 1997 the police decided to take the applicant into custody pursuant to the Aliens Act, section 36, subsection 1 cf. section 34, subsection, 2. On 10 September 1997 the Hillerød Criminal Court (kriminalretten) found the detention to be in accordance with the provisions of the Aliens Act. On appeal, this decision was upheld on 1 October 1997 by the High Court of Eastern Denmark (Østre Landsret), finding that there was no basis for assuming that the reference in section 36 to the measures referred to in section 34 did not include all measures mentioned in section 34, including the measures pursuant to the latter’s subsection 2. In this respect the High Court had regard to the wording of the Aliens Act, section 36, subsection 1, the preparatory rules regarding section 34, subsection 2, and the fact that Act no. 410 of 10 June 1997 did not amend section 36. Furthermore, the High Court emphasised that the applicant had not complied at all with the duty to report though the consequences thereof on two occasions had been stressed. Application for leave to appeal to the Supreme Court (Højesteret) was refused on 27 October 1997. During the applicant’s detention, on 29 September 1997 the police arranged a telephone conversation between the applicant and representatives at the Rwandan Embassy in London in order to confirm the information given by the applicant on his Rwandan nationality. Also during the applicant’s detention, on 28 October 1997, the police arranged another language test for the applicant. An analysis of the test showed that in all probability the applicant was not from Rwanda as his French accent was believed to be of West African origin. The applicant was released the following day, on 29 October 1997. Subsequently, on 16 February 1998 the applicant was confronted with the result of the language test, on 28 October 1999 he was interviewed by the police and on 27 March 2000 having obtained his consent the applicant’s fingerprints were sent to Interpol with a view to identification by inquiry in certain West African countries (Ivory Coast, Senegal, Togo, Cameroon, Benin and Guinea). Other means of inquiry included a visit to the Embassy of the Ivory Cost on 29 March 2000 during which the applicant refused to speak French. On 4 April 2000, however, a representative at the embassy could listen to the tape recording of the applicant’s French. On 19 February 2001 a member of the Danish Refugee Council informed the National Commissioner of Police that the applicant wanted to marry a Danish citizen for which reason he had now decided to disclose his true identity. On 26 February 2001 the applicant revealed that his name was in fact Yapo Nazaire Agnissan and he was a citizen of the Ivory Coast. He flew to Denmark from Abidjan on 17 July 1994 on his Ivory Coast passport. Upon his arrival in Copenhagen airport on 18 July 1994 he posted his passport back to his family in the Ivory Coast. The applicant still remains in Denmark. Section 36, subsection 1 of the Aliens Act, which was amended by Act no. 410 of 10 June 1997, reads in so far as relevant: “If the measures referred to in section 34 are insufficient to ensure enforcement of ... deportation of an alien, who otherwise ... is not entitled to stay in Denmark, the police may decide that the alien is to be detained in custody.” Section 34, subsection 1 reads in so far as relevant: “Until a decision has been made as to whether an alien shall be expelled...or deported... and until such an order can be enforced, the police may decide, where it is considered necessary to ensure the alien’s presence, that the alien must: 1) deposit his/her passport, other travel documents and tickets with the police; 2) present security fixed by the police; 3) take up residence in accordance with the further instructions of the police; 4) report to the police at specific intervals.” The above Act no. 407 of 10 June 1997 also amended section 34 by adding a subsection 2. In so far as relevant section 34, subsection 2 reads: “If it is considered appropriate for the purpose of ensuring the presence of an alien, the police may decide that an alien shall report to the police at regular intervals if: 1) the alien requests asylum on arrival, or thereafter and then does not assist in clarifying the case; 2) the alien fails to appear for an interview with the Directorate of Aliens or the police to which he/she was called; ... 5) the police are in charge of the alien’s departure and the alien does not assist therein, cf. Section 40 subsection 3, final sentence”. Section 40, subsection 3 contains a duty to provide the authorities with information and to participate actively in obtaining the necessary travel documents, visa etc. and finally to co-operate physically in the deportation. It appears from the general notes to Act No. 407 of 10 June 1997 which introduced inter alia subsection 2 to section 34): “To prevent abuse of the permit system of the Aliens Act, it is furthermore important to make it as unattractive as possible to aliens whose applications for a residence permit are being examined to obstruct the procuring of information in a case. It is moreover important to prevent aliens whose applications for a residence permit have been finally refused from obstructing deportation from the country... The amendments proposed are intended to motivate such persons to assist in deportation from Denmark.” It appears from the detailed notes regarding section 34, subsection 2: “The intention of the amendment is to allow for systematic application of a duty to report (daily, if necessary). If the measures referred to in section 34 are insufficient to ensure enforcement of refusal of entry, expulsion or deportation, the court will be able to detain an alien, cf. in detail section 36, subsection 1, first sentence. Part of this assessment might be whether, as a less coercive measure, a duty to report may be imposed pursuant to the proposed provision in section 34, subsection 2, and whether the alien has violated a decision to that effect”
| 0
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train
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001-77327
|
ENG
|
SVK
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CHAMBER
| 2,006
|
CASE OF PAULIK v. SLOVAKIA
| 1
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Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Nicolas Bratza
|
5. The applicant was born in 1931 and lives in Bratislava. 6. In 1966 the applicant had a sexual relationship with a woman who gave birth to a daughter, I., on 17 December 1966. 7. As the applicant denied that he was the father, the mother brought proceedings in the Bratislava Regional Court (then Mestský súd, now Krajský súd) for a declaration of paternity. 8. On 31 January 1967 the mother married another man. 9. On 2 February 1970 the Regional Court found that the applicant was the father of I. and ordered him to contribute to her maintenance. 10. The Regional Court reached its finding after hearing evidence from several witnesses. It also had regard to comprehensive documentary evidence and took into consideration the results of a blood test, a test known as a “bio-hereditary test” (dedičsko-biologická skúška) and a report prepared by a sexologist. It was established that the applicant had had intercourse with the mother sometime between 180 and 300 days before I.'s birth. In such cases, a presumption of paternity arose under Article 54 of the Family Code as worded at the material time (see “Relevant domestic law and practice” below), unless there were important grounds to rebut the presumption. No such important grounds were, however, established. 11. The judgment of 2 February 1970 became final and binding and the applicant complied with it, in particular by making maintenance payments. He did not, however, have any contact with I. as the mother was opposed to such contact. 12. I. learned of the applicant's existence when she obtained her first identity card. She and the applicant met for the first time shortly before she left secondary school. Subsequently, the applicant started seeing I. and, over time, their meetings became more frequent. The applicant provided I. and, after she married, her family with financial support and developed emotional ties with her and her family. 13. In 2004 the applicant and I. had a quarrel over a financial contribution, following which I. proposed that the issue of the applicant's paternity be retested. 14. Subsequently, I., the mother and the applicant voluntarily submitted to a DNA blood test with a view to determining whether the applicant was indeed I.'s father. On 18 March 2004, on the basis of that test, an expert drew up a report in which he found that the applicant was not I.'s father. I. and her family subsequently broke off all contact with the applicant. 15. The applicant then requested the prosecution service to challenge his paternity under Article 62 of the Family Code. He maintained that he was not I.'s biological father and that the declaration of his paternity had been made in a final court judgment on the basis of expert evidence that corresponded to the state of scientific knowledge at that time. Although methods for establishing paternity had evolved and he had fresh proof that he was not I.'s father, he had no means, ordinary or extraordinary, available to him under the Family Code or the Code of Civil Procedure for bringing the legal position into line with the biological reality. 16. On 2 December 2004 the Bratislava V. District Prosecutor interviewed I. in connection with the applicant's motion. She stated, inter alia, that if the applicant did not want her to be his daughter, she had no objection to his denial of paternity. 17. The Bratislava Regional Prosecutor and the Prosecutor General informed the applicant in letters of 30 December 2004 and 31 March 2005 respectively that the determination of his paternity was res judicata and that the prosecution service lacked the competence to have the matter reviewed by a court. 18. On 4 March 2005 the applicant wrote to the Chairman of the National Council of the Slovak Republic (Národná rada Slovenskej republiky) and to the Chairman of the Constitutional Affairs Committee of the National Council requesting them to take legislative measures with a view to securing the effective protection of his rights. In response, the secretary to the Chairman of the National Council referred the applicant to the Prosecutor General and advised him to request the Prosecutor General to challenge the 1970 judgment by way of an extraordinary appeal on points of law (mimoriadne dovolanie). 19. On 7 March 2005 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). The complaint was directed against all levels of the public prosecution service and the National Council. The applicant maintained that there was a discrepancy between the legal position created by the judgment of 1970 and the real situation reflected in the DNA report of 2004 and that there were no legal means of removing that incongruity under the Code of Civil Procedure or the Family Code. According to the applicant, neither the general public nor I. had any legitimate interest in maintaining the situation as it stood. Conversely, he had an interest in ensuring that the legal position and the biological reality corresponded. The applicant also stated that the authorities had failed to take adequate positive measures to protect his rights. As a result, he had wrongly been identified as I.'s father in various public documents and records, such as the registers of births and marriages. The information about his paternity had also been included in his medical records and employment files. His identity had thus been affected and he had no way of clarifying the matter. Moreover, in law he was related to I.'s family. Thus, in the event of need, she and her children would be able to oblige him to contribute to their maintenance. As I. was legally his daughter, she was also his heir, which limited his freedom of testamentary disposition. 20. The Constitutional Court examined the complaint as a matter of priority and on 17 March 2005 declared it inadmissible. It observed that the prosecution service had not been guilty of any lack of diligence in dealing with the applicant's claims. Although the outcome had not been to the applicant's satisfaction, they had dealt with his claims in accordance with the existing law. Thus, in so far as the complaint was directed against the prosecution service, the Constitutional Court ruled that it was manifestly illfounded. As for the remainder of the complaint, it observed that issues of paternity fell within the jurisdiction of the ordinary courts, which were not only bound by national law but also by international instruments. It could not therefore be assumed that they would have refused to protect the applicant's interests if he were to have recourse to them. As he had not done so, the remainder of his complaint was inadmissible for nonexhaustion of the available remedies. 21. Pursuant to Article 51 § 1, a husband whose wife gave birth during the marriage or no later than 300 days after the marriage was dissolved or annulled was considered to be the child's father. 22. Otherwise the father was considered to be the man whom both parents had declared to be the father (Article 52 § 1). 23. Under Article 54, if paternity was not established by a joint declaration by the parents, the child or the mother could institute proceedings for its determination by a court. In such cases, unless there were important grounds for excluding his paternity, a presumption arose that a man who had had intercourse with the mother no less than 180 and no more than 300 days before the birth was the father. 24. A husband could deny paternity in court within 6 months of learning that his wife had given birth to a child (Article 57 § 1). Similarly, the wife could contest her husband's paternity within 6 months of the birth (Article 59 § 1). 25. If paternity had been established following a joint declaration by the parents, it could be contested by either the man or the mother within six months of the birth or the declaration, whichever was the later. The man was entitled to contest paternity in such a situation only if there was evidence to exclude the possibility of his being the father (Article 61). 26. After the expiry of the relevant six-month timelimit, paternity could still be challenged by the Prosecutor General if the interests of society so required (Article 62). 27. Even after the timelimit for the parents to deny paternity has expired, paternity can still be challenged by the child. However, such a challenge will only be admissible if it is in the child's interest and at least one of the parents is still alive (Article 96). 28. Article 159 §§ 1 and 3 provide that a judgment which has been duly served and can no longer be appealed is final and binding (právoplatný). Once a case has been decided and the decision has become final and binding, it may not be re-examined. 29. Under Article 228 § 1 a party to civil proceedings may challenge final and binding judgments by lodging a request to re-open the proceedings where (a) facts, decisions or evidence have come to light which the requesting party could not use in the original proceedings for reasons beyond his or her control and which may result in a more favourable decision for the requesting party; (b) evidence can be examined which could not be examined in the original proceedings and may result in a more favourable decision for the requesting party; (c) the decision against the requesting party was the consequence of a criminal offence by the judge; and (d) the European Court of Human Rights has found that the requesting party's human rights or fundamental freedoms have been violated in a decision or the procedure that preceded it and the consequences of the violation were serious and have not been adequately redressed by the award of just satisfaction. 30. Article 230 § 1 provides that a request to reopen proceedings must be lodged within three months of the date on which the party concerned learned of or was able to rely on the grounds for reopening the case. 31. Pursuant to Article 230 § 2, once a judgment has been final and binding for three years, a request to reopen the proceedings can only be lodged in cases referred to under Article 228 § 1 (a) (provided the contested judgment was based on a criminal judgment that has since been quashed), (c) or (d). The time allowed for lodging a request to reopen the proceedings cannot be extended. 32. An ascendant may disinherit a descendant for any of the reasons set out in paragraph 1 of Article 469a. These include situations in which the descendant (a) contrary to bonos mores has failed to provide the ascendant with necessary assistance in illness, old age or other serious circumstances; (b) has consistently shown no interest in the ascendant; (c) has been convicted and sentenced for an intentional offence to no less than one year's imprisonment; and (d) has led a constantly disorganised life.
| 1
|
train
|
001-57983
|
ENG
|
FRA
|
CHAMBER
| 1,996
|
CASE OF REMLI v. FRANCE
| 3
|
Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Six month period);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - finding of violation sufficient
|
R. Pekkanen
|
6. Mr Saïd André Remli, a French national of Algerian origin, is currently in custody at Les Baumettes Prison in Marseilles. 7. On 16 April 1985, while attempting to escape from Lyons-Montluc Prison, the applicant and a fellow prisoner of Algerian nationality, Mr Boumédienne Merdji, knocked out a warder, who died four months later as a result of the blows he had received. 8. The two prisoners were charged with intentional homicide for the purpose of facilitating, preparing or executing the offences of escape and attempted escape. In a judgment of 12 August 1988 the Indictment Division of the Lyons Court of Appeal committed them for trial at the Rhône Assize Court. On 5 December 1988 the Court of Cassation dismissed an appeal on points of law that Mr Remli had lodged against the decision to commit him for trial. 9. The trial at the Assize Court took place on 12, 13 and 14 April 1989. On the first day, when the sitting began, the members of the jury and two additional jurors were drawn by lot. The defendants challenged five of them, the legal maximum, and the prosecution two of them. The jury was subsequently finally empanelled and the hearing of witnesses began. 10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed, counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by one of the jurors on 12 April, before the hearing began, which had been overheard by a third person, Mrs M., and to append her written statement, together with their submissions, to the record of the trial. 11. Mrs M.’s statement of 13 April read as follows: "I, the undersigned Mrs [M.], declare on my honour that I witnessed the following facts: I was at the door of the court at about 1 p.m., next to a group of people. From their conversation, I chanced to overhear that they were members of the jury drawn by lot in the Merdji [and] Remli against Pahon case. One of them then let slip the following remark: ‘What’s more, I’m a racist.’ I do not know that person’s name, but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge’s left. Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital, but being at the court’s disposal if it proves essential to call me as a witness, I have drawn up this statement to be used for the appropriate legal purposes." 12. The court, composed in this instance solely of the judges, withdrew to deliberate and then delivered the following judgment: "... According to the handwritten statement of a Mrs [M.] of 13 April 1989, one of the members of the jury in the present case said ‘What’s more, I’m a racist’ at the door of the court at about 1 p.m. According to this statement and the written submissions, these words were spoken before the beginning of the first hearing in the instant case and not in the presence of the judges of the Court. The Court is thus not able to take formal note of events alleged to have occurred out of its presence. For these reasons, it Refuses the application made to it for formal note to be taken; Holds that the applicants’ written submissions and the statement of Mrs [M.] are to be appended to the record of the trial; ..." 13. On 14 April 1989 the Assize Court sentenced Mr Remli to life imprisonment and Mr Merdji to a twenty-year term, for two-thirds of which he would not be liable to any form of release. 14. Mr Remli appealed on points of law. He argued mainly that the Assize Court had made a mistake of law and had disregarded Article 6 para. 1 (art. 6-1) of the Convention in holding that it was "not able to take formal note of events alleged to have occurred out of its presence" when it had power to do so. 15. In a judgment of 22 November 1989 the Court of Cassation dismissed the appeal. It gave the following reason in particular: "The Assize Court rightly refused to take formal note of events which, assuming they were established, had taken place outside the hearing, such that it could not have been in a position to note them." 16. Procedure in the Assize Court is governed by Articles 231 to 380 of the Code of Criminal Procedure ("CCP"). The Assize Court consists of the court properly speaking - the presiding judge and, normally, two other judges - and the jury, composed of citizens who satisfy the conditions of eligibility laid down by law. It tries mainly serious criminal cases sent to it by the Indictment Division and related or inseparable lesser offences. No reasons are given in its judgments, which are appealable only on points of law. 17. For each case on the Assize Court’s list a jury is empanelled at the beginning of the trial. It contains nine jurors, drawn by lot from a session list. This list contains thirty-five names drawn by lot every three months from an annual list, itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register. One or more additional jurors are also drawn by lot and attend the trial in order that they may, if necessary, replace any juror who is unable to sit. The jury is constituted at the point when the names of nine jurors who have not been challenged and the names of the additional jurors have all been drawn by lot. 18. As the names of the jurors are being drawn, the defendant or defendants are entitled to challenge up to five of them and the prosecution up to four. Their grounds for doing so cannot be given. 19. Article 668 CCP provides: "Any judge may be challenged on any of the following grounds: 1. Where the judge or his spouse is a blood relative or a relative by marriage of one of the parties or of a party’s spouse, up to the degree of second cousin inclusive. The challenge may be made against the judge even in the event of divorce from his spouse or the latter’s death where the spouse was a relative by marriage of one of the parties, up to the second degree inclusive; 2. Where the judge or his spouse, or a person in respect of whom either acts as guardian (tuteur), supervisory guardian (subrogé tuteur) or court-appointed administrator, or a company or association in whose management or supervision either takes part has an interest in the dispute; 3. Where the judge or his spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of a director or manager of a company that is a party to the proceedings; 4. Where the judge or his spouse is dependent on one of the parties; 5. Where the judge has dealt with the case as a judge, arbitrator or legal adviser, or where he has given evidence as a witness relating to the facts of the case; 6. Where there has been litigation between the judge, his spouse or their lineal blood relatives or relatives by marriage and one of the parties, his spouse or his lineal blood relatives or relatives by marriage; 7. Where the judge or his spouse is litigating in a court of which one of the parties is a judge; 8. Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties; 9. Where there have been any disagreements between the judge or his spouse and one of the parties sufficiently serious to cast doubt on his impartiality." Article 669 CCP provides: "A charged person, accused or any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the Criminal Court, the Court of Appeal or the Assize Court must, if the challenge is to be valid, make an application to the President of the Court of Appeal. Members of State Counsel’s Office cannot be challenged. The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence. A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since, where they are such as to constitute a ground for challenge." In the case of the Assize Court these provisions apply only to the judges and not to the jurors. 20. The members of the jury, standing bareheaded, are addressed by the presiding judge as follows: "You swear and promise to consider the charges that will be brought against X ... with the greatest care; not to betray either the interests of the accused or those of society, which is accusing him/her; not to communicate with anyone until you have returned your verdict; not to be swayed by hatred or spitefulness or by fear or affection; to reach your verdict in the light of the charges and the defence, according to your conscience and your innermost conviction, with the impartiality and firmness that befit a free man of integrity; and to preserve the secrecy of the deliberations, even after you have discharged your office." Each of the jurors is individually called upon by the presiding judge and replies, raising his hand: "I swear." 21. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to "take formal note" of it. This is the party’s only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 1977, Dalloz-Sirey 1978, p. 28) The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It also has an unfettered discretion to decide whether evidence should be taken to verify them (Court of Cassation, Criminal Division, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985, Garbidjian). 22. Interlocutory decisions on such matters can be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits (Article 316 CCP). 23. Article 662 CCP provides: "In matters within the jurisdiction of the Assize Court, the Criminal Court or the police court, the Criminal Division of the Court of Cassation may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank, either where the court that would normally have jurisdiction cannot be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias. An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor attached to the court dealing with the case, or by the person charged, or by a civil party to the proceedings. ... The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise. ..." The Criminal Division has unfettered discretion to determine whether such a ground is made out on the alleged facts (Court of Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272; 9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61; 17 November 1964, Bull. crim. no. 301). An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question. This procedure can be used only in respect of a whole court and not against one or more members of a collegiate court (Court of Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343; Revue de science criminelle et de droit pénal comparé 1977, p. 603, comments by J. Robert).
| 1
|
train
|
001-89793
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,008
|
POWERACT INDUSTRIES v. TURKEY
| 4
|
Inadmissible
|
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
The applicant company, Poweract Industries, is a private company which is based in Hong Kong. It is represented before the Court by Mr S. Tepe, a lawyer practising in Mersin. On 13 March 2002 the applicant company participated in a tender held by the Mersin Enforcement Office (İcra Müdürlüğü). There were no other participants and the applicant company bought 17,000 telephones that had been imported by another private company which had later disappeared without making payment. On 26 April 2002, after the sale became final, the applicant company requested delivery of the telephones. The Mersin Enforcement Office refused delivery on the ground that the Customs Office had requested, in a letter dated 25 January 2002, that the sale and delivery procedure be annulled on account of outstanding customs duty. On 2 May 2002 the applicant company filed a complaint with the Office of the Mersin Enforcement Judge (İcra Tetkik Mercii Hakimliği) and requested delivery of the telephones as well as the annulment of the Mersin Enforcement Office’s decision. On 7 May 2002 the Judge of the Mersin Enforcement Office held that, in accordance with the relevant provisions, the Customs Office could have requested cancellation of the tender before it became final, whereas the law did not provide for the annulment of a tender after the sale had become final. On 14 May 2002 the Mersin Enforcement Office notified the Customs Office of the above-mentioned decision and requested delivery of the telephones to the applicant company. On 6 June 2002 the applicant company sent a letter to the Customs Office, requesting delivery of the telephones. The telephones had still not been delivered when the application was lodged with the Court. The applicant company’s criminal complaints against three customs officers were to no avail.
| 0
|
train
|
001-113956
|
ENG
|
POL
|
ADMISSIBILITY
| 2,012
|
KOWAL v. POLAND
| 4
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
|
1. The applicant, Mr Sebastian Kowal, is an Polish national, who was born in 1987 and lives in Brenna. He is represented before the Court by Mr S. Tatka, a lawyer practising in Cieszyn. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unspecified date in 2008 the Social Assistance Centre in Brenna instituted proceedings with a view to making the applicant’s father A. K. undergo treatment for alcoholism. They referred to numerous police interventions at the family apartment as a result of A.K.’s repeated acts of aggression and violence against his family and to a diagnosis made by a psychiatrist to the effect that he suffered from alcoholism. 5. He apparently failed to comply with that order. 6. On 11 August 2008 the applicant informed the police of acts of domestic violence committed by his father. 7. On 9 September 2008 the applicant’s mother lodged an action for separation with the Bielsko-Biala Regional Court. 8. On 24 November 2008 a bill of indictment against A.K. on charges of domestic violence was lodged with the Cieszyn District Court. 9. On 5 December 2008 the Bielsko-Biala Regional Court allowed the applicant’s mother’s separation claim. In its judgment the court established that the applicant’s mother and father were to use separate parts of the family house. 10. On 13 February 2009 the Cieszyn District Court convicted the applicant’s father of domestic violence (znęcanie sie nad osobą najbliższą). The applicant’s father submitted himself to the sentence (dobrowolne poddanie sie karze). The court sentenced him to one year and three months’ imprisonment and conditionally stayed the execution of that sentence for a probation period of four years. The court also obliged him to abstain from alcohol abuse and assigned a probation officer to supervise his conduct. 11. On 5 November 2009 the applicant, his mother and younger brother requested the court to lift the stay of the execution of the prison sentence. They submitted that A.K. continued to drink and that his behaviour remained violent. 12. On 21 December 2009 the court held the first hearing in the case. It heard evidence from the applicant, his mother, his brother, the probation officer and three other persons. It had regard to the police records and to the probation officer’s file. It found that the applicant’s father had continued to be violent, had battered his wife, proffered insults and humiliated his sons and had abused alcohol. 13. The next hearing was held on 1 February 2010. The court heard evidence from the applicant’s younger brother and ordered that an expert report on A.K.’s mental health be prepared. 14. On 13 April 2010 the Cieszyn District Court gave a decision. It noted that the applicant’s mother had declared that her husband’s behaviour had slightly improved and that therefore there were grounds for accepting that he was capable of mending his ways. The court was of the view that in these circumstances it would not be justified to order the prison sentence to be executed. However, it ordered the defendant to leave the family apartment within 14 days, referring to Article 72 § 1 (7) (b) of the Criminal Code. It observed that this obligation could be imposed on a defendant regardless of his ownership of the apartment and that it only limited him in the exercise of the right to live here, his ownership rights remaining intact. 15. On 19 April 2010 the applicant’s father appealed against this decision. He requested that the obligation to leave the house be lifted. A hearing before the appellate court was scheduled for 14 June 2010. 16. In 2010 the probation officer contacted the applicant and his mother on the one hand and A.K. on the other within the framework of the supervision of the execution of the judgment given on 13 February 2009 on the following dates: 2, 3, 3, 21 and 26 January, 29March, 13, 15 and 29 April, 1 and 4 May 2010. 17. On 4 May 2010 the applicant wrote to the probation officer and complained that his father continued to be violent. 18. On 17 August 2010 the Bielsko-Biala Regional Court upheld the decision of 13 April 2010. It therefore became final on that date and A.K. was obliged to leave the house by 31 August 2010. He failed to do so. 19. On an unspecified later date the applicant requested the assistance of a local bailiff. In reply, he was informed orally that it was legally impossible for the bailiff to take any enforcement steps if the person ordered to leave the apartment refused to do so. 20. By a letter of 23 September 2010 the probation officer requested the Cieszyn District Court to take steps in order to have the decision of 13 April 2010 executed, referring to A.K.’s failure to move out. 21. At the hearing held on 4 November 2010 A.K. informed the court that he had been trying to find a new apartment, but that he had not found one so far. The court adjourned the examination of the case until 21 December 2010. 22. On 17 December 2010, in a civil case for the division of marital property, the applicant’s parents concluded a settlement on the basis of which A.K. was obliged to move out of the family house within six months from that date. This settlement became final on 25 December 2010. 23. During the hearing held on 21 December 2010 the Cieszyn District Court was informed of the settlement concluded on 17 December 2010. It adjourned the proceedings until 15 February 2011 in order to read the casefile. 24. On 15 February 2011 the Cieszyn District Court noted that the applicant’s father had moved out of the house on 1 February 2011. It therefore decided not to order the enforcement of the prison sentence and obliged A.K. not to approach the applicant and his mother. 25. Article 13 of the Law on Domestic Violence (Ustawa o przeciwdziałaniu przemocy w rodzinie) was adopted on 29 July 2005. It amended Article 72 § 1 of the Criminal Code by adding to it the following text: When staying execution of a sentence, the court may impose on a defendant an obligation to: (...) 7. (b) leave an apartment where the defendant lives with the victim [of the offence concerned]. 26. In its Recommendation Rec (2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 27. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.
| 0
|
train
|
001-68688
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,005
|
VEERMAE v. FINLAND
| 1
|
Inadmissible
| null |
The applicant, Mr Mairold Veermäe, is an Estonian national who was born in 1977 and is currently serving a prison sentence in Finland. He was represented before the Court by Ms M. Lehtinen, a lawyer practising in Lahti. The respondent Government were represented by their Agent, Mr A. Kosonen, Director at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows. On 6 September 2001 the applicant was convicted by a Finnish district court of an aggravated narcotics offence and sentenced to nine years’ imprisonment. He had been detained since 19 January 2001. On 28 January 2002 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) ordered his expulsion to Estonia. The judgment and the expulsion order both became final. On 5 December 2002 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) proposed to the Ministry of Justice that the applicant should serve the rest of his sentence in Estonia. The applicant and the Ministry of the Interior were invited to submit observations. The applicant objected to being transferred to Estonia, whereas the Ministry of the Interior agreed to the transfer. On 13 March 2003 the Ministry of Justice ordered the applicant to serve the rest of his sentence in Estonia. It relied on section 19(2) of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act (Law no. 21/1987, as amended by Law no. 236/2001) (laki kansainvälisestä yhteistoiminnasta eräiden rikosoikeudellisten seuraamusten täytäntöönpanossa, lag om internationellt samarbete vid verkställighet av vissa straffrättsliga påföljder) and on the Additional Protocol to the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 167; Finnish Treaty Series no. 42/2001). The Ministry of Justice held, inter alia, that the applicant did not have particular bonds with Finland and that he had closer social ties to Estonia than to Finland. The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting the quashing of the Ministry of Justice’s decision. He argued that in Finland it would be possible for him to be released on parole on 18 July 2005 after serving half his sentence; in Estonia release on parole would only be possible after serving two-thirds of the sentence. Even then his release on parole would be discretionary as only 15% of inmates in Estonian prisons were released on parole, whereas the rest served their sentences in their entirety. The de facto sentence would thus be at least one and a half years longer in Estonia, or even twice as long as the sentence in Finland if no release on parole were granted in Estonia. He further claimed that some prisons in Estonia were old and overcrowded. The applicant relied on Articles 5 and 14 of the Convention, maintaining that his transfer to Estonia would place him in a discriminatory position compared to Finnish prisoners and also to other Estonian prisoners in Finland who were not transferred to Estonia. He further relied on the non bis in idem principle (Article 4 of Protocol No. 7 to the Convention). In its opinion to the Administrative Court, the Ministry of Justice stated the following (as transcribed by the court): “... Veermäe has been sentenced to nine years’ imprisonment, of which he will, as a first-time offender, be serving four years and six months. In Estonia it would be possible for Veermäe to obtain conditional release on having served two-thirds of his sentence, that is to say six years. [His] possibility of being released conditionally in Estonia is therefore not significantly smaller than in Finland and the Estonian legislation does not in this respect differ significantly from our own.” On 19 June 2003 the Helsinki Administrative Court dismissed the applicant’s appeal, finding that, even though he was likely to serve a significantly longer prison sentence in Estonia owing to the differences in the possibility of being released on parole, this in itself did not violate Article 3 of the Convention. It also found that Article 3 would not be violated merely on account of the fact that prisons in Estonia were apparently old and overcrowded. It ruled out any discrimination as the International Cooperation in the Enforcement of Certain Criminal Sanctions Act, which naturally only applied to foreigners, provided an acceptable reason for the transfer. The Administrative Court further held that the applicant’s transfer to Estonia would not breach Article 5 of the Convention either, as the sentence he would actually be serving there would not exceed the sentence imposed by the Finnish courts. No appeal lay against the Administrative Court’s decision.. On 26 September 2003 the Finnish Ministry of Justice requested the Estonian Ministry of Justice to consent to the enforcement of the sentence in Estonia. At the time of filing their observations, the Government submitted that the consent of the latter had still not been received. On 24 August 2004 the applicant was transferred to a Finnish open prison facility. Under Chapter 2, section 13 (as amended by Law no. 521/2003), of the Enforcement of Sentences Act (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff), a prisoner may be conditionally released after serving two-thirds or, exceptionally, half of the sentence, in the latter case provided that the prisoner has not served a prison sentence during the three years preceding the offence. The factors to be taken into account in the decision to release a prisoner conditionally include, inter alia, the nature of and the motives for the offence, the prisoner’s earlier lifestyle and his or her behaviour in prison, as well as the situation the prisoner would face on release. Despite the authorities’ discretionary powers, it is very rare for conditional release to be postponed in Finland. A first-time prisoner is usually released after serving half the sentence. Under Chapter 7, sections 1 and 2 (as amended by Law no. 580/2001), a prisoner may appeal to a district court against, inter alia, the postponement of his or her conditional release on serving two-thirds or half of the sentence (whichever is applicable under Chapter 2, section 13). In a report (no. 2001:6), the Committee on Prison Sentences noted the following (on p. 11): “... In the 1990s [conditional release] was almost never postponed. Following the instruction issued by the Department for Prison Administration of the Ministry of Justice in 1995 (no. 9/011/95) postponements have been very rare and almost exclusively based on the prisoner’s consent. ...” It further observed (on p. 245): “[The proposals now being made] would not change the existing legislation as regards the possibility of obtaining conditional release on serving two-thirds of a sentence. Nor would there be any change as regards those prisoners who had not served a term of imprisonment during the three years preceding their offence and who are [therefore] to be released on serving half their sentence. ...” The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112 and Finnish Treaty Series no. 13/1987), including its Additional Protocol, is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. The Transfer Convention came into force in respect of Finland on 1 May 1987 and the Additional Protocol on 1 August 2001. They came into force in respect of Estonia on 1 August 1997 and 1 June 2000 respectively. Thus, they were in force on 6 September 2001 when the applicant was convicted by the district court. Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer. Article 9 (“Effect of transfer for administering State”) reads as follows: “1. The competent authorities of the administering State shall: (a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or (b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” Article 10 (“Continued enforcement”) provides: “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.” Article 11 (“Conversion of sentence”) reads as follows: “1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: (a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State; (b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction; (c) shall deduct the full period of deprivation of liberty served by the sentenced person; and (d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.” Article 3 § 1 of the Additional Protocol provides as follows: “Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.” The Administrative Courts Act (hallinto-oikeuslaki, lag om förvaltningsdomstolarna; 430/1999) provides that the administrative courts examine and decide such administrative appeals, disputes and other cases as fall within their competence under the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag; 586/1996) or other acts of Parliament. Section 24 of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act provides that no appeal lies against the administrative court’s decision. The government bill concerning the Additional Protocol to the Convention on the Transfer of Sentenced Persons (HE 1/2001, p. 19) states: “When considering a request for transfer, the Ministry of Justice should, in particular, pay attention to prison conditions in the State in which enforcement is being requested. The decision would also be affected, inter alia, by the most likely date on which the sentenced person would be conditionally released in accordance with the laws of the State of enforcement. Should the possibilities for conditional release in the State of enforcement be considerably weaker than in Finland, it might be unreasonable to request the transfer of the sentenced person.” The Law Committee, having discussed the government bill, observed in its report (LaVM 2/2001): “The prison conditions in the receiving State should be adequate to ensure that the prisoner will not be subjected to inhuman or degrading treatment or punishment. As a minimum, the conditions in which the prison sentence is served and its duration should not significantly differ from those applicable in Finland. Thus, transfers should also not take place where the legislation of the receiving State concerning the serving of sentences significantly differs from the Finnish legislation, for example in respect of the possibility of conditional release.” The present case is the second one of its kind concerning Finland before the Court, the first application (Altosaar v. Finland (dec.), no. 9764/03, 15 June 2004) having been declared inadmissible by the Court as the applicant was no longer considered the victim of a violation within the meaning of Article 34 of the Convention following his release on parole in Finland. In that case the Estonian Government gave an account of the relevant domestic legislation and practice, a summary of which can also be found below. Article 4 of the Penal Code, which replaced the Criminal Code on 1 September 2002, divides criminal offences into offences in the first degree and offences in the second degree. Criminal offences in the first degree are those for which the Penal Code prescribes a maximum penalty of imprisonment for a term of more than five years, life imprisonment or compulsory dissolution. A criminal offence in the second degree carries a term of imprisonment of up to five years or a pecuniary penalty. In accordance with the Penal Code Implementation Act, which came into force on 1 September 2002, an offence committed prior to the entry into force of the Penal Code which is also punishable as a criminal offence under the Penal Code is assessed in the light of the corresponding Article of the Criminal Code in force at the time of the commission of the offence. If, after the entry into force of the Penal Code, a penalty is imposed for a criminal offence committed prior to the entry into force of the Penal Code, the penalty is based on the one provided for in the corresponding Article of the Criminal Code in force at the time of the commission of the offence, where the Article in question prescribes a lesser penalty. The offence of unlawful handling of large quantities of narcotic drugs or psychotropic substances was punishable by one to five years’ imprisonment from 1 September 2002 to 1 January 2004 (Article 184 of the Penal Code), thus rendering the offence an offence in the second degree under the Penal Code. Since 1 January 2004 the offence has been punishable by one to ten years’ imprisonment, thus making the offence an offence in the first degree. The Criminal Code, valid until 31 August 2002 and in force at the time the applicant committed his offence (9 September 2000-19 January 2001), provided for a scale of penalties from three to seven years’ imprisonment. Conditional release (release on parole) is governed by Article 76 of the Penal Code. If a person has been convicted of a criminal offence in the second degree, or a criminal offence in the first degree through negligence, the court may release the convicted offender conditionally if he or she has actually served at least half but not less than six months of the sentence imposed. If a person has been convicted of intentional commission of a criminal offence in the first degree, the court may release the person conditionally if the convicted person has actually served at least two-thirds of the sentence imposed. In deciding on conditional release, the court must take into consideration the circumstances relating to the commission of the criminal offence, the personality of the convicted offender, his or her previous personal history and conduct while serving the sentence, his or her living conditions and the consequences which conditional release may entail for him or her. In transfer cases, Estonia has used the procedure of conversion of sentences on account of the fact that the criminal law in the sentencing States has, so far, provided for harsher penalties than those prescribed by Estonian law for the same criminal offences. Transfer cases are heard by the Tallinn City Court, which converts the sentence into one applicable for a similar offence under Estonian law. In Altosaar, the Estonian Government could not speculate as to the nature of the sentence, that being solely within the competence of the court. However, taking into account the relevant provisions of law and the current practice in transfer cases, they considered it likely that the penalty imposed in Estonia would be less severe than the one imposed in Finland and that the actual term of imprisonment would be no longer than it would have been in Finland. In that regard, they noted that at the time of the commission of the offence it had carried a penalty of three to seven years’ imprisonment. However, according to the wording of the Penal Code as in force until 1 January 2004, the penalty was imprisonment from one to five years and as this penalty was less severe it thus replaced the one prescribed by the Criminal Code. At the relevant time, therefore, the offence constituted a criminal offence in the second degree and conditional release would be possible after half the sentence had been served. In 2003 six prisoners were transferred from Sweden to Estonia to continue serving their sentences. In all cases Article 9 § 1 (b) of the Transfer Convention was applied, as the penalty in Sweden was significantly harsher (a longer term of imprisonment) than that prescribed for similar offences under Estonian law. In Altosaar, the Estonian Government referred to a judgment delivered on 12 June 2003 by the Tallinn City Court. In that case an Estonian citizen had been convicted in Sweden of a serious drug-related offence and sentenced to nine years’ imprisonment. The Tallinn City Court converted the sentence and imposed one of five years’ imprisonment. In most of the conversion cases, the Tallinn City Court has alleviated the situation of the transferred persons, as the prison sentences imposed have been reduced. In Altosaar the Estonian Government submitted that they had no grounds to believe that the situation would be different regarding other comparable cases. A transferred prisoner had the possibility of bringing the case before the Tallinn City Court and he or she could submit any relevant information for consideration in the conversion of the sentence. An appeal lay to the Court of Appeal. In 2003 a total of 2,205 inmates were released from Estonian prisons, 357 of whom were conditionally released, amounting to 16.6% of the total number released. The average percentage of persons released conditionally has remained stable at 15-18% of all prisoners released throughout the years.
| 0
|
train
|
001-84948
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,008
|
BEIER v. GERMANY
| 4
|
Inadmissible
|
Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
|
The applicant, Mr Wolfgang Beier, is a German national who was born in 1956 and lives in Straubing. The applicant was convicted of murder and has been serving a life sentence in Straubing Maximum Security Prison since 8 February 2002. The highest level of security applies at the prison, as it houses solely inmates serving long-term or life-imprisonment sentences or those in subsequent preventive detention. Radios are permitted in the prison facility in question. On 27 October 2003 the applicant applied for permission to have a CD player and audio CDs and a play station and its necessary accessories. On 3 November 2003 the Straubing Prison Authority rejected his application in accordance with section 70 § 2 of the Prison Act, arguing that granting it would have jeopardised security and order in the prison. The applicant applied for judicial review. The Prison Authority submitted to the court that, given the maximum-security regime of the prison and the significant number of inmates who had been involved with drugs, every object that was handed over to an inmate had to be thoroughly checked for hidden drugs or facilities that could enable a breakout. The electronic facilities which the applicant applied for had multiple cavities and owing to their high complexity could have been modified to carry illegal or impermissible information. Moreover, every audio CD would have had to be checked for possible hidden electronic data. Therefore, maintaining security and order in the prison would have necessitated time-consuming checks by specially qualified prison staff. Having regard to the possibility of multiple similar requests, allowing prisoners to have the devices in question would have necessitated substantial additional work and would possibly have required a raise in the number of staff. Therefore, the necessary security measures to be taken would have been disproportionate to the applicant’s interests at stake. The applicant submitted that the possession of a CD player and a play station would not have posed a real threat to security. To this end he referred at large to the decisions of the Celle Court of Appeal of 25 January 1994 and the Dresden Court of Appeal of 16 September 1999, which found that a play station did not pose a relevant threat to prison order. The applicant also referred to the Federal Constitutional Court’s decision of 9 November 2001. He relied, in particular, on the principle of equality. None of these decisions directly concerned the applicant (see relevant domestic law and practice below). On 8 January 2003 the Regensburg Regional Court upheld the Prison Authority’s decision, endorsing the arguments given by it and noting that the case-law cited by the applicant did not provide for a decision in his favour. On 11 February 2004 the Nuremberg Court of Appeal rejected the applicant’s appeal on points of law (Rechtsbeschwerde) as inadmissible. It found that neither the development of law nor the necessity of uniform case-law demanded the examination of its merits. The decisions of the Straubing Prison Authority and the Regensburg Regional Court were based on sufficient grounds, namely, the special circumstances of the prison concerned, and thereby complied with the law. On 29 April 2004 the Federal Constitutional Court (2 BvR 505/04) refused to examine his constitutional complaint without further reasons. Section 70 §§ 1 and 2 of the law on the execution of prison sentences and measures of rehabilitation and prevention involving deprivation of liberty – the Prison Act – provides: “(1) Every inmate is allowed to possess books or other objects to a reasonable extent for educational or leisure purposes. (2) This does not apply if the possession, the surrender or the use of the object would [...] 2. jeopardise [...] the security or order of the prison facility.” The Celle Court of Appeal in its decision of 25 January 1994 (1 Ws 324/93) and the Dresden Court of Appeal in its decision of 16 September 1999 (2 Ws 637/98) found that a play station did not pose a relevant threat to security and order of the prison and was therefore permitted according to section 70 § 1 of the Prison Act. These decisions did not deal with the security level of the prison facilities in question. The Federal Constitutional Court decided on 9 November 2001 (2 BvR 609/01) that the refusal to allow a prison inmate to have a play station did not infringe any of that person’s constitutional rights. The Prison Authority’s decision was, in particular, not contrary to the principle of equality. Referring to the above decisions of the Celle and Dresden Courts of Appeal it found that every request concerning electronic devices in prison had to be decided on its own merits according to the circumstances of the particular case and the conditions of the prison facility concerned.
| 0
|
train
|
001-4562
|
ENG
|
NLD
|
ADMISSIBILITY
| 1,999
|
J.C.B. v. THE NETHERLANDS
| 4
|
Inadmissible
|
Elisabeth Palm;Gaukur Jörundsson
|
The applicant is a Dutch national, born in 1952, and is currently detained in the Netherlands. He is represented by Ms T. Prakken, a lawyer practising in Amsterdam. On 22 December 1993, the Drugs Enforcement Agency (DEA) of the United States of America informed the Netherlands customs authorities that the ship named N.N. had left the harbour of Santa Marta (Colombia) for Amsterdam, where it would arrive on 2 January 1994. According to this information, this ship was transporting about fifteen kilograms of cocaine which had been bought by two Dutchmen, who had also recruited the ship’s crew. The two Dutchmen, possibly dressed as maintenance engineers, would take the cocaine from the ship in Amsterdam. The information, which the DEA classified as 99% certain, further contained a physical description of the two Dutchmen concerned. On the basis of this information, the Dutch customs authorities, in consultation with the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst - “FIOD”), decided that the Customs Office of Amsterdam (Douane Post Amsterdam Surveillance), on the basis of its general powers of control under the General Customs and Excise Act (Algemene Wet inzake Douane en Accijnzen), would on 2 January 1994 place the ship N.N. under observation and would carry out an intensified control of the people leaving the ship and their possible vehicles. On 2 January 1994, the ship N.N. was moored in the Amsterdam harbour area. Observation of that area revealed that around 8 p.m. a Peugeot personal car with two passengers arrived. These two persons, who were not carrying any luggage, shortly visited the ship and, still without luggage, left the ship and drove away in the Peugeot, which was then followed by customs officers in two cars. When, at some point, a stop signal was given from one of the two cars which were following the Peugeot, the latter sped away. Shortly after, the two passengers of the Peugeot car abandoned the vehicle and were pursued on foot by four customs officers. One of the two persons got away and the other one, the applicant, was involved in a shoot-out with the customs officers. In the course of the shooting, one the customs officers, Mr H., was fatally injured. The applicant was slightly injured. On his arrest, the applicant was found to be wearing two jackets, containing in total about 10 kilograms of cocaine. The person who had escaped had left behind two jackets, which contained a similar quantity of cocaine. By summons of 30 March 1994, the applicant was ordered to appear on 13 April 1994 before the Regional Court (Arrondissementsrechtbank) of Amsterdam on drug and manslaughter charges. On 13 April 1994, the Regional Court rejected a request by the defence for a reconstruction of the shooting and granted their request an adjournment, as a certain forensic report had only recently been made available to the defence. On 21 June 1994, the Regional Court ordered that evidence be taken by the investigating judge (rechter-commissaris) from the experts mentioned in a letter dated 9 June 1994 from the defence. It adjourned its further examination for a maximum period of three months and referred the case to the investigating judge. On 1 September 1994, the Regional Court heard the applicant and considered a request by the defence for another adjournment in order to obtain further relevant forensic and other information. Having deliberated, the court partially granted the request by the defence and, consequently, adjourned its examination for a further three month period and referred the case to the investigating judge. It requested the latter to have the bullet tips R300 and R301 examined for deformations, to take evidence from the three persons who had seen the bullet tips fall from the clothes of Mr H., and to do whatever he considered useful and necessary in the interest of the examination of the applicant’s case. On 25 September 1994, the Regional Court resumed its examination and, following a request by the prosecution, adjourned its examination until 15 December 1994, when it heard the applicant and the parties’ final pleas. In its judgment of 28 December 1994, the Regional Court convicted the applicant of manslaughter and narcotics offences and sentenced him to twenty years’ imprisonment. As regards the charge of manslaughter, the Regional Court did not find it established that the applicant had acted in self-defence. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. On 8 May 1995, the Court of Appeal took oral evidence from the applicant, the customs officers E.B., F.d.B. and G.d.R. involved in the pursuit and shooting of 2 January 1994, the experts R.B. and H.M. of the Netherlands Forensic Laboratory concerning the forensic examination of the clothes of H. and the weapons and ammunition used in the shooting, and from the officers R.H., A.P. and J.P. of the forensic police (technische recherche) involved in the initial technical investigation. After the hearing of these persons, the defence requested a further forensic examination in Germany, the necessary technical equipment only being available there, in order to examine whether the lead-free ammunition used had been in contact with a human body and the clothes, and a further examination of the traces of the ammunition. The Court of Appeal rejected this request, holding: <Translation> “… the necessity <of the defence request> has not been established. In this respect the court has taken into consideration that the Forensic Laboratory at Rijswijk has extensively examined the clothes and other items, as appears from the report of 25 March 1994, in which it is stated, inter alia, that all micro-chemical test reactions for lead and copper at the bullet entry perforations have been positive. It further appears from the statement of the expert R.B. that such an examination can no longer be regarded as useful. The Court further finds not a single (factual) point of departure in the present case-file or in the trial proceedings so far conducted which might support the accused’s contentions that, firstly, the victim H. would have been hit by a lead-free bullet from a weapon of one of his colleagues and, secondly, that a lead-content bullet has ended up in an improper way between the victim’s clothes where it was <subsequently> found by staff of the Forensic Laboratory.” On 6 June 1995, the prosecution informed the Court of Appeal that the co-accused C. had been extradited from Spain to the Netherlands on 23 May 1995. The defence did not wish to react to this information. After having heard the parties’ final pleadings, the Court of Appeal closed its examination. In its judgment of 19 June 1995, the Court of Appeal quashed the judgment of 28 December 1994, convicted the applicant of manslaughter and of having acted contrary to the prohibition under Article 2 of the Opium Act (Opiumwet), and sentenced him to twenty years’ imprisonment. The Court of Appeal rejected the argument by the defence that the principle of proper intentions (beginsel van zuiver oogmerk) had been violated by the customs officers and that, on this basis, the prosecution should be declared inadmissible. The defence argued that the customs officers had used their powers for another purpose than that for which they are intended by following the Peugeot car, whereas the two passengers of this car had a different modus operandi from that predicted by the DEA. According to the defence, there had thus not been a reasonable suspicion of guilt within the meaning of Article 27 of the Code of Criminal Procedure (Wetboek van Strafvordering). The pursuit at issue was only carried out in order to see whether or not the applicant and the other person had taken the cocaine from the ship. After having considered the evidence before it, the Court of Appeal concluded that the customs officers involved in the events at issue had acted in accordance with, and had not exceeded, their powers under the relevant statutes, i.e. the General Customs and Excise Act and the Opium Act. The defence had further argued that the applicant’s right to a fair trial within the meaning of Article 6 of the Convention had been breached in that the Court of Appeal had failed to respect the principle of equality of arms when it refused A. to order a counter-expertise in Germany in order to verify whether only lead-content bullets had been fired at H.; B. to take evidence from the persons who, in the V. hospital, had handled the clothes of H.; C. to take further oral evidence from the customs officers E.B., F.d.B. and G.d.R. after their testimony of 8 May 1995; and D. to order a reconstruction of the events at issue. On these points, the Court of Appeal held, inter alia: <Translation> “In the course of the judicial investigation the accused has alleged that the police has committed fraud in its investigation and/or has manipulated the investigation by putting, after the shooting, one or more bullets shot by the accused, and which, in contrast to the bullets shot by the custom officers, contained lead, between the victim’s clothes and/or in the body bag in which his body was placed and transported to the Forensic Medical Laboratory and/or by smearing lead on the victim’s clothes on those places where that clothing was perforated by one or more bullet entries. The above contention has been repeated by the accused in his pleadings of 6 June 1995. Taking this into account, the accused’s requests, as set out under A-D, appear to be based on obtaining a further investigation into the correctness of this contention. In his pleadings counsel has taken the position that it cannot be considered excluded that - what he calls - the fatal shot at the victim H. has been fired by one of his colleagues. Taking this into account, the request by counsel appears to be based on obtaining a further investigation into the correctness of that contention … The court considers the above requests as follows: The expert R.B. of the Forensic Laboratory of Rijswijk has carried out a so-called shot-remains investigation of the coat and jeans of H., the results being given in the report of 25 March 1994, and a further investigation into soiling, spotted on the front side of the left sleeve of the coat, the results of which are stated in the additional report of 8 July 1994 (file II). An expert-witness heard during the trial on appeal, the aforementioned R.B., has stated … that the shot-remains investigation … standard is aimed at searching for (traces of) lead-containing ammunition, that the clothes (coat and jeans) have not been tested for lead-free ammunition, that such tests can still be carried out, but that it has appeared during the tests already carried out that around the places in the clothes, where it concerned a bullet entry (by which the court understands the damage caused by shots at the clothing, in respect of which the conclusion in the report is probable bullet entry damage), so many traces of lead, characteristic for lead-containing ammunition, were present that these traces, if there would be traces of lead-free ammunition, would mask the latter traces, and further that when one rubs a lead object against another object, thus leaving behind lead traces, these would be friction traces (veegsporen), but the traces of lead found on the clothes of H. were not friction traces. Further taking into consideration that the aforementioned R.B. has stated to the investigating judge … that the lead-free ammunition of the type Action III used by customs officials “does not really leave that many traces”, the court is of the opinion that in all reasonability it is not to be expected that by a (yet to be ordered) investigation of <the> coat and/or jeans of H. for possible traces of lead-free ammunition, also if this investigation is to be entrusted to the Federal Forensic Institute (Bundes Kriminaltechnisches Institut) in Wiesbaden <Germany>, no facts or circumstances will appear, which (could) entail an indication that shots with one or more lead-free projectiles have been fired at the victim H. Consequently, the court finds that the necessity of the investigation to be carried out by the <German> Federal Forensic Institute, requested by the suspect, has not been established; so that it will reject this request, in which <decision> the court further considers on the above grounds that such an investigation would not serve a useful purpose; so that it cannot be said that by rejecting this request the suspect’s right to counter-expertise is violated. … .” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), complaining inter alia that the Court of Appeal had rejected his argument that the customs officers involved in the events of 2 January 1994 had exceeded their powers of investigation and that the Court of Appeal had failed to order a further examination of the clothes of the victim in Germany in order to verify whether or not lead-free bullets had been fired at him. By judgment of 13 May 1997, the Supreme Court rejected the applicant’s appeal in cassation. Insofar as the applicant argued that the customs officers had exceeded their powers under the General Customs Act for the purpose of investigating acts contrary to the Opium Act, the Supreme Court held that the existence of “a reasonable suspicion” that acts contrary to the Opium Act are committed does not constitute a bar to the exercise by customs officers of their powers of control under the General Customs Act provided that the exercise of the latter powers respects the guarantees to which an accused is entitled. The Supreme Court concluded that the Court of Appeal had correctly rejected this argument. As to the applicant’s complaint that the Court of Appeal had rejected a request for a further examination of the victim’s clothes, the Supreme Court held that this complaint could not lead to cassation and that this finding, in view of Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), required no further reasons as the complaint did not prompt a determination of legal issues in the interests of legal unity and legal development.
| 0
|
train
|
001-102809
|
ENG
|
POL
|
ADMISSIBILITY
| 2,010
|
SZUBSKI v. POLAND
| 4
|
Inadmissible
|
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
|
The applicant, Mr Arkadiusz Szubski, is a Polish citizen who was born in 1978 and is currently detained in Wejherowo Remand Centre. He was represented before the Court by Ms G. Koczorowska, a lawyer practising in Szczecin. On an unspecified date in 2000 the applicant was committed to Poznań Remand Centre to serve a prison sentence. It appears that he remained there until late 2002 when he was transferred to Nowogard Prison. On 25 November 2003 he was once again detained in Poznań Remand Centre. On a further, unspecified date the applicant was transferred to Goleniów Prison and later to prisons in Stargard Szczeciński, Czarne and eventually to Wejherowo Remand Centre where he currently remains. The applicant submitted that all prisons and remand centres in which he had been detained were overcrowded. He submitted, by way of an example, that in Poznań Remand Centre he had been placed together with thirteen other inmates in a prison cell measuring approximately 30 m2. He pointed out that the Remand Centre’s sanitary facilities had been old and rusty and that the walls of his cell had been covered with mould. In Nowogard Prison the applicant was detained together with five other detainees in a cell of 8.5 m2. The sanitary conditions in Nowogard Prison were comparable to those in Poznań Remand Centre. In Goleniów Prison the applicant was detained together with a paraplegic inmate and he submitted that he had been permanently required to take care of him, help him to wash himself and wash his clothes as well as to clean the cell, although these tasks were normally incumbent on the prison authorities. The Government acknowledged that in Poznań Remand Centre, in Goleniów Prison and in Nowogard Prison the applicant might have been temporarily placed in cells which measured less than 3 m2 per prisoner. They further pointed out that the cells in which the applicant had been detained were disinfected on a regular basis. Moreover, the applicant had been provided with adequate personal hygiene products and could take a bath once a week. With regard to the issue of care of the paraplegic fellow inmate, the Government explained that the applicant had never been required to take care of the detainee in question and that he had done so of his own accord, along with other co-detainees placed in the same cell. They further stated that the paraplegic detainee had been receiving adequate assistance from the prison medical staff. More recently, the Government also submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission. On 25 March and 15 April 2005 the applicant filed complaints with the penitentiary authorities about the conditions of his detention. Both complaints were dismissed as unfounded. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. (See Siedlecki and 9 other applications v. Poland, no. 5246/03).
| 0
|
train
|
001-107572
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,011
|
TERLETSKAYA v. UKRAINE
| 4
|
Inadmissible
|
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
|
The applicant, Ms Olga Sergeyevna Terletskaya, is a Ukrainian national who was born in 1965 and lives in Nova Kakhovka. The Ukrainian Government (“the Government”) were represented by their former Agent, Mr Y. Zaytsev, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked as an assistant in a shop belonging to Mr. F. On 2 October 2003 a tax police squad visited Mr F.’s shop in order to carry out an unscheduled inspection due to Mr F.’s failure to submit tax returns. The inspection was not conducted, as Mr F., his relatives and his employees, including the applicant, prevented the officers from accessing the store’s tax records. It led to a fracas. As was later established by the investigation, at some point Mr F. switched off the light and the applicant screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. Mr F. and the applicant tried to prevent K. from leaving. Mr F. jumped on the hood of the car, then broke a side window and tried to pull officer K. out of the car, while the applicant blocked the rear of the car and jumped on it when the car tried to move. Tax officer L. tried to pull the applicant away from the car. Later the same day, the applicant lodged a complaint with the Nova Kakhovka police department against officer K. for punching her in her face. Again on the same day, the members of the tax police squad that had conducted the inspection gave statements to the police. At 10.20 p.m. the applicant was examined by a doctor, who found a bruise on her right arm. On 3 October 2003 the applicant lodged a complaint against tax police officers K. and L. with the Nova Kakhovka Local State Tax Administration. She complained that officer K. had beaten her and that officer L. had “applied brutal physical force” to her. On the same date the applicant was questioned and underwent a medical examination. The examination revealed the following injuries on her: one bruise of 2 x 1 cm on the inner side of the right forearm; one bruise of 6 x 4 cm just above the left buttock; and one bruise of 6 x 4 cm on the outer surface of the right thigh. Again on the same date, the tax inspectorate transferred the applicant’s complaint to the Nova Kakhovka Town Prosecutor’s Office (“the NKPO”), which started an investigation. On 6 October 2003 the Kherson Regional State Tax Administration conducted an internal query and concluded that the tax police had acted lawfully in conducting the tax inspection of Mr F.’s shop. On 15 October 2003 the applicant underwent a forensic medical examination ordered by the investigator. The forensic expert concluded that the applicant’s injuries certified by the medical examination of 3 October 2003 could have been caused by blunt hard objects, including by jumping on the car and grasping its metal parts and by having been pulled off the car by officer L. On several occasions the investigation questioned the individuals involved in the scuffle and some by-passers who had witnessed the beginning of the scuffle. On 27 October 2003 the NKPO refused to institute criminal proceedings against officers K. and L. The investigation established that on 2 October 2003 a squad of six officers had arrived at Mr F’s shop in order to conduct a tax inspection. Mr F. had refused to give them access to financial documentation. The squad had called their supervisor, Mr K., who had arrived at the shop with a lawyer to draft a report recording that it had been impossible to conduct the inspection. At that time, the applicant had arrived at the shop to start her shift as an assistant. When the members of the squad had tried to read out the document, Mr F. had switched off the light, claiming that the shop’s opening hours were over, and had started pushing the squad’s officers out of the shop. When they were out in front of the shop, Mr F. had temporarily switched off the light in front of the shop and the applicant had then started shouting that Mr K. had punched her in her face. Following that, Mr F. and his relatives and other shop assistants that had been present had blocked K.’s car, preventing it from leaving. The applicant had been jumping on the back of the car. Meanwhile, Mr F. had jumped on the hood of the car and, kicking the wind shield, had broken it. Mr F. had then broken one of the car’s side windows and, trying to pull Mr K. out of the car, had cut his hand on the broken glass. At the same time, officer L. had tried to pull the applicant away from the car but she had resisted. The investigator further noted the results of the forensic medical examination of the applicant and its conclusions that the applicant could have caused the minor bodily harm established herself by jumping on the car or that her injuries could have been caused by officer L. when he had tried to pull her away from it. The investigator also noted that the applicant had not had any injuries on her face. As it could not be established that the bodily harm ascertained had been caused to the applicant by the tax police officers, the investigator refused to institute criminal proceedings against officers K. and L. for a lack of corpus delicti. On 28 November 2003 the Kherson Regional Prosecutor’s Office quashed the decision of 27 October 2003 and instructed the NKPO to conduct additional investigation on the grounds that officers K. and L. had not been questioned and that the decision of 27 October 2003 had mistakenly been taken within the criminal proceedings against Mr F. and not in connection with the preliminary examination of the applicant’s complaint. On 4 December 2003 officers K. and L. were questioned again. On 5 December 2003 the NKPO refused to institute criminal proceedings. On 8 December 2003 the applicant lodged a private prosecution with the Nova Kakhovka Town Court. On 15 December 2003 the court left the complaint without consideration for failure to comply with procedural formalities. On 30 April 2004 the Nova Kakhovka Town Court quashed the NKPO’s decision of 5 December 2003 and returned the case to the NKPO for further investigation. It noted that the decision of 5 December 2003 had mistakenly been taken within the criminal proceedings against Mr F. and not in connection with the preliminary examination of the applicant’s complaint and that Mr F. and Ms R. had not been questioned as witnesses. In June 2004 Mr F. and Ms R. were questioned. On 7 June 2004 the NKPO refused to institute criminal proceedings. It was noted that there was no objective proof that officer K. had punched the applicant in her face at all, that the applicant’s other injuries could have been caused by her jumping on the car and that it could not be established beyond reasonable doubt that officer L. had caused any of the minor injuries found on the applicant. On 27 July 2004 the Nova Kakhovka Town Court rejected the applicant’s subsequent appeal against the decision of 7 June 2004. On 16 November 2004 the Kherson Regional Court of Appeal upheld the decision of the first-instance court. On 19 April 2005 the Supreme Court of Ukraine upheld the decisions of the lower courts. The applicant lodged two administrative complaints against the Prosecutor General’s Office for its alleged failure to act on her complaints. On 17 February and 31 August 2005 the Pechersky Court found that the Prosecutor General’s Office had failed to consider criminal complaints which the applicant had brought against the Kherson Regional Prosecutor. The court ordered the Prosecutor General’s Office to consider the applicant’s complaints and to take reasoned decisions on them. The applicant maintained that the court decisions of 17 February and 31 August 2005 have remained unenforced.
| 0
|
train
|
001-90238
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,008
|
PIRKMAJER v. SLOVENIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
|
The applicant, Mr Edo Pirkmajer, is a Slovenian national, who was born in 1932 and lives in Ljubljana. He was represented before the Court by Mr D. Demšar, a lawyer practising in Ljubljana. The applicant’s late father was a member of the Regional Council (Pokrajinski sosvet) of the then Ljubljana Province during the Second World War, appointed by the Italian government during its occupation of Slovenia. In 1944 the applicant’s father left Slovenia, but his family stayed there. From March 1944 he was based in Switzerland. On 4 July 1945 the Court of National Honour (Sodišče slovenske narodne časti – “the CNH”) of the People’s Republic of Slovenia (Ljudska republika Slovenija) sentenced the applicant’s father in absentia on the basis of the Act on the Punishment for Crimes and Offences against Slovenian National Honour (Zakon o kaznovanju zločinov in prestopkov zoper slovensko narodno čast, enacted on 5 June 1945, Official Gazette of the Slovenian National Liberation Council and the National Government of Slovenia no. 7/45 – “the ASNH”) to “loss of national honour for ten years, to light forced labour for five years and to the confiscation of 75% of all of his property” on account of his “intentional political cooperation with the fascist occupier” and the corresponding “prejudice to the good reputation and honour of the Slovenian nation and its resistance”. On 4 January 1975 the applicant’s father died. On 25 June 1991 Slovenia became independent. On 23 December 1991 the Constitution of the Republic of Slovenia (“the Constitution”) entered into force. On 28 June 1994 the Convention and on 1 September 1994 Protocol No. 7 to the Convention entered into force in respect of Slovenia. On 27 December 1996, relying on section 559 of the Criminal Procedure Act, the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court (Vrhovno sodišče) against the CNH’s judgment of 4 July 1945. The applicant requested that the judgment be quashed and the case be remitted to the first-instance court for re-examination owing to the violation of the applicant’s father’s defence rights. On 5 December 2000 the applicant amended his request, arguing that his father had not acted against the interests of the nation. He attached copies of two documents which he claimed that his father would have submitted in his defence had he had an opportunity to attend the trial. The Supreme Court later joined the proceedings in the applicant’s case to the proceedings instituted by T.B. and S.B., successors of J.B., who had also been sentenced in the CNH’s judgment of 4 July 1945. On 25 January 2001 the Supreme Court dismissed the applicant’s request and partly upheld T.B.’s and S.B’s request, with effect also for the applicant. By virtue of its decision, the Supreme Court quashed the penalty of confiscation of 75% of all of the applicant’s father’s property, owing to the lack of reasoning on that point. As to the applicant’s fresh submissions of 5 December 2000, the Supreme Court found that they had been lodged out of time. As to the complaint concerning the trial in absentia, the Supreme Court held that it was not competent to deal with questions of fact and as a result could not consider the question whether the applicant’s father had in fact been a fugitive. It added that the trial in absentia of his father would in any event have also been justified on the other grounds referred to in the ASNH, namely that he had been “unavailable”. Referring to the Constitutional Court’s (Ustavno sodišče) decision of 30 September 1998 (see “Relevant domestic law” below), the Supreme Court furthermore found that the ASNH did not have an unlawful retroactive effect. In the applicant’s father’s case, his conviction was based on sufficiently established facts, namely his membership of the Regional Council and certain specific acts of political collaboration with the occupier. The relevant provision of the ASNH, which represented the basis for his conviction, was therefore not a lex incerta and had not been applied arbitrarily. On 26 June 2001 the applicant lodged a constitutional appeal with the Constitutional Court. On 18 March 2003 the Constitutional Court found that it could only deal with the alleged violations relating to the Supreme Court’s judgment and that it had no jurisdiction to consider the complaints concerning the trial in 1945 since it had taken place before the Constitution had entered into force. As to the issue of lex certa, it referred to its previous decisions providing criteria for assessing laws enacted prior to the entry into force of the Constitution (see “Relevant domestic law” below). It found that the Supreme Court, applying the above-mentioned criteria, had sufficiently and convincingly explained its decision. It concluded that the applicant’s complaints were manifestly ill-founded. On 24 March 2003 the Constitutional Court’s decision was served on the applicant. On 1 April 1994 the Constitutional Court (U-I-6/93) decided that the courts in Slovenia should not rely on the provisions of the Decree on Military Tribunals of 24 May 1944, which had established the jurisdiction of military courts at the material time, if they had been used, inter alia, to incriminate persons purely on the ground of their status and had not had regard to the particular acts of the accused. In the same decision the Constitutional Court requested Parliament to ensure that extraordinary remedies would be available in order to annul any unjust decisions delivered on the basis of legislation passed by the wartime and post-war revolutionary government. On 19 September 1994 the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94) was passed. It came into force on 1 January 1995. Section 559 of the Criminal Procedure Act provides for the possibility to lodge a request for the protection of legality against decisions which had become final before the date of its entry into force. It states, in so far as relevant: “... the convicted person and persons referred to in subsection 2 of section 367 of the present Act [among others also children of convicted persons] shall be entitled, within two years of the entry into force of the present Act, to lodge a request for the protection of legality against a judicial decision which became final before the entry into force of the present Act and against proceedings conducted before such final and binding decision was adopted.” Section 420 of the Criminal Procedure Act lays down the conditions under which a request for the protection of legality can be lodged: “(1) A request for the protection of legality against a final judicial decision and the judicial proceedings which preceded that decision may be submitted in the following cases: 1) on the grounds of a violation of criminal law; 2) on the grounds of a fundamental violation of the rules of criminal procedure referred to in the first subsection of section 371 of the present Act [listing such procedural violations]; 3) on the grounds of other violations of the rules of criminal procedure if such violations affected the lawfulness of a judicial decision. (2) A request for the protection of legality may not be lodged on the grounds of an erroneous or insufficient establishment of facts, or against a decision of the Supreme Court ...” Furthermore, section 425 of the Criminal Procedure Act provides: “The Supreme Court shall by a judgment dismiss a request for the protection of legality as unfounded, if it establishes that the violation of the law alleged by the requesting party has not been committed or that the request for the protection of legality has been lodged on the grounds of an erroneous or insufficient establishment of facts.” Lastly, section 426 provides for the various decisions which may be adopted by the Supreme Court in well-founded cases: “(1) If the Supreme Court finds that a request for the protection of legality is well-founded it shall pass a judgment by which, depending on the nature of the violation, it shall: modify a final and binding decision; or annul in whole or in part the decision of both the court of first instance and the higher court or the decision of the higher court only, and remit the case to the court of first instance or the higher court for a fresh decision or re-examination; or it shall confine itself to establishing a breach of the law. ...” On 30 September 1998 the Constitutional Court, in decision no. U-I-248/96, considered the provisions of the ASNH. It found: “[t]he provisions of the Act on the Punishment for Crimes and Offences against Slovenian National Honour ... were in contradiction with the general principles of law recognised at the material time by civilised nations, in so far as they represented, because of their uncertainty, a basis for arbitrary use of the [A]ct. In such a case ... their use in the proceedings would be in contradiction with the Constitution.”
| 0
|
train
|
001-104945
|
ENG
|
ITA
|
CHAMBER
| 2,011
|
CASE OF MAGGIO AND OTHERS v. ITALY
| 3
|
Remainder inadmissible;Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - award
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
|
6. The applicants were born in 1938, 1942, 1939, 1942 and 1940 respectively, and live in Italy. 7. Mr Maggio worked in Switzerland from 1980 to 1992. 8. On 25 June 1997 Mr Maggio requested the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, to re-examine his old-age pension and to liquidate it on the basis of the real remuneration received (“retribuzione effettiva”) during his years of employment in Switzerland, in accordance with the 1962 Italo-Swiss Convention. 9. On an unspecified date the INPS rejected his request, since the calculation had to be based on the remuneration received in Switzerland and then be re-adjusted on the basis of the tables supplied in Circular no. 324 of 4 January 1978. 10. Mr Maggio instituted proceedings before the Lecce Tribunal, claiming that the payment of old-age pensions had to be calculated on the basis of the real remuneration received (in the last five years of employment) and of the contributions paid in part in Switzerland and in part in Italy. 11. By a judgment filed in the registry on 8 May 2002, his claim was rejected. 12. Mr Maggio appealed to the Lecce Court of Appeal which, by a judgment filed in the registry on 30 October 2003, rejected his claim. It took into consideration a technical expert report in relation to Article 23 of the Italo-Swiss Convention (see Relevant Domestic Law below), which provided for the transfer of contributions paid in Switzerland to the Italian insurance scheme for use in the calculation of old-age pensions, and guaranteed the benefits of Italian legislation. Consequently, it held that the pension calculation was to be made on the basis of Italian criteria, even though they were less favourable than the Swiss ones. Indeed, Italian law (decree of 27 April 1968 no. 488) provided for a calculation based on higher contributory rates than those in Switzerland, thus providing a lower pension than that expected by Mr Maggio. 13. By a judgment of 11 December 2008 filed in the registry on 13 February 2009, the Court of Cassation dismissed Mr Maggio’s claim, after rejecting his request for a preliminary reference to the ECJ. It held that the criteria used by the Court of Appeal were eventually acknowledged in Article 1, paragraph 777, of Law no. 296 of 27 December 2006 (“Law 296/2006”), which had retroactive effect. This Law had not been found to be unconstitutional by the Constitutional Court in a judgment of 23 May 2008 (see Relevant Domestic Law below). 14. In 2005 Mr Gabrieli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between November 1963 and June 2001. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Mr Gabrieli instituted judicial proceedings. 15. By a judgment of the Brescia Tribunal (Labour Section) of 2 October 2006, Mr Gabrieli’s claim was upheld on the basis of the relevant Court of Cassation case-law at the time (see Relevant Domestic Law below). 16. The INPS appealed. 17. By a judgment of 7 August 2007, the Brescia Court of Appeal reversed the first-instance judgment in view of the entry into force of Law 296/2006. Mr Gabrieli Thus, the judgment became final on 7 August 2008. 18. Mr Faccioli was entitled to an old-age pension from 1 April 1999. 19. In 2006 Mr Faccioli requested the INPS to establish his pension on the basis of the contributions paid in Switzerland for work he had performed there between 1 December 1958 and 31 March 1999. As a basis for the calculation of his pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Mr Faccioli instituted judicial proceedings. 20. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Mr Faccioli’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Mr Faccioli did not appeal, deeming it to be futile in view of the relevant case-law at the time. 21. Ms Forgioli was entitled to an old-age pension from 1 April 1995 and to a survivor’s pension, as a widow, her husband having become a pensioner on 1 April 1997, from the date of her husband’s death. 22. In 2006 Ms Forgioli requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between 1 August 1959 and 30 November 1994, and those paid by her husband. As a basis for the calculation of the relevant pensions, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Ms Forgioli instituted judicial proceedings. 23. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Forgioli’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Forgioli did not appeal, deeming it to be futile in view of the relevant case-law at the time. 24. Ms Zanardini was entitled to an old-age pension from 1 August 1997. 25. In 2006 Ms Zanardini requested the INPS to establish her pension on the basis of the contributions paid in Switzerland for work she had performed there between March 1960 and July 1997. As a basis for the calculation of her pension, the INPS employed a theoretical remuneration (“retribuzione teorica”) instead of the real remuneration (“retribuzione effettiva”). The former resulted in a re-adjustment on the basis of the existing ratio between the contributions applied in Switzerland (8%) and in Italy (32.7%), which led to a reduction of 25% in the basic amount used to calculate the pension and therefore a reduction in the pension itself. Consequently, in 2006 Ms Zanardini instituted judicial proceedings. 26. By a judgment of the Brescia Tribunal (Labour Section) of 20 October 2008, Ms Zanardini’s claims were rejected in view of Law 296/2006 and the subsequent Constitutional Court judgment. Ms Zanardini did not appeal, deeming it to be futile in view of the relevant case-law at the time. 27. Article 23 of the transitional provisions of the Italo-Swiss Convention on Social Security, of 14 December 1962, provides, in so far as relevant, as follows (unofficial translation): “1. In so far as Switzerland is concerned, performance shall be in accordance with the provisions of this Convention, even in cases where the insured event occurred before the entry into force of the Convention. Old-age and survivors’ ordinary annuities will, however, only apply in accordance with these provisions if the insured event took place before 21 December 1959, and if the contributions were not or will not be transferred or reimbursed in accordance with the Convention of 17 October 1951, or paragraph 5 of this Article. (...) 2. In so far as Italy is concerned, performance shall be in accordance with the provisions of this Convention where the insured event occurred on or after the date of its entry into force. Nevertheless, when the insured event occurred before that date, performance shall take place in accordance with the present Convention from the date of its entry into force, if it would not have been possible to grant such a pension due to the insufficiency of the insurance periods, and only if the contributions have not been reimbursed by the Italian social insurance scheme. 3. With the exception of the above provisions, periods of insurance, of contributions and of residence occurring before the entry into force of this Convention will be taken into consideration. 5. For a period of five years from the entry into force of this Convention, upon the attainment of pensionable age under Italian law, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors insurance schemes be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy or in a third country prior to the end of the year in which their pensionable age was reached. Article 5 (4) and (5) of the Convention of 17 October 1951 will apply to the use of such transferred contributions, eventual reimbursements and the effects of such transfers.” 28. In so far as relevant, Article 5 of the Italo-Swiss Convention on Social Insurance of 17 October 1951 provides (unofficial translation): “...(4) Italian citizens not covered by the preceding sub-paragraph (*) or their survivors, may request contributions paid by them and their employers into the Swiss old-age and survivors’ insurance to be transferred to the Italian social welfare insurance scheme as indicated in Article 1 (*). The latter will use the said contributions to ensure that the insured person obtains the benefits derived from Italian law quoted in Article 1 (*) and any other dispositions issued by the Italian authorities. In the event that, under the relevant Italian legal provisions, the insured person cannot assert a right to a pension, the Italian social welfare services will reimburse, upon request, the transferred contributions. (5) Transfer of contributions as provided for in the above sub-paragraph may be requested: (a) if the Italian citizen has left Switzerland at least ten years before, (b) on the occurrence of the insured event. The Italian citizen whose contributions have been transferred to the Italian social insurance scheme cannot assert any right in respect of the Swiss old-age and survivors’ insurance on the basis of such contributions. Such a person, or his [or her] survivors, may expect an ordinary annuity from the Swiss old-age and survivors insurance scheme only ... [under] the conditions set out in the first paragraph (*).” 29. It is noted that the articles marked (*) were repealed by Article 26 (3) of the 1962 Convention, except for the purposes of the above cited Article 23 (5). 30. The transitional provision of Article 23 of the 1961 Convention became definitive by means of the additional agreement of 4 July 1969, whose Article 1 (1) and (3) reads: “On reaching pensionable age under Italian law, and where they have not already been in receipt of a pension, Italian citizens may request, in derogation of Article 7, that the contributions paid by them and their employers into the Swiss old-age and survivors’ insurance scheme be transferred to the Italian insurance scheme, on condition that they have left Switzerland for permanent settlement in Italy ...” “The Italian social welfare entities must use such contributions in favour of the insured or his or her heirs in such a way as to ensure the attainment of the advantages derived from Italian law, as cited in Article 1 of the Convention, in accordance with the specific arrangements issued by the Italian authorities. If no advantage can be attained on the basis of such arrangements, the Italian social welfare entities must reimburse the transferred contributions to the interested parties.” 31. The Court of Cassation’s judgment of 6 March 2004, and other analogous jurisprudence at the material time, established that, in the absence of specific legislation regulating the transfer of contributions, the method of calculation in determining workers’ pensions should be based on the real remuneration received by that person, including any work undertaken in Switzerland, irrespective of the fact that contributions paid in Switzerland and transferred to Italy had been calculated on the basis of much lower rates than those established under Italian legislation. 32. Article 1, paragraph 777, of Law 296/2006, which entered into force on 1 January 2007, provides (unofficial translation): “Article 5 (2) of Presidential Decree no. 488 of 27 April 1968 and subsequent modifications must be interpreted to the effect that, in the event of transfer of contributions paid to foreign welfare entities to the Italian obligatory general insurance scheme, as a consequence of international social security treaties and conventions, the pensionable remuneration relative to the employment period abroad is calculated by multiplying the amount of transferred contributions by a hundred and dividing the result by the contribution rates for the invalidity, old-age and survivors insurance scheme, as applicable during the relevant contributory period. More favourable pension treatment already liquidated before the entry into force of the current law is exempted.” 33. By a writ of 5 March 2007, the Court of Cassation questioned the legitimacy of Law 296/2006 and remitted the case to the Constitutional Court. The Constitutional Court gave judgment on 23 May 2008, holding, in sum, as follows. 34. Although interpretative, Law 296/2006 was innovative. There had been no conflicting case-law on the pension regime but a single well established interpretation, according to which the Italian worker could ask to transfer his or her contributions, paid in Switzerland, to the INPS, in order to obtain the advantages provided by Italian law on invalidity, old-age and survivors’ insurance, including that of remuneration-based pension calculations, on the basis of the wages earned in Switzerland, irrespective of the fact that the transferred contributions had been paid at a much lower Swiss rate. 35. The Constitutional Court noted that the laws defining pension remuneration were part of a welfare system which balanced available resources and the services supplied. A change in calculating pensions from the contributory criterion to the remuneration-based one (“retributivo”), was not to the detriment of the financial sustainability of the system. Thus, the changes brought about by the impugned Law sought to bring the relationship between pensionable remuneration and contributions in line with the system in force in Italy during the same period of time. The Law provided that remuneration received abroad (used as a basis for pension calculations) was to be adjusted by applying the same percentage ratios used for pension contributions paid in Italy during the same period. Thus, the norm made explicit what had been in the original interpretative provisions. Consequently, there had been no breach of the principle of legal certainty. Nor was the norm discriminatory since the acquired and more favourable rights of earlier pensioners were, by then, unassailable. Furthermore, the Law did not discriminate against people who had worked abroad, because it simply ensured an overall balance in the welfare system, and avoided the situation whereby persons who had made small contributions to a foreign pension scheme could receive the same pension as those who had paid the much higher Italian contributions. The contested Law did not provide for any ex post reductions, as it merely imposed an interpretation which could already have been inferred from the original provisions. Lastly, this system still allowed for a sufficient and satisfactory pension, adequate for the lifestyle of a worker. Accordingly, the claim of unconstitutionality of the said Law was manifestly ill-founded.
| 1
|
train
|
001-77871
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,006
|
KALAJZIC v. CROATIA
| 3
|
Inadmissible
|
Christos Rozakis
|
The applicant, Mr Davor Kalajžić, is a Croatian national who was born in 1950 and lives in Split. He was represented before the Court by Mr T. Vukičević, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. In March 1991 the applicant was dismissed from work. In May 1991 the applicant instituted civil proceedings challenging the decision on his dismissal. He sought reinstatement, compensation of salary and lost earnings. Following two remittals, on 26 November 1997 the Split Municipal Court (Općinski sud u Splitu) gave a partial judgment ordering the applicant’s reinstatement and awarding him compensation of salary. The judgment also stated that the compensation for lost earnings and the litigation costs were to be decided on later. On appeal by the employer, on 14 November 1998 the Split County Court (Županijski sud u Splitu) upheld the first instance judgment in part concerning the applicant’s reinstatement. It quashed and remitted in part the decision on compensation for salary. On 11 January 1999 the employer filed a request for revision on points of law (revizija) against that decision. On 11 September 2002 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed that request. The first instance court not having decided a part of his claim, on 18 November 2002 the applicant filed a constitutional complaint concerning the length of the proceedings. On 26 April 2004 the Split Municipal Court held a hearing. During the next hearing held on 1 April 2005 it adopted a judgment by default. On 27 April 2005 the defendant paid the applicant the sum ordered by the judgment. On 4 May 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) found that the applicant’s right to a determination of his civil claim within a reasonable time had been violated and awarded him 8,200 Croatian Kunas (HRK) as just satisfaction. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request
| 0
|
train
|
001-71742
|
ENG
|
UKR
|
CHAMBER
| 2,005
|
CASE OF OLEYNIK AND BAYBARZA v. UKRAINE
| 4
|
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - Government to pay outstanding judgment debts;Non-pecuniary damage - financial awards
| null |
4. Mr Vladimir Oleynik (the first applicant) and Mr Dmitriy Baybarza (the second applicant) were born in 1935 and 1941 respectively, and live in Zhovti Vody, the Dnipropetrovsk Region. 5. On 26 October 2000 the Zhovti Vody City Court awarded the first applicant UAH 7,929.74 against the Electron-Gaz Company (a State owned entity; hereafter “the Company”) in salary arrears. On 18 October 2000 the second applicant was awarded 7,040.03 against the Company. Both judgments became final and were sent to the Zhovti Vody City Bailiffs’ Service (hereafter “the Bailiffs”) for compulsory enforcement. 6. On 2 April 2002 the Zhovti Vody City Prosecutor informed the second applicant that the delay in the execution of numerous court judgments against the Company was due to the moratorium on the forced sale of the property of State-owned enterprises, which significantly limited the resources for refunding the Company’s salary arrears. 7. On 19 April 2002 the Department of Industry, Transportation and Communications of the Dnipropetrovsk Regional State Administration issued a letter, stating that improvement of the Company’s financial performance (including that of its salary payments) was a matter of concern for various State authorities. In particular, the State Property Fund was preparing the Company’s development plan which was to be presented at the next stockholders’ meeting. 8. On 7 March 2003 the Dnipropetrovsk Regional Commercial Court (hereafter “the Commercial Court”) instituted bankruptcy proceedings against the Company and issued an injunction barring any debt recovery. On 10 October 2003 the Commercial Court approved a rehabilitation proposal and appointed a trustee to rehabilitate the Company’s business. 9. The judgments given in the applicants’ favour remain unenforced. 10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).
| 1
|
train
|
001-72892
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,006
|
OSOIAN v. MOLDOVA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Lilian Osoian, is a Moldovan national who was born in 1973 and lives in Chişinău. On 12 November 2002 the applicant lodged an action against the Ministry of Internal Affairs (the Ministry) with the Centru District Court, seeking compensation for damage to his health during his service. On 11 February 2003 the Centru District Court ruled in favour of the applicant and ordered the Ministry to pay him 13,965 Moldovan lei (MDL) (the equivalent of 910.6 euros (EUR) as of 11 February 2003). The Ministry did not appeal and after fifteen days the judgment became final and enforceable. On 3 June 2003 the applicant complained about the non-enforcement of the judgment in his favour to a bailiff. On 17 June 2003 the latter informed the applicant, inter alia, that the enforcement warrant had been sent to the Ministry on 13 March 2003 and it could not be enforced due to lack of money. On 30 September 2003 the applicant brought a new action against the Ministry of Internal Affairs, seeking compensation for inflation for the period of non-enforcement. During the proceedings, on 5 December 2003, the Ministry complied with the judgment of 11 February 2003 and paid the applicant MDL 13,965. On 19 December 2003 the Centru District Court dismissed the applicant’s action. It found, inter alia, that since the judgment in his favour had been enforced, the State could not be made subject to an additional obligation to pay him compensation. He appealed against it. On 17 March 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal. He did not lodge an appeal on points of law with the Supreme Court of Justice. The relevant domestic law was set out in Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, § 12, 15 June 2004.
| 0
|
train
|
001-82953
|
ENG
|
UKR
|
CHAMBER
| 2,007
|
CASE OF LISNYY v. UKRAINE
| 4
|
Violation of P1-1
|
Peer Lorenzen
|
4. The applicant was born in 1936 and lives in Lviv. 5. In 1981 the applicant was convicted of speculating in gold and sentenced to a term of imprisonment. In 1992 his conviction was annulled as unlawful. Subsequently the applicant instituted civil proceedings, seeking various kinds of compensation for his unlawful conviction and punishment. 6. On 24 February 1998 the Khust Court (Хустський районний суд Закарпатської області) awarded the applicant 3,350.55 hryvnyas (UAH) against the Ministry of Finance (“the Ministry”; Міністерство фінансів України) in compensation for his loss of income while in detention. 7. This judgment became final and on 3 June 1998 the bailiffs instituted enforcement proceedings. They submitted the enforcement writ to the Ministry of Finance, which redirected it to the State Treasury (Державне Казначейство України). 8. On 18 November 2003 the enforcement writ was returned to the applicant unenforced. 9. On 13 May 1999 the Khust Court awarded the applicant UAH 7,281.70 against the Khust State Treasury Department (“the Khust Treasury”; Відділ Державного казначейства в Хустському районі Закарпатської області) in compensation for the gold confiscated from him following his conviction. This decision became final. 10. On 12 November 2002 the Khust Treasury informed the applicant that it could not make the payment without the command of the bailiffs. In connection with this, the Khust Treasury had transferred the applicant's request for enforcement and a copy of the judgment to the bailiffs and had requested the Khust Court to transfer the enforcement writ thereto. 11. On 5 March 2003 the Khust Court informed the applicant that it had never issued the enforcement writ as the applicant personally had never requested the court to do so. 12. The judgment of 13 May 1999 remains unenforced. 13. On 2 April 2002 the Lychakivsky District Court of Lviv awarded the applicant UAH 2,000 against the State Treasury in moral damages for a delay in the enforcement of the judgment of 24 February 1998. 14. This decision became final in October 2002 and on 9 December 2002 the enforcement proceedings were instituted. On several occasions the Treasury informed the applicant that the judgment award could not be paid on account of the lack of budgetary allocations. 15. On 26 January 2004 the Lviv Regional Court of Appeal (“the Regional Court”; Апеляційний суд Львівської області) gave the applicant, who sought to obtain a higher amount of compensation, leave to appeal against the judgment of 2 April 2002 out of time. 16. On 15 March 2004 the Regional Court, following the applicant's appeal, reviewed the facts of the case in their entirety and quashed the judgment of 2 April 2002. The court rejected the applicant's claims against the Treasury as lacking statutory basis under domestic law. On 25 September 2006 the Supreme Court rejected the applicant's request for leave to appeal in cassation. 17. The applicant made several unsuccessful attempts to institute civil proceedings against various authorities, seeking compensation for the delays in the enforcement of the judgments in his favour. 18. The relevant domestic law is summarised in the judgment of Volosyuk v. Ukraine (no. 60712/00, §§ 20-24, 29 June 2006).
| 0
|
train
|
001-59626
|
ENG
|
ITA
|
CHAMBER
| 2,001
|
CASE OF VITTORIO AND LUIGI MANCINI v. ITALY
| 1
|
Violation of Art. 5-1
|
Christos Rozakis
|
7. The applicants are Italian nationals who were born in 1959 and 1951 respectively and live in Rome. 8. On 10 and 19 July 1997 two armed robberies were committed in the Rome area. It emerges from a report prepared by the Rome police on 23 July 1997 that there was evidence that the stolen goods had been hidden in a warehouse belonging to the company owned by the applicants. The latter were also said to have been in telephone contact with persons suspected of the offences. 9. On 18 December 1997 the Rome public prosecutor applied for the applicants to be placed in pre-trial detention. In an order of 22 December 1997, the Rome investigating judge allowed that application. 10. On 23 December 1997 the applicants were arrested and taken to Rome Prison. On 24 December 1997 they appealed against the order of 22 December 1997 to the division of the Rome District Court responsible for reconsidering security measures (tribunale del riesame). 11. The hearing before the Rome District Court was held on 7 January 1998. In an order delivered the same day, filed with the registry on 10 January 1998, the court replaced the applicants’ pre-trial detention with the security measure of house arrest (arresti domiciliari). It considered, in particular, that it was reasonable to suspect that the applicants had committed the offences in issue and that it was to be feared that they might commit others of the same type. Taking the view, however, that there was no “tangible risk for the gathering of evidence” and having regard to the defendants’ clean police record, it concluded that a less restrictive measure, such as house arrest, was preferable. That measure required the applicants to stay in their home and leave only with the authorities’ prior authorisation. 12. The order of 7 January was served on the applicants on 10 January 1998. They should therefore have been immediately escorted from Rome Prison, where they were being held, to their home. However, no police officers were available to escort them and so their transfer was delayed until 13 January 1998.
| 1
|
train
|
001-80800
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,007
|
HOMANN v. GERMANY
| 4
|
Inadmissible
|
Peer Lorenzen
|
The applicant, Mr Jürgen-Peter Homann, is a German national who was born in 1945 and is currently detained in Diez. On 30 April 1985 the Koblenz Regional Court convicted the applicant of two counts of rape and sentenced him to twelve years’ imprisonment. Furthermore, the court ordered the applicant’s placement in preventive detention pursuant to section 66 of the Criminal Code (see ‘Relevant domestic law’, below). Since 25 August 1999 the applicant, having served his full prison sentence, has been remanded in preventive detention. In the course of proceedings for review of whether the further execution of the applicant’s placement in preventive detention should be suspended on probation, the Arnsberg Regional Court summoned the applicant to a hearing on 22 May 2002. By fax of 21 May 2002 the applicant lodged a motion with the Arnsberg Regional Court to revoke the designation of his court-appointed defence counsel. He argued that following the counsel’s visit in prison on that day, there was no longer a relationship of trust between him and his counsel. He informed the court that he would not appear at the hearing scheduled for 22 May 2002 as no proper defence had been set up. He further objected to the report submitted by expert K. on the risk of his being recidivist as the expert had not been able to consult the complete case-files. On 22 May 2002 the president of the Arnsberg Regional Court dismissed the applicant’s request to revoke the appointment of his counsel as illfounded. He argued that under section 143 of the Code of Criminal Procedure (CCP), it was possible to revoke the designation of an officially appointed defence counsel if the mutual trust between the defendant and the lawyer was seriously disturbed. However, the applicant failed to substantiate this since he had not given any reasons for his allegation that there was no longer a relationship of trust between him and his counsel. On 22 May 2002 the Arnsberg Regional Court refused to suspend the applicant’s placement in detention on probation following a hearing on the same day. At the hearing the applicant’s court-appointed defence counsel and the expert were present. As announced in his fax to the court, the applicant himself did not attend the hearing. Having regard to the report submitted by expert K., the Regional Court found that it could not be assumed that the applicant would not commit further offences if released from prison. It stated that the expert had convincingly argued that the applicant, as shown by his offence, was still dangerous for the public. Even though he had committed his last offence eighteen years ago, there were no signs that the applicant, who kept claiming to have been wrongfully convicted, was no longer likely to be recidivist. On 28 May 2002 the applicant received a copy of the decisions taken by the Arnsberg Regional Court and its president by post. The Regional Court informed him that the decisions had been formally served on his defence counsel. Other than the letter to his counsel served on the same day, the letter to the applicant did not contain instructions about his available legal remedies (Rechtsmittelbelehrung). By submissions dated 10 and 11 June 2002, which reached the Hamm Court of Appeal on 14 June 2002, the applicant lodged an appeal against the aforementioned decisions of the Arnsberg Regional Court and its president. On 26 September 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation as inadmissible. The court found that the applicant had not lodged his immediate appeal (sofortige Beschwerde) with the Regional Court as prescribed by section 306 § 1 CCP (see ‘Relevant domestic law’, below), but directly with the Court of Appeal. The Court of Appeal had not been obliged to forward the appeal to the Regional Court, as it had already been lodged out of time when received by the Court of Appeal. Pursuant to sections 311 § 2 and 35 § 2 CCP (see ‘Relevant domestic law’, below), the applicant had to lodge his immediate appeal within one week after the Regional Court’s decision, including instructions about the available legal remedies, had been served on his lawyer on 28 May 2002. The applicant had, however, failed to lodge his appeal until 4 June 2002 at the latest with the Arnsberg Regional Court. The Hamm Court of Appeal further dismissed the applicant’s appeal against the refusal of the president of the Regional Court to revoke the designation of his court-appointed defence counsel as ill-founded. Endorsing the reasons given by the Regional Court, it argued that the applicant failed to substantiate that there were circumstances warranting the conclusion that the relationship of trust between him and his courtappointed lawyer was considerably and irrevocably disturbed to an extent which rendered the conduct of a proper defence impossible. In particular, it had been objectively justified for the defence counsel to refuse to lodge motions aimed at challenging the applicant’s conviction in 1985. The lawfulness of this conviction was not at issue in the proceedings concerning the necessity of the applicant’s continued placement in preventive detention. On 13 October 2002 the applicant filed a remonstrance (Gegenvorstellung) against the decision of the Hamm Court of Appeal dated 26 September 2002 dismissing his immediate appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation. He complained that the Regional Court’s letter of 28 May 2002 to him had not contained instructions about the available legal remedies. He had not been in contact with his officially appointed counsel after 21 May 2002. He further argued that the Regional Court had been obliged to give him an opportunity to supplement the reasons why there was no longer a relationship of trust with his lawyer. On 29 October 2002 the Hamm Court of Appeal, interpreting the applicant’s remonstrance as a request for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand), dismissed this request. It found that the applicant had not substantiated that he had been prevented from observing the one-week time-limit for lodging an immediate appeal without fault of his own (section 44 CCP, see ‘Relevant domestic law’, below). Instructions about the available legal remedies were and had to be given solely to the applicant’s lawyer, on whom the Regional Court’s decision had been formally served (sections 35a and 145a § 3 CCP, see ‘Relevant domestic law’, below). There was no obligation under the Code of Criminal Procedure to enclose such instructions also in the letter sent to the applicant (section 145a § 3 CCP, see ‘Relevant domestic law’, below). In that letter, the Court of Appeal had informed the applicant of the contents of the Regional Court’s decision and of the fact that it had been served on his counsel. He should therefore have contacted his lawyer without undue delay in order to be informed about the further course of the proceedings or to mandate him to lodge an appeal. On 14 November 2002 the Hamm Court of Appeal rejected the applicant’s further remonstrance against its decision of 29 October 2002. On 8 April and 19 August 2003 the Hamm Court of Appeal dismissed the applicant’s further requests for reinstatement of the proceedings. On 6 May 2003, 16 October 2003 and 11 November 2003 the Hamm Court of Appeal rejected the applicant’s further remonstrances. On 10 December 2003 the applicant lodged a complaint with the Federal Constitutional Court against the aforementioned decisions taken by the Regional Court and the Court of Appeal. He argued, in particular, that the failure to grant him access to the Court of Appeal in order to complain about the refusal of the Arnsberg Regional Court to suspend his placement in preventive detention on probation had violated his right to a fair trial as guaranteed by the Basic Law. The Regional Court had notably failed to inform him about the available legal remedies against its decision of 22 May 2002. Moreover, his right to a fair hearing had been breached in that the Regional Court had not revoked the designation of his court-appointed counsel without giving him an opportunity further to substantiate why there was no longer a relationship of trust between him and his counsel. On 11 February 2004 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicant’s constitutional complaint. Decisions which are not taken in the presence of the person concerned shall be notified by service thereof (section 35 § 2 of the Code of Criminal Procedure – CCP). The court-appointed defence counsel is considered authorized to accept service of documents on behalf of the defendant (section 145a § 1 CCP). If a decision is served on counsel for the defence, the defendant shall be informed thereof; at the same time he shall be provided informally with a copy of the decision (section 145a § 3 CCP). Upon notification of a decision the appeal against which is subject to a time-limit, the person concerned shall be given instructions about the options for contesting the decision and the prescribed time-limits and forms (section 35a CCP). An appeal against a decision (Beschwerde) shall be lodged with the court which took the contested decision, either orally to be recorded by the court’s registry or in writing (section 306 § 1 CCP). An immediate appeal (sofortige Beschwerde) shall be lodged within one week; the time-limit shall start running upon notification (section 35 CCP) of the decision (section 311 § 2 CCP). Section 44 provides that if a person was prevented from observing a time-limit without fault of his own, he shall be granted reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand). Failure to observe the time-limit for lodging an appeal shall be considered as not due to his fault if the instructions pursuant to section 35a CCP have not been given. The sentencing court may, at the time of the offender’s conviction, order his preventive detention in addition to his prison sentence if the offender is sentenced for an intentional offence to at least two years’ imprisonment, has previously been convicted and detained (for certain periods fixed by law) and proved dangerous for the public (section 66 of the Criminal Code). The court dealing with the execution of sentences may review at any time whether the further execution of the placement of a convicted person in preventive detention should be suspended on probation. It is obliged to do so every two years (section 67e of the Criminal Code).
| 0
|
train
|
001-115767
|
ENG
|
POL
|
ADMISSIBILITY
| 2,012
|
NIKOLSKI v. POLAND
| 4
|
Inadmissible
|
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
|
1. The applicant, Mr Lech Nikolski, is a Polish national, who was born in 1955 and lives in Warszawa. He was represented before the Court by Mr M. Zakręt, a lawyer practising in Tychy. 3. Between 2001 and 2003 the applicant was the head of the Prime Minister’s political cabinet (Szef Gabinetu Politycznego Prezesa Rady Ministów). 4. In July 2002 a prominent film producer L. Rywin, in exchange for a bribe, offered to A.M. the editor of Poland’s largest newspaper -Gazeta Wyborcza- to arrange for a change in a draft law aimed at limiting the print media’s influence on radio and television. He claimed to be acting on behalf of what he called a “group in power” which wanted to remain anonymous. In December 2002 Gazeta Wyborcza printed the partial record of A.M.’s conversation with Mr Rywin. 5. In January 2003 the Sejm (the lower house of the Polish parliament) created a special parliamentary committee to conduct an investigation into the circumstances of the affair and the group in power. Simultaneously, a separate criminal investigation was conducted against Mr Rywin. 6. On 5 April 2004 the Sejm committee officially terminated the parliamentary investigation. By a majority vote it adopted a final report which came to the conclusion that Mr Rywin had been acting on his own. Subsequently, the Sejm had to decide whether to accept the committee’s official final report or one of the various minority reports as the outcome of the investigation. Unexpectedly, on 24 September 2004 it voted to accept the minority report that most radically departed from the majority report and named the applicant as a member of the “group in power” and one of the masterminds behind Rywin’s mission (together with four other persons: the former prime minister, deputy minister of culture, head of the Polish public television and a high-ranking politician). The authors of the report considered that the applicant had committed the criminal offences of bribery and false testimony. 7. On 11 October 2004 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to institute an investigation in order to establish whether he had committed the offences listed in the parliamentary committee’s report. 8. The applicant’s case was transferred to the Warsaw Appeal Prosecutor (Prokurator Apelacyjny) and subsequently to the Białystok Appeal Prosecutor, where it was joined to an investigation which had already been pending (concerning the “group in power”). 9. The applicant was heard by the prosecutor on 28 December 2004 and 7 January 2005. It appears that he was not officially charged with a criminal offence. 10. On 7 September 2005 the applicant’s representative asked about progress in his case. In reply he was informed that it was not possible to envisage the date of termination of the proceedings. 11. On 28 May 2007 the applicant’s representative again asked the Appeal Prosecutor about the progress in the investigation. He confirmed that he was aware of the fact that the investigation concerned several persons and many issues. 12. On 4 June 2007 the Appeal Prosecutor informed the applicant that since the alleged bribery scandal concerned four other persons listed in the Sejm’s report of 24 September 2004, it was impossible to terminate the proceedings only with respect to the applicant. 13. In 2007 in view of the organisational changes in the prosecution authorities, the investigation was transferred to the newly created State Prosecution (Prokuratura Krajowa) and its Białystok office. 14. On 22 January 2008 the Białystok State Prosecutor discontinued the criminal proceedings partly on the ground that no offences had been committed and partly because some of the offences were time-barred. The Prosecutor obtained evidence from numerous witnesses including many politicians and obtained voluminous documentary evidence. 15. The applicant could not appeal against the decision to discontinue the proceedings, since he was not listed as one of the culprits in the final decision. 16. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement 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 2005VIII, and in its the judgment in the case of Krzysztofiak v. Poland, no. 38018/07, §§ 23-31, 20 April 2010.
| 0
|
train
|
001-139269
|
ENG
|
PRT
|
ADMISSIBILITY
| 2,013
|
BRÁS DE MATOS AND DA COSTA TORREZÃO v. PORTUGAL
| 4
|
Inadmissible
|
András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
|
1. The applicant in the first case, Ms Silvia Brás de Matos, is a Portuguese national, who was born in 1968 and lives in Entroncamento. 2. The applicant in the second case, Ms Sandra Maria da Costa Torrezão, is a Portuguese national, who was born on 7 September 1984 and lives in Setúbal. 4. On 3 November 2009 the applicant gave birth to C. in Leiria. 5. On an unknown date, the Commission for the Protection of Children and Young Persons (Comissão de Protecção de Crianças e Jovens – CPCYP) of Torres Novas reported the applicant’s family situation to the Prosecutor’s Office at the Entroncamento Court. Proceedings for the protection of children and young persons (processo de promoção e protecção de crianças e jovens em risco) were initiated and the prosecutor ordered that C. was not to leave the hospital. 6. On 12 November 2009, C. was provisionally placed in a foster home 12 kilometres away from the applicant’s home. The admission into foster care was decided on the grounds that the applicant was living in substandard housing, without furniture, that she was suffering from a mild psychological and emotional condition and that she was unemployed. The decision was also based on the fact that the applicant’s partner, who was the father of the child, was alcoholic and had displayed violent behaviour towards the applicant. 7. On an unknown date, the applicant moved to a new apartment in Entroncamento and left her partner. 8. On 2 December 2009, the prosecutor confirmed the placement of C. in foster care for a period of three months and the applicant agreed to see a psychiatrist on a regular basis. 9. Between 12 May and 3 June 2010, the applicant, who was then suffering from depression owing to the separation from her child, was admitted to the Coimbra Psychiatric Unit. 10. On 29 June 2010, the placement of C. in foster care was extended for another six months and the applicant renewed her promise to see a psychiatrist and promised to find a job, as well as better housing. 11. On 21 December 2010, the prosecutor confirmed the placement of C. pending review of the interim protection order as provided for by law. 12. The applicant, who was granted legal aid, opposed the extension of the measure and the case was brought before the Entroncamento Court. The prosecutor requested that the child be placed in foster care with a view to her adoption; the applicant requested that she be returned to her. 13. By a judgment of 17 May 2011, the Entroncamento Court ordered the final placement of C., then eighteen months old, in foster care with a view to her adoption. Relying, in particular, on the statements from the social services in Torres Novas and from the foster home’s staff, the court considered that the applicant was not in a position to change her situation and fulfil her parental duties. As no other family member was available to take care of the child, the court considered that the placement in foster care, with a view to adoption, would be in the best interests of the child. 14. The applicant challenged the decision before the Evora Court of Appeal (Tribunal da Relação de Évora), which, on 22 September 2011, dismissed the appeal and upheld the decision of the firstinstance court. 15. There was no subsequent appeal before the Supreme Court of Justice (Supremo Tribunal de Justiça). 16. On 7 April 2009, the CPCYP was informed that the applicant was living in poor conditions and about to give birth. The applicant and her partner were both HIV-positive. The former had an unstable professional and personal life and had previously suffered the loss of a child in circumstances which remained unclear. The latter had a long history of drug addiction. 17. On 13 May 2009 the applicant gave birth to J.P. in Setúbal. 18. The child was immediately admitted to the paediatric service of the hospital and then placed in foster care following an interim protection order issued on 28 May 2009. 19. On an unknown date, the case was brought before the Setúbal Family Court (Tribunal de Família e Menores de Setúbal), which held a hearing on 3 May 2010. The applicant alleged that she had not been informed of the hearing and had therefore not been heard by the court. 20. On 6 May 2010, the Setúbal Family Court ordered the placement of the child in foster care with a view to his adoption. 21. On 11 May 2010, the applicant’s newly appointed lawyer challenged that decision before the Evora Court of Appeal, which, on 17 November 2010, upheld the first-instance decision. 22. Despite the applicant’s wish, the appointed lawyer did not bring the case before the Supreme Court, considering that an appeal against a decision based on “suitability and appropriateness” (conveniência ou oportunidade) would be barred by Article 1411, paragraph 2, of the Code of Civil Procedure. 23. On an unknown date, the applicant wrote a letter to the Supreme Court, which replied, on 18 November 2011, that it could only hear formal appeals against decisions of lower jurisdictions lodged in compliance with the applicable rules. 24. On 10 February 2011, the applicant lodged an administrative request with the Prosecutor’s Office. The request was closed on 23 March 2012 and a similar request was again closed on 24 September 2012. 25. On 25 September 2012, the applicant was informed that the case was being transferred to the Barreiro Family Court (Tribunal de Família e Menores do Barreiro). The reasons for this transfer are unknown. 26. On 24 October 2012 the applicant was notified that the Barreiro Court would discontinue the proceedings as the case had already been settled by the Evora Court of Appeal. 27. The relevant legislation relating to interim protection orders is described in the Court’s judgments in the cases of Assunção Chaves v. Portugal, no. 61226/08, §§ 56-58, 31 January 2012 and Pontes v. Portugal, no. 19554/09, §§ 61-63, 10 April 2012. In particular, Section 100 of Law no. 147/99 of 1 September 1999 on proceedings for the promotion of rights and protection of children and young persons in danger (processo de promoção de direitos e protecção das crianças e jovens em risco), as amended by Law no. 31/2003 of 22 August 2003, reads as follows: “Proceedings for the protection of children and young persons in danger ... are based on voluntary jurisdiction [Jurisdição voluntária].” 28. Article 1411, paragraph 2, of the Portuguese Code of Civil Procedure reads as follows: 2 – Decisions adopted on grounds of suitability or appropriateness [conveniência ou oportunidade] shall not be subject to appeal before the Supreme Court of Justice. 29. The relevant case-law of the Supreme Court of Justice shows a general trend towards recognition of the Supreme Court’s jurisdiction to hear appeals relating to the protection of children and young persons as long as the appeals raise issues of law and do not question the “suitability or appropriateness” of the lower court’s decisions, which are matters of fact. The following are some excerpts from relevant decisions: “... The intervention of the Supreme Court of Justice in the judgment of appeals is limited to an assessment of the decisions taken in accordance with strict legality. 3. It can verify compliance with requirements, procedural or substantive, the power to choose the most convenient measure to protect the interests at stake and the compliance with the purpose for which such powers were allocated to the courts, but not the suitability or appropriateness of that choice.” (10 April 2008) “... However, this limitation does not imply that the intervention of the Supreme Court of Justice should be totally excluded with regard to this type of appeal; it merely restricts it to an assessment of the appealed decisions as far as the strict application of the law is concerned. In particular, [it restricts the Supreme Court’s assessment] to the procedural and substantive grounds on which the power to adopt the relevant measure ... is exercised” (20 January 2010). “As proceedings for the promotion and protection of children and young persons at risk are qualified as voluntary jurisdiction proceedings, ... its [Supreme Court of Justice] intervention can only be limited to verifying the procedural and substantive assumptions legally established for the application of the measure that has been determined by the lower court and its adequacy for the purpose to which the criteria of suitability and appropriateness must be subordinated.” (4 May 2010) “... However, this legal provision must be carefully interpreted as, frequently, the appeals do not only relate to lower courts’ decisions based on suitability or appropriateness but also to the enforceability of the legal requirements or other requirements on which the decisions are based, namely their compliance with constitutional or supranational norms, which are subject to the scrutiny of the Supreme Court of Justice.” (21 October 2010). “Granting custody [of the child] to the person selected for adoption or to an institution with a view to future adoption triggers a severance in any existing relation with the biological family of the child. ... Such a measure is based on the general assumption that there is no affective parent-child relationship, or that any such relationship is severely impaired, and can only be decided in the situations described [Article 1978, paragraph 1, of the Civil Code] where verification is subject, on appeal, to the Supreme Court of Justice’s scrutiny.” (30 June 2011).
| 0
|
train
|
001-5046
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,000
|
WALKER v. THE UNITED KINGDOM
| 1
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British citizen, born in 1957 and currently resident in Stansted, England. Before the Court he is represented by Ms. Nicola Rogers, legal adviser at the Aire Centre, London. On 11 February 1994 the applicant was convicted at Saffron Walden Magistrates' Court of threatening behaviour likely to cause harassment, alarm or distress, contrary to section 5 of the Public Order Act 1986. He was fined £50. The applicant appealed. His appeal was heard on 28 April 1994 at the Chelmsford Crown Court by a judge and two lay justices. The appeal was dismissed, and the court adjourned the sentence for full psychiatric and medical reports for 28 days. The court remanded the applicant in custody for that period, without considering whether to grant bail. It appears that the conditions for remanding the applicant in custody under the Bail Act 1976 were not satisfied, and that the applicant was entitled to bail. Prior to remanding the applicant in custody, the judge enumerated the applicant's previous convictions. The applicant had been conditionally discharged for two years after one of these. The applicant admitted being in breach of the conditional discharge. No action was taken in respect of this breach either by the Magistrates’ Court or by the Crown Court. On 27 May 1994 the applicant appeared before the same judge. The psychiatric report revealed nothing material and the judge purported to pass a sentence of 28 days' imprisonment retrospectively. Defence counsel pointed out that the offence under section 5 was not punishable by imprisonment. The judge then imposed a conditional discharge for 12 months (in substitution for the previous sentence). In a letter to the Criminal Appeal Office dated 7 December 1995, the Crown Prosecution Service stated that, in their view, the learned judge had indeed erred and counsel for the respondent had regrettably failed in his duty to assist the learned judge. The applicant was granted legal aid to make an application to the High Court for judicial review of the judge's decision to remand him in custody. On 14 February 1996 the application for judicial review of the remand in custody for psychiatric reports was granted. The High Court made a declaration in the following terms: “that the applicant's remand in custody was unlawful”. On 27 February 1996, the applicant’s solicitors addressed a request to the Lord Chancellor's Department for “substantial damages by way of compensation for his unlawful imprisonment”. On 22 April 1996, the Court Service informed the solicitors that it could not pay compensation, as ex gratia compensation from the Court Service was limited to cases where “the court staff are guilty of maladministration or negligence”. It indicated that the Court Service could not pay compensation for loss or damage arising from judicial decisions. An opinion from counsel of 23 September 1996 confirmed that no action lay against the Lord Chancellor's Department, and added that, similarly, no action lay against the judge, the justices, the Crown Prosecution Service or the Prison Service.
| 0
|
train
|
001-94768
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,009
|
AYKUT AND OTHERS v. TURKEY
| 4
|
Inadmissible
|
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
The applicants, Mr Ahmet Siyavuş Ataç Aykut, Mr Feridun Gürbüz Aykut and Ms İstiklal Türkan Semercioğlu, were Turkish nationals who lived in Istanbul. By a letter of 2 July 2008 the Court was informed that Mr Feridun Gürbüz Aykut had died on 23 May 2006 and that his heirs, Ms Altan Aykut, Ms Mihriban Tulu Kortel (Aykut) and Ms Tuba Hacer Öztürk (Aykut), wished to pursue his application. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. In 1999 the Municipality of Eyüp (“the Municipality”) expropriated a plot of land belonging to the applicants (block no. 34, plot no. 9) in Eyüp, Istanbul. On 3 December 1999 the applicants brought an action before the Eyüp Civil Court of First Instance for additional compensation. On 19 October 2000 the Eyüp Civil Court awarded the applicants additional compensation of 135,252,529,000 Turkish liras (TRL) plus interest at the statutory rate, running from 3 December 1999. On 20 February 2001 the Court of Cassation upheld the judgment of the first-instance court. The administration subsequently requested rectification of the decision of the Court of Cassation. On 18 May 2001 the Court of Cassation dismissed the administration’s rectification request. On 19 November 2002 the applicants signed a document of discharge (ibraname; “the discharge”) indicating that they had received three separate cheques from the Municipality in the amounts of TRL 75,752,483,879, TRL 4,130,202,850 and TRL 300,000,000,000 respectively as additional expropriation compensation, and releasing the Municipality from all liability in relation to the compensation claim. The applicants thereby stated that they had no outstanding rights or claims against the Municipality which might become the subject matter of further legal or enforcement proceedings. On 16 December 2002 the applicants collected the cheque of TRL 300,000,000,000. The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (9 July 1997, Reports of Judgments and Decisions 1997IV); Aka v. Turkey (23 September 1998, Reports 1998VI); and Gaganuş and Others v. Turkey (no. 39335/98, §§ 1519, 5 June 2001).
| 0
|
train
|
001-87305
|
ENG
|
DEU
|
CHAMBER
| 2,008
|
CASE OF GÄFGEN v. GERMANY
| 3
|
No longer a victim of a violation of Art. 3;No violation of Art. 6
|
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
|
6. The applicant was born in 1975 and is currently detained in Schwalmstadt. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. J. was the youngest son of a renowned banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister. 9. On 27 September 2002 the applicant lured J., aged eleven, into his flat in Frankfurt am Main by pretending that the child’s sister had left a jacket there. He then suffocated J. 10. Subsequently, the applicant deposited a letter at J.’s parents’ place of residence, stating that J. had been kidnapped by several persons. Only if the kidnappers received one million euros and managed to leave the country would the child’s parents see their son again. The applicant then drove to a pond at a private property near Birstein, one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty at the pond. 11. On 30 September 2002 around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was secretly observed by the police. He paid part of the ransom into his accounts and hid the remainder of the money in his flat. That afternoon, the police arrested him at Frankfurt am Main airport. 12. After having seen a doctor at the airport’s hospital on account of circulation trouble and skin lesions, the applicant was taken to the Frankfurt am Main Police Headquarters. He was informed by detective officer M. that he was suspected of having kidnapped J. and was instructed about his rights as a defendant, notably the right to remain silent and to consult a lawyer. He was then questioned by M. with a view to finding J. In reply, he suggested that the child was being held by another kidnapper. He was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently stated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake. M. and the applicant thereupon agreed to resume the questioning the following morning. 13. Early in the morning of 1 October 2002, before M. came to work, detective officer E., acting on the orders of the deputy chief of the Frankfurt police, D., told the applicant that he would suffer considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts. According to the applicant, the officer further threatened to lock him into a cell with two huge black people who would sexually abuse him. The officer also hit him once on the chest with his hand and shook him so that his head hit the wall on one occasion. The Government disputed that the applicant had been threatened with sexual abuse. 14. For fear of being exposed to the measures he was threatened with, the applicant disclosed the precise whereabouts of the child after approximately ten minutes of questioning. 15. As the applicant had declared that he would only agree to go to the place where he had hidden J. in the presence of detective officer M., he was then driven with M. and numerous other police officers to Birstein, without detective officer E. being present any longer. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. They recorded the discovery of the corpse on videotape. 16. The police detected tyre tracks left by the applicant’s car at the pond near Birstein. When questioned by detective officer M. on the way back from Birstein to the police station the applicant confessed to having kidnapped and killed J. The police further secured J.’s school exercise books, a backpack, clothes worn by J. when he was kidnapped and the typewriter used for the blackmail letter in containers indicated by the applicant on the way back to Frankfurt am Main. They further found almost all the ransom money and a note concerning the planning of the crime in the applicant’s flat. According to the autopsy carried out on J.’s corpse on 2 October 2002, the boy had died of suffocation. 17. The applicant consulted his lawyer En., who had been instructed by his mother and had tried in vain to contact and advise the applicant in the morning at the police station, on 1 October 2002 on his return from Birstein. 18. In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated that that morning J.’s life had been in great danger, if he was still alive at all, given his lack of food and the temperature outside. In order to save the child’s life, he had therefore ordered the applicant to be questioned by police officer E. under the threat of pain which would not cause any injuries. The treatment itself was to be carried out under medical supervision. D. further stated that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the applicant’s questioning was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had already made a confession after having been threatened with pain by detective officer E., no measures had been carried out. 19. The applicant maintained his confession when questioned by the police on 4 October 2002, by a public prosecutor on 4, 14 and 17 October 2002, and by a district court judge on 30 January 2003. 20. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged an application for the proceedings to be discontinued. He claimed that he had been threatened by detective officer E. on instructions from the deputy chief of the Frankfurt am Main police, D., with being subjected to severe pain and sexual abuse. He argued that his treatment had been in breach of Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and warranted the discontinuation of the proceedings against him. 21. The applicant further lodged an application for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all further statements which he had made to the investigation authorities until the beginning of the hearing could not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”). 22. On 9 April 2003 the Frankfurt am Main Regional Court dismissed the applicant’s application for the criminal proceedings against him to be discontinued. It found that the applicant had been threatened with considerable pain if he refused to disclose the victim’s whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The mere threat to cause the applicant pain had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1, second sentence, of the Basic Law (see paragraphs 55-56 below) and Article 3 of the Convention, which underlay that provision. 23. However, this breach of constitutional rights did not bar criminal proceedings as such. In accordance with Article 136a § 3 of the Code, statements obtained through the use of prohibited methods of interrogation could not be relied upon in the criminal proceedings against the defendant. Likewise, the use of the investigation methods in question had not restricted the rights of the defence to such an extent that the criminal proceedings could no longer be conducted. Having regard to the seriousness of the charges against the applicant on the one hand, and to the severity of the unlawful conduct in the investigation proceedings on the other hand, there had not been such an exceptional and intolerable violation of the rule of law in the investigation proceedings as to bar the continuation of criminal proceedings. 24. In a separate decision also delivered on 9 April 2003 the Frankfurt am Main Regional Court, granting the applicant’s application to that effect, decided that in accordance with Article 136a § 3, second sentence, of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge could not be used as evidence in the criminal proceedings against him. 25. The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code by threatening that the applicant would suffer pain if he did not disclose the child’s whereabouts. Therefore, it was prohibited to use as evidence statements which the applicant had made as a consequence of the use of this forbidden investigative measure. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the threat on 1 October 2002. Owing to the continuous effect (Fortwirkung) of the violation of Article 136a of the Code, all further statements which the applicant had made to the investigation authorities since that date could not be relied upon in the criminal proceedings. 26. The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that the earlier statements he had made as a consequence of the use of forbidden investigation methods could not be used as evidence against him. However, the applicant had merely been instructed about his right as an accused not to testify, without having additionally been informed about the exclusion of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) in the course of any of his hearings until then. 27. On the contrary, the Regional Court dismissed the applicant’s application for a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities as a result of the statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”). That court found: “On the contrary, there is no long-range effect of the breach of Article 136a of the Code of Criminal Procedure meaning that the items of evidence which have become known as a result of the statement may likewise not be used [as evidence]. The Chamber agrees in this respect with the conciliatory view (Mittelmeinung) taken by scholars and in court rulings ...’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.” 28. In his statement on the charges, made on the second day of the trial, the applicant admitted having killed J., but stated that he had not initially planned to do so. On the contrary, in his final statement at the close of the trial, after evidence had been taken between 9 April and 28 July 2003, he admitted that he had also planned from the outset to kill the child and had acted with that intent. He then described his confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”. 29. On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity (besondere Schwere der Schuld; see paragraph 59 below). 30. The court found that at the hearing the applicant had been instructed anew about his right as a defendant to remain silent and about the fact that all his earlier statements could not be used as evidence against him, and had thereby been given the necessary qualified instruction. The applicant had nevertheless again confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court’s findings of fact. They were supported by the testimony of J.’s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant’s flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant’s confession at the trial. Further items of evidence showed that he had also told the truth in this respect. These included the findings of the autopsy as to the cause of the child’s death, the tyre tracks left by the applicant’s car near the pond where the child’s corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts. 31. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his eleven-year-old victim in order to be able to live in luxury with his wealthy friends and his girlfriend and to preserve his self-created image of a rich and successful young lawyer. It found that, contrary to the views expressed by the Public Prosecutor’s Office and the private accessory prosecutors, the fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it was proved by the autopsy on J.’s corpse that the boy had been suffocated, and tyre tracks left by the applicant’s car had been detected at the place where J.’s body had been found. 32. The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed inasmuch as the applicant had been threatened with pain in order to make him disclose the child’s whereabouts. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the pending criminal investigations against them. However, their possibly illegal acts did not mitigate the applicant’s own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law. 33. On 29 July 2003 the applicant lodged an appeal on points of law with the Federal Court of Justice, submitting his grounds of appeal on 1 December 2003 in particular. He complained that the Regional Court, in its decision of 9 April 2003, had refused to discontinue the criminal proceedings against him. He argued that on 9 April 2003, he had lodged an application for the proceedings to be discontinued. At the same time, he had applied for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence on 1 October 2002, all further statements which he had made to the investigation authorities could not be relied upon in the criminal proceedings. He had also requested the court to declare that since the confession had been obtained from him by threats, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements extracted from him was prohibited (“Fernwirkung”). The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them, in his submissions giving reasons for his appeal on points of law. He further included a copy of the Regional Court’s decision of 9 April 2003 dismissing his application for the proceedings to be discontinued and argued in respect of the police’s threats against him that, developing the case-law of the Federal Court of Justice, such conduct “leapt beyond” the exclusion of evidence and led to an impediment to the proceedings (“dass ein derartiges Verhalten das Verwertungsverbot ‘überspringt’ und ein Verfahrenshindernis begründet”). 34. In his observations dated 9 March 2004 the Federal Public Prosecutor argued that the applicant’s appeal on points of law should be dismissed as manifestly ill-founded. He argued that the use of prohibited methods of interrogation, such as a threat of torture, did not lead to an impediment to the criminal proceedings. Article 136a of the Code of Criminal Procedure expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence. The applicant had not complained of a breach of Article 136a § 3 of the Code of Criminal Procedure. In any event, there would be no grounds for such a complaint as the Regional Court had only used the applicant’s full confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence. 35. On 21 May 2004 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded. 36. On 23 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. Summarising the facts underlying the case and the content of the impugned decisions, he complained under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law about the way in which he had been questioned by the police on the morning of 1 October 2002. He argued that he had been threatened with being subjected to severe pain and sexual abuse if he did not disclose the child’e within the meaning of Article 3 of the Convention and infringed Article 104 § 1 of the Basic Law. It also violated his absolute right to human dignity under Article 1 of the Basic Law, which lay at the heart of the provisions in question. Because of these unjustifiable human-rights violations, there was both a bar to the criminal proceedings against him and a prohibition on using the items of evidence obtained as a consequence of the confession extracted from him in the course of the proceedings. 37. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for examination as it was inadmissible. 38. Firstly, in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him, the court found that he had not sufficiently substantiated his complaint. It observed that the Regional Court had already stated that the police’s threat to inflict pain on the applicant had violated Article 136a of the Code of Criminal Procedure and Article 3 of the Convention. Because of this threat, the applicant’s rights under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded in the investigation proceedings. 39. However, the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court, which was based on the findings made during the trial, breached constitutional law. In the present case, the criminal courts had found that the methods of investigation used by the police had been prohibited, but had differed from the applicant as to the legal conclusions to be drawn from that finding. They had taken the view that the use as evidence of the statements obtained as a result of the measures in question had been prohibited but that there had been no bar to the criminal proceedings altogether. 40. According to the Federal Constitutional Court, there would not have been a violation of fundamental rights if the procedural flaw of having applied prohibited methods of investigation could be regarded as having been remedied by the criminal courts, because they had prohibited the use as evidence of the statements obtained thereby. Such a prohibition was prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to compensate for a prior infringement of the rights of the person concerned. On the contrary, the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law. In these circumstances, the applicant had failed to explain why the contested methods of investigation had not only entailed a prohibition on using the statements obtained thereby as evidence, but had led to a bar to criminal proceedings against him. 41. Secondly, the Federal Constitutional Court found that, in so far as the applicant complained that the Regional Court had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extorted from him by threats (“Fernwirkung”), his constitutional complaint was likewise inadmissible. The applicant had failed to raise this issue in the proceedings before the Federal Court of Justice. 42. The decision was served on the applicant’s lawyer on 22 December 2004. 43. On 20 December 2004 the Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. It cautioned the defendant and imposed a suspended fine amounting to 60 daily payments of 60 euros (EUR), which the defendant would be required to pay if he committed another offence during the probation period. Furthermore, the court convicted the deputy chief of the Frankfurt police, D., of having incited E., a subordinate, to commit coercion in the course of his duties. It also cautioned D. and imposed on him a suspended fine amounting to 90 daily payments of EUR 120. The applicant had given evidence as a witness in these proceedings. 44. The Regional Court found that on the morning of 1 October 2002 D. had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file. By doing so, he had acted against the advice of all his subordinate heads of department entrusted with the investigation into J.’s kidnapping. The heads of department had disapproved of the measure he had ordered and had proposed an approach entailing further questioning and confrontation of the applicant with third persons instead. D. had personally ordered detective officer E. to threaten the applicant with physical violence, which was to be carried out by another specially trained police officer. The measure had been aimed at finding out immediately where the applicant had hidden J., whose life he had considered to be at great risk. In order to save J.’s life, E. had threatened the applicant in the manner ordered by D. 45. The Regional Court observed that the method of investigation had not been justified as an act of necessity, because it violated human dignity as codified in Article 1 of the Basic Law. Respect for human dignity also lay at the heart of Article 104 § 1, second sentence, of the Basic Law and Article 3 of the Convention. The protection of human dignity was absolute. Allowing exceptions or a balancing of interests would breach a taboo. 46. In determining the sentences, the Regional Court notably took into consideration that the defendants’ sole concern had been to save J.’s life and that they had been under extreme pressure because of their respective responsibilities vis-à-vis the superior authority and the public. They had been completely exhausted at the relevant time and had acted in a very tense and hectic situation. Moreover, D. had openly taken responsibility for his acts by admitting and explaining them in a note for the police file on the same day. The proceedings had lasted a long time and had attracted immense media attention. Both defendants had suffered prejudice in their professional career: D. had been transferred to the Hessian Ministry of the Interior, and E. had been prohibited from carrying out measures relevant to the prosecution of criminal offences. Furthermore, it was the first time that a conflict situation such as the one in the defendants’ case had been assessed by a German criminal court. 47. The judgment became final on 20 December 2004. 48. D. was subsequently transferred to the Police Headquarters for Technology, Logistics and Administration and was appointed its chief. 49. On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid with a view to bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised by the methods of police investigation applied against him, inter alia the threat of being subjected to pain if he did not disclose J.’s whereabouts, further threats of sexual abuse and slaps, and was in need of psychological treatment. 50. In its submissions dated 27 March 2006 the Frankfurt am Main Police Headquarters contested that E.’s conduct when questioning the applicant in the morning of 1 October 2002 was to be legally qualified as coercion and amounted to a breach of official duties. 51. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid. 52. On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed an appeal by the applicant against the refusal to grant him legal aid. Endorsing the reasons given by the Regional Court, it confirmed in particular that the police officers D. and E., when threatening the applicant, had infringed human dignity, which was inviolable, and had thus breached their official duties. However, the applicant would not be able to prove that the threats of torture uttered against him had caused mental damage necessitating psychological treatment. It was obvious that the officers’ threat for a short period of time was negligible compared to the traumatisation caused by the fact that he had killed a child. Moreover, even assuming that the applicant would be able to prove that police officer E. had shaken him, as a result of which his head had hit a wall on one occasion, and had once hit him on the chest, allegedly causing a haematoma near his collarbone, the physical damage caused thereby would be too minor to necessitate the payment of compensation for non-pecuniary damage. The violation of the applicant’s human dignity by the threat of torture did not warrant the payment of compensation either as the applicant had obtained sufficient satisfaction by the exclusion of his statements as evidence and the criminal conviction of the police officers responsible for the threats. 53. On 19 January 2008 the Federal Constitutional Court, allowing a constitutional complaint by the applicant, quashed the Court of Appeal’s decision and remitted the case to that court. It found that in refusing to grant the applicant legal aid, the Court of Appeal had violated the principle of equal access to court. In particular, that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage and had thus refused to take the necessary evidence (in the main proceedings). In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation could be considered to be of secondary importance in view of the threats uttered against him. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had obtained as a result of the criminal conviction of the police officers involved was a difficult legal question on which no precedent existed in a judgment of a court of final instance, and which should therefore not be determined in legal-aid proceedings. 54. The proceedings are currently pending before the Frankfurt am Main Court of Appeal. 55. Article 1 § 1 of the Basic Law, on the protection of human dignity, reads as follows: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority.” 56. Article 104 § 1, second sentence, of the Basic Law, on the rights of persons in detention, provides: “Persons taken into custody may neither be subjected to mental nor to physical ill-treatment.” 57. Article 136a of the Code of Criminal Procedure, on prohibited methods of interrogation (verbotene Vernehmungsmethoden), provides: “(1) The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited. (2) Measures which impair the accused’s memory or ability to understand and accept a given situation (Einsichtsfähigkeit) shall not be permitted. (3) The prohibition under subsections (1) and (2) shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.” 58. By Article 211 of the Criminal Code, the intentional killing of a person is to be qualified as murder if certain aggravating elements are present. A murderer is notably a person who kills another out of cupidity, treacherously or in order to cover up another offence. Murder is punishable by life imprisonment. 59. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, among other things, have a bearing on a subsequent decision as to whether or not to suspend the remainder of the defendant’s prison sentence on probation. Article 57a of the Criminal Code states that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, provided that this can be justified in the interests of public security and the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence.
| 1
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train
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001-96505
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ENG
|
RUS
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ADMISSIBILITY
| 2,009
|
SUCHKOV v. RUSSIA
| 4
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Inadmissible
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Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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The applicant, Mr. Vitaliy Nikolayevich Suchkov, is a Russian national who was born in 1945 and lives in Barnaul. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant set up a deal with a certain S. (“the debtor”): 9,600 United States dollars (USD) for a Mitsubishi car. The debtor took the applicant’s money but never handed the car over to the applicant. The applicant lodged a civil action against S. On 15 September 1999 the Industrialny District Court of Barnaul (“the District Court”) ordered that S. pay the applicant 233,184 Russian roubles (RUB). The judgment became binding on 28 September 1999. On 22 November 1999 a bailiff of the Industrialny District of Barnaul (“the bailiff”) opened enforcement proceedings. The parties disagree as to the subsequent events between November 1999 and June 2000. According to the applicant, the bailiff was inactive throughout this period and later forged enquiries to a bank and the Road Inspectorate backdated to 23 November 1999. According to the Government, the bailiff took certain steps aimed at enforcing the judgment. On 9 December 1999 the bailiff issued a charging order in respect of the debtor’s cars, then had it transferred to the Road Inspectorate six days later. On 15 December 1999 the debtor’s garage was attached. On 21 December 1999 the bailiff checked the state of the debtor’s possessions. On 7 February 2000 the bailiff drew up an inventory of the debtor’s movable assets. Between 15 March and 16 June 2000 the enforcement proceedings were transferred to the Leninskiy District of Barnaul bailiffs’ service. The latter found that none of the debtor’s property remained in Leninskiy District, so the enforcement proceedings were transferred back to Industrialny District. Further events are not disputed by the parties. In June 2000 the bailiff attached part of a flat jointly owned by the debtor and his former wife, instructed the Road Inspectorate to impound the debtor’s Mitsubishi car, if it could be located, made enquiries about the debtor’s place of work and issued an order to retain half of the debtor’s salary every month for the benefit of the applicant, and suggested that the applicant accept the spare parts of a disassembled Toyota car discovered in the debtor’s attached garage as part satisfaction of the debt. In June 2000 the debtor was asked by the bailiff to bring his Mitsubishi and Moskvich cars to the bailiffs’ office, but failed to do so. In July 2000 the debtor, twice fined by the bailiff for failure to hand over his property, told the bailiff that he had sold the Mitsubishi in June 1999 to Sh., and that the Moskvich had been sold long ago, in 1994. By a judgment of 18 January 2001, which became binding on 30 January 2001, the District Court confirmed that the debtor was still the legal owner of the Mitsubishi and that therefore the attachment of the vehicle was legal. As the Mitsubishi could not be located, the bailiffs conducted a search for it. Having yielded no results, the search was discontinued in March 2003. Some of the debtor’s assets were not liable to seizure because the property was jointly owned by the debtor and his ex-wife, so the applicant brought a court action seeking division of their common assets. By a judgment of 17 April 2001, which became binding on 30 May 2001, the District Court determined how the property in question was to be divided. According to the judgment, the debtor received in property a part of the flat and the garage, whereas the Moskvich and the disassembled Toyota acquired in the course of the marriage and registered at the Road Inspectorate in the debtor’s name were given to the debtor’s ex-wife. By a decision of 27 February 2002 the Altay Regional Court confirmed in the final instance that the debtor’s part of the flat was not liable to seizure because it was the only home he had. On 28 February 2003 the debtor’s garage, for which no bids had been made at auction, was given to the applicant. On 30 May 2003 the bailiff closed the enforcement proceedings. The applicant continued to receive monthly payments held back from the debtor’s salary. In the meantime, the applicant sued the Ministry of Finance for inflationary losses supposedly caused by the bailiffs’ inactivity during the enforcement of the judgment. On 26 July 2001 the Tsentralny District Court granted the applicant’s claim, but on 3 October 2001 that decision was quashed on appeal and the matter was remitted for fresh examination before a first-instance court. On 15 November 2001 the Tsentralny District Court of Barnaul dismissed the applicant’s claim in full. It held, inter alia, that, although the bailiffs had failed on several occasions to respect the procedural time-limits, there was no causal link between the bailiffs’ conduct and the alleged losses. On 26 December 2001 the Altay Regional Court upheld the above decision on appeal. Article 28 § 2 of the Russian federal law “On Enforcement Procedure” (Law no. 119-FZ of 21 July 1997) provides that a search for a debtor’s missing property must be conducted by a bailiff if paid for in advance by a creditor. The creditor shall have the right to recover the incurred expenses from the debtor. Article 87 of the same law provides for certain measures which a bailiff 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.
| 0
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train
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001-58087
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ENG
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AUT
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CHAMBER
| 1,997
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CASE OF WORM v. AUSTRIA
| 3
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Preliminary objection dismissed (Article 35-1 - Six month period);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
| null |
6. The applicant, Mr Alfred Worm, is a journalist. He was born in 1945 and lives in Vienna. 7. At the material time the applicant was working for Profil, an Austrian periodical dealing mostly with politics. For several years, he investigated into and reported on the case of Mr Hannes Androsch, a former Vice-Chancellor and Minister of Finance, who was involved in certain criminal proceedings. 8. In 1989 Mr Androsch had been convicted by the Vienna Court of Appeal (Oberlandesgericht) of having made false statements as a witness on two occasions. The court found that he had, before a parliamentary investigating committee (Untersuchungsausschuß), wrongly stated that certain amounts of money had been put at his disposal by a Mr S., whereas in fact they had been transferred from anonymous bank accounts operated by his wife and himself. Furthermore, in the context of criminal proceedings against financial officers charged with abuse of authority, Mr Androsch had stated that several anonymous accounts were held by a Mr S., whereas in fact they were operated by his wife, his mother and himself. 9. In 1991 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), sitting as a court of two professional judges and two lay judges (Schöffengericht), conducted criminal proceedings against Mr Androsch concerning charges of tax evasion. It held hearings, inter alia, on 25 and 26 May 1991. On 8 October 1991 Mr Androsch was convicted of having evaded taxes between 1973 and 1981. He was sentenced to a fine of 1.8 million Austrian schillings (ATS). 10. On 1 July 1991 Profil had published a two-page article written by the applicant, relating to the above proceedings. It read as follows: “ADJOURNED FOR REFLECTION A criminal court sitting with lay judges spent two days considering Hannes Androsch's tax evasion. The atmosphere during the trial was glacial. ‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ (Mr Heinz Tschernutter, tax investigator and witness, when asked what principles had governed the hearing of the Androsch case.) On the day before the trial [the Austrian newspaper] Die Presse dropped the bombshell that was meant to shake all Austria. Lawyer Herbert Schachter was quoted as saying: ‘I’m sure that Dr Androsch will present his case in an impressive manner.’ The horizon was darkened by this impressive presentation and the earth shook as the accused worsened his lousy position by taking refuge in lapses of memory (‘I can't remember’ – ‘I don't have any detailed knowledge’) and by attempting to shift the blame onto others (‘I was represented by tax advisers in all those years’) or by playing the animal that has been maltreated (‘There is not a single large-scale business in the whole of Austria that has been subjected for years to as many inspections as I have been’). Hannes Androsch's biggest problem is Hannes Androsch. His second biggest problem is his lawyer, Herbert Schachter. Together, defending counsel and client are invincible. If blatant scorn could change the temperature, the courtroom would be covered by a thick layer of ice. The patient judge, Friedrich Zeilinger, enquires, ‘So, what exactly happened?’ The blasé defendant replies, ‘I would ask you to infer exactly what happened from the file. You have the documents in front of you – I haven't.’ At another point Androsch said, with a disdainful gesture towards Friedrich Matousek: ‘You, my dear Public Prosecutor ...’ in a tone as if to say ‘You wretched worm!’ Androsch underestimates the judiciary. Once again. Judge Zeilinger knows the file inside out, as was clear from each of his questions. The public prosecutor, Matousek, is able to find his way around in the dark generated by the ‘international legal adviser's’ murky financial deals, and, after all, the prosecuting authorities have been examining the flow of funds to and from Hannes Androsch for a good decade. The accused mistook the excessively polite and markedly accommodating manner of the presiding judge for weakness. He has also known the public prosecutor for years and yet still doesn't know him properly. Matousek speaks quietly and slowly so that one can follow what he says, and acts in a spectacularly unspectacular manner. Only the arrogant interpret his lack of grand gestures as cluelessness. Even the public prosecutor did make one mistake, however, when he cited the judgment of the Court of Appeal in the proceedings against Androsch for giving false evidence (now concluded) and referred to ‘long-term, ingenious and sophisticated linking of accounts’. The alleged tax evasion was perhaps ‘long-term’ but by no means ‘ingenious and sophisticated’. The opposite was true: anyone venturing into the maze of Androsch's accounts containing undeclared money is amazed by the structure's simplicity. It is not only wholly lacking in sophistication but is almost astoundingly crude. Crude not because Androsch lacked intelligence but rather because it was based on the cast-iron foundation of the misplaced loyalty of officials. While Androsch was Finance Minister, until January 1981, he could rely on the zealous but unlawful obedience of a number of powerful officials. As soon as Androsch left, those officials had their hands full concealing their complicity in the cover-up. Admittedly, a whole string of other officials, by no means excessively brave but simply law-abiding, attempted again and again to ensure that the law prevailed. They foundered, however, on practicalities. The team led by the Carinthian tax investigator, Adolf Panzenböck (1982 to 1984) certainly gathered all the relevant details, but the head of one of the Vienna tax offices who had been in charge of the case for only a day and a half issued a clean bill of health. And last week, when they appeared as witnesses, the tax officials Walter Handerek, Heinz Tschernutter and Gerhard Berner, who reopened the file between 1985 and 1988, were treated by defending counsel Herbert Schachter as though they were the accused rather than Androsch. It has been known since 1980 that Androsch evaded taxes. The legal proceedings which were adjourned on Friday furnished further proof that for years the accused escaped prosecution thanks to the zealous obedience of officials. When this was no longer possible as an independent judge was in charge of the investigations, Androsch's advisers took every opportunity to delay the proceedings. It is both symptomatic and revealing that Androsch told the trial court again and again that ‘seven inspections’ had been carried out and on each occasion had found in his favour, and that it was very unfair that just the eighth inspection should shatter the ideal world of his illusory innocence. Everyone except him is to blame for this. Androsch has in the meantime become so completely immersed in the role of the innocent victim that he cannot subjectively conceive of ever having been the guilty party. From an objective point of view, it should be pointed out in Androsch's favour that there may be several people in Austria who in nearly two decades (from 1965 to 1983) have evaded more than 6.3 million schillings in tax without, however, being subjected to such intensive publicity. On the other hand, no Austrian Finance Minister has simultaneously operated seven accounts containing undeclared funds. And, as the public prosecutor put it, although the origin of part of the money had been established, approximately five million schillings were left from unknown sources. It was impious of Androsch to wheel out his ‘adoptive uncle’ again at the trial. Admittedly, he argued eloquently that the ‘adoptive uncle’ was actually an ‘adoptive father’, but nonetheless the name of a dead person had been taken in vain. Androsch alarmingly implicated not only his ‘adoptive father’ Gustav Steiner but also his father-in-law Paul Schärf in these financial proceedings. Both were induced to sacrifice themselves for Androsch and to assume a responsibility for undeclared funds and fiduciary relationships which they had never had. The investigating judge Anton Zelenka and subsequently the tax authorities and other judges (Josef Zehetmayer and later the Court of Appeal) proved long ago that Androsch was lying on this point. The flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes. His defence in court was disgraceful; after so many years one would at least have expected properly constructed arguments. Each time Judge Zeilinger asked him a specific question he either took refuge in lapses of memory or blamed his ‘adoptive father’. He even trotted out the late Sir Arthur Stein, the explorer of the Silk Road, from whom he claims to have received a legacy. No new submissions were made in court – either as regards the accounts containing undeclared money or as regards the funding for his villas. Anyone who had expected Androsch to tell all and, as announced in the newspapers, to reveal new facts and adduce convincing arguments in his defence was bitterly disappointed. Only in respect of the charges of ‘covert distribution of profits’ was there any legal skirmishing. Mr Schachter told the court that Androsch was a ‘victim of politics’. ‘Crimes had been attempted’ against Androsch and his client had always had ‘opponents who had gone as far as attempting to destroy Androsch psychologically and physically’. Bruno Kreisky and others were to blame for this. The court kept trying very gently to bring the defendant back down to earth from his long-winded waffling. And each time he replied ‘I can't say. After all, I do have other things to do’ (i.e. than grapple with such stupid questions). If necessary, the authorities can always be blamed for everything. In the instant case this cliché clearly did not apply to Judge Zeilinger. For two mornings he demonstrated drawing-room justice at its best. The judge forced himself to be polite even when he was clearly irritated by the defendant's bored self-assurance. On the very first day of the trial an area of psychological tension built up which the former Minister clearly misinterpreted. From time to time the 53-year-old slipped into the role of a public speaker talking politics. He paid less and less attention to the judge's questions and treated the public prosecutor with increasingly provocative contempt. He turned to look more and more often at the public in the gallery, seeking approval, and his gestures increasingly reminded one of the self-satisfied, powerful Vice-Chancellor and Finance Minister accustomed to victory. In those circumstances serious tactical errors were made. Defence counsel interrupted the judge and Androsch succumbed to his own charm. He talked and talked, a volubility that the Kronen Zeitung mistook for ‘brilliant rhetoric’. In reality the defendant was distancing himself as much as possible from his own responsibility. Others were to blame. Judge Zeilinger did not lose control of the situation for a second, however. From time to time, as was apparent from his posture, he had a sharp word on the tip of his tongue, but he never actually uttered it. The defendant sensed weakness and made full use of his own – supposed – strength; he forged a link with the public while severing the one with the court. Judge Zeilinger had prepared for this trial keenly and diligently. By citing facts he kept forcing Androsch into corners from which he could only escape by taking refuge in memory lapses. In many major trials the sinner has been given a fair chance to the very end. Androsch too had a fair chance last Friday; of twelve defence motions, ten were dismissed and two allowed. The court admitted evidence as to whether in the tax proceedings against Androsch any unlawful influence had been exerted or instructions issued which adversely affected the taxpayer. In the next stage of trial, in August or September (the court even took account of defence counsel's summer holidays!), officials from the Regional Tax Office and the Ministry of Finance will therefore be heard as witnesses. There comes, however, a point in every trial after which the court expects some sign of understanding. It hopes for a trace of humility that may be appraised as a mitigating circumstance. The defendant has shown no humility to date, not even for a second. But he now has a few weeks to consider whether it is consonant with the principles of a State based on the rule of law for a Finance Minister and his family to have at their disposal accounts containing millions in undeclared funds. It is now for him to display greatness. The judicial system has uncovered serious matters. The court nevertheless was guided wholly by the principles of fairness up to the very last moment of the trial last Friday, when it adjourned the proceedings. For reflection.” 11. Mr Worm was charged under section 23 of the Media Act (Mediengesetz – see paragraph 23 below) for having exercised prohibited influence on criminal proceedings (verbotene Einflußnahme auf ein Strafverfahren). 12. On 12 May 1992 the Vienna Regional Criminal Court, sitting with one judge (Einzelrichter), acquitted the applicant. It found that the text in issue was not capable of influencing the outcome of the proceedings against Mr Androsch and that it was not established that the applicant had acted with such an intention. 13. The court recalled that in 1991 Mr Androsch had been convicted of tax evasion (see paragraph 9 above). In establishing whether the impugned article was capable of influencing the result of these proceedings, the court noted that the wording and content of the article as a whole, as well as the development of the proceedings reported upon, the person of the accused, and the person of the applicant had to be taken into account. The article, unlike court reports of the scandal press, analysed the conduct of the presiding judge, the public prosecutor, defence counsel and in particular the accused, Mr Androsch, almost as a psychologist would have done. Furthermore, the court found that it was clear for every reader, who was vaguely familiar with the issue, that the applicant, who had been working for Profil for many years, had intensively dealt with the so-called “Causa Androsch” and had frequently reported on it. It appeared from the article that the applicant assumed that the investigations carried out by the tax authorities were correct. He subjected the statements made by the accused at the trial to a critical psychological analysis. However, his way of writing and the wording used were not capable of influencing these proceedings. Even to a lay judge, the applicant's person and his activities as a journalist in the Androsch case were well known. Thus he would not expect the applicant to give a neutral account of the proceedings. Moreover, it had not been established that the applicant had acted with the intention of influencing the outcome of the proceedings, in particular as it appeared that he was convinced that Mr Androsch would in any event be convicted. 14. On 19 October 1992 the Vienna Court of Appeal, sitting as a court of three professional judges on an appeal by the public prosecutor, held a hearing in the presence of the applicant and his counsel. Mr Worm was questioned and stated in particular that the first sentence of the incriminated passage, namely that “the flow of funds into and out of the seven accounts containing money not declared to the tax authorities allows of no other interpretation than that Androsch was evading taxes”, was a quotation from the public prosecutor's statement during the trial. The latter had also frequently made reference to Mr Androsch's conviction for having made false statements as a witness (see paragraph 8 above). 15. At the end of the hearing, the operative provisions of the judgment as well as the relevant reasons were read out. The court convicted the applicant of having exercised prohibited influence on criminal proceedings and imposed on him forty day-fines of ATS 1,200 each, that is ATS 48,000, or twenty days' imprisonment in default of payment. The publishing firm was made jointly and severally liable for payment of the fine. 16. The full text of the judgment was served on the applicant on 25 March 1993. 17. The court held, inter alia: “The prosecution appeal is therefore well-founded. It rightly takes as its starting-point that the offence defined in section 23 of the Media Act must be classified as a potentially endangering offence [abstraktes Gefährdungsdelikt] … In general, a potentially endangering offence is defined as conduct typically capable of bringing a dangerous situation into existence, even if in any given case no one is actually exposed to the danger concerned ... The law regulates only the offender's conduct – in this case comment on the value of evidence – and links to it the inference that such comment is also capable of influencing the outcome of criminal proceedings. A potentially endangering offence accordingly amounts to conduct which is criminal irrespective of any result it may have [schlichtes Tätigkeitsdelikt] ... The considerations set out in the judgment at first instance as to the extent to which the comment on Mr Androsch's defence was capable of influencing the outcome of the criminal proceedings were therefore pointless ... The defendant's replies under examination in criminal proceedings constitute evidence ... [The passage in issue] constitutes (unfavourable) comment on the value of the answers given by Mr Androsch, not just – as the court below held – a critical psychological analysis ...” 18. It observed that “the objective element of the offence defined in section 23 of the Media Act is constituted not only by unfavourable comment on evidence but also by favourable comment”. 19. The Court of Appeal also contested the Regional Court's assumption that everybody, including the lay judges, knew the applicant's long-standing commitment in the Androsch case and would therefore not be influenced by his article. It was in no way certain that the lay judges regularly read Profil. On the contrary, in spectacular proceedings like the ones in issue, it happened frequently that lay judges would follow the reports in papers they did not usually read. There was no doubt that, at least with regard to the lay judges, the reading of the incriminated article was capable of influencing the outcome of the criminal proceedings. 20. The court added: “[The above finding] is all the more true in the present case because it can be inferred from the article that the accused wished to usurp the position of the judges dealing with the case. The objective element of the offence defined in section 23 of the Media Act is accordingly made out. As regards the subjective element, it should be observed that it is hard to understand why the court below should have concluded that there was no intention to influence the outcome of the trial when that intention was, on the contrary, quite obvious.” 21. The court further found that the applicant's expertise and involvement in the subject matter rather reinforced the impression that he had written the article with the intention of influencing the outcome of the proceedings. He had researched into the case since 1978 and had written more than a hundred articles about it. From the beginning he had been convinced that Mr Androsch had committed tax evasion. In the article in issue he had not only criticised Mr Androsch's statement but had also anticipated the outcome of the proceedings, namely the conviction of the accused. 22. The judgment ended as follows: “Even the quotation of the answer given by Mr Heinz Tschernutter placed at the top of the article – ‘Above all, there were to be no mistakes during the proceedings. The case was to be handled with common prudence, properly and to the best of our knowledge and belief – but not with kid gloves!’ – gives the average reader the impression that the court was being advised and urged to follow the same approach, in other words not to make any mistakes and not to handle Mr Androsch with kid gloves.” 23. Section 23 of the Media Act (Mediengesetz) is entitled “Prohibited influence on criminal proceedings” (Verbotene Einflußnahme auf ein Strafverfahren) and reads as follows: “Anyone who discusses, subsequent to the indictment ... [and] before the judgment at first instance in criminal proceedings, the probable outcome of those proceedings or the value of evidence in a way capable [geeignet] of influencing the outcome of the proceedings shall be punished by the court with up to 180 day-fines.” 24. Article 77 of the Code of Criminal Procedure reads: “(1) Judicial decisions are made public either by being read out in court or by service of the original or a certified copy thereof. (2) When read out, judgments must be put on record. Upon request, anyone concerned may receive a copy of the judgment.” In practice, written copies of decisions such as the one at issue in the present case are automatically served on the persons concerned. 25. Under Austrian criminal procedural law, the time allowed for appeals begins to run from the date when the written version of the decision appealed against has been served on the party concerned (Article 79 § 2 of the Code of Criminal Procedure).
| 0
|
train
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001-59364
|
ENG
|
CHE
|
GRANDCHAMBER
| 2,001
|
CASE OF D.N. v. SWITZERLAND
| 1
|
Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Elisabeth Palm
|
9. The applicant, born in 1964, had been placed in psychiatric detention on eleven occasions since 1989. In 1994 she was hospitalised in February, June and September. 10. On 14 November 1994 Dr E., a district medical officer (Bezirksarzt) in St Gall, decided in agreement with the applicant to send her to the Wil cantonal psychiatric clinic (“the psychiatric clinic”) on account of chronic schizophrenia and of constituting a danger to herself. 11. On 1 December 1994 the applicant applied for release from the psychiatric clinic. Her request was refused on the same day by Dr O., the chief medical officer of the psychiatric clinic, who referred, inter alia, to a psychotic outbreak (Schub) of recurring schizophrenia and to her inability to accept her illness (mangelnde Krankheitseinsicht). 12. On 12 December 1994 the applicant, who was represented by counsel, filed an application with the Administrative Appeals Commission (Verwaltungsrekurskommission) of the Canton of St Gall, requesting, with reference to Article 397e § 2 of the Swiss Civil Code (Zivilgesetzbuch), her release from the psychiatric clinic. She also requested that the expert who was to examine her should not act as specialised judge (Fachrichter). 13. The Administrative Appeals Commission appointed one of its members, R.W., a doctor specialising in psychiatry and psychotherapy, to act as judge rapporteur. 14. On 15 December 1994 R.W. interviewed the applicant at the psychiatric clinic from 2.25 p.m. to 3.15 p.m. A court registrar (Gerichtsschreiberin) was also present. According to the verbatim record prepared by the latter, R.W. concluded the interview as follows: “W. explains the further procedure and that the hearing will take place on 28 December 1994. W.: I shall propose to the court to dismiss the action. N.: Pity.” 15. By letter of 19 December 1994 the Administrative Appeals Commission informed the applicant’s counsel that the hearing had been fixed for 28 December 1994 at the psychiatric clinic. The letter referred to R.W. as being one of the specialised judges on the bench and rapporteur. It was further stated that at the hearing counsel would have the opportunity to comment on the expert opinion and on the case file. 16. On 23 December 1994 R.W. submitted his expert opinion. He diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high doses of medication. The report concluded: “If the applicant’s situation does not clearly improve before the date of the hearing, I recommend dismissal of the action. The applicant may consult this report.” 17. The hearing took place on 28 December 1994 at the psychiatric clinic. The bench of the Administrative Appeals Commission consisted of the President, who was a professional judge, and four other judges, namely a youth attorney (Jugendanwalt) and lawyer; a district director and curator (Amtsvormund) of the social services; an administrator of Pro Infirmis, a charitable association assisting the ill; and R.W., the rapporteur. The Administrative Appeals Commission heard two doctors from the psychiatric clinic and the applicant. The applicant’s counsel, who was on holiday, remained absent, the Administrative Appeals Commission having refused to grant his request to postpone the hearing until January 1995. 18. On 28 December 1994 the Administrative Appeals Commission dismissed the applicant’s action. 19. In its decision, the Administrative Appeals Commission concluded with reference, inter alia, to R.W.’s expert opinion that the applicant suffered from severe mental disturbances warranting her detention in a psychiatric institution. 20. In so far as the applicant had requested to be examined by an expert who was not a member of the Administrative Appeals Commission, it was found that the she had not substantiated her request. Reference was made to the case-law of the Federal Court (Bundesgericht), in particular a decision published in 1993 (Bundesgerichtsentscheide (BGE), vol. 119 Ia, p. 260), where that court had not expressly ruled out the combination of expert and judicial functions. 21. The applicant lodged a public-law appeal (staatsrechtliche Beschwerde) with the Federal Court, complaining, inter alia, of the position of the expert R.W., who should not have dealt with the case as he had already previously dealt with it by acting as an expert (Vorbefassung). 22. On 3 April 1995 the Federal Court dismissed the public-law appeal. In respect of the position of the expert, the court found, with reference to its own case-law: “In the letter ... of 19 December 1994 counsel for the applicant was informed of the identity of the expert, and also that he would act as specialised judge and rapporteur. Already in her application to the Administrative Appeals Commission the applicant had provisionally requested that the expert should not act as specialised judge. However, she does not discuss the contrary opinion of the Federal Court. In line with the Federal Council’s Message to Parliament concerning the part of the Civil Code dealing with committal to a psychiatric institution, ... it has not been called in question that experts within the meaning of Article 397e § 5 of the Civil Code will also act as members of the deciding body ..., to the extent that their position can at all be compared with that of a regular expert who is consulted in evidence proceedings ... It is true that the Federal Court has recently described the combination of expert and judicial functions as being ‘not entirely unobjectionable’ ... However, no change of case-law can be seen in that decision, and the applicant has not shown today in what respect such a change would be called for ...” 23. Articles 397a et seq. of the Swiss Civil Code concern deprivation of liberty, inter alia, on account of mental illness. Articles 397a and 397b list the conditions for such deprivation. Articles 397d, 397e and 397f provide as follows, in the version applicable at the relevant time: D. Judicial review 1. The person concerned or another close person may lodge in writing with the judge a complaint against the decision within ten days of its receipt. 2. This right shall apply even if a request for release has been refused. E. Proceedings in the cantons I. In general The proceedings shall be determined by the cantonal law with the following exceptions: 1. In each decision the person concerned shall be told the reasons of the decision and informed in writing of the possibility of lodging a complaint with a judge. 2. Every person who enters a clinic must immediately be informed in writing that a complaint can be lodged with a judge in case of detention or if a request for release is refused. 3. A request for judicial examination shall immediately be transferred to the competent judge. 4. The request for judicial examination can be granted suspensive effect by the authority ordering the hospitalisation or by the judge. 5. In the case of mentally ill persons a decision can only be taken after consultation of an expert; if in judicial proceedings this has already happened, higher courts need not do so. II. Before the court 1. The judge shall decide in simple and speedy proceedings. 2. Where necessary he shall appoint a legal representative for the person. 3. The judge of first instance shall hear this person orally.” 24. Upon enactment of these provisions the Federal Council published in 1977 in the Official Gazette (Bundesblatt 1977, vol. III, p. 37) a message (Botschaft) to the Federal Parliament in which it was explained that cantons were free to appoint as experts for these release proceedings persons within or outside the judicial body deciding on the release. 25. The Federal Court has developed extensive case-law on Article 397e § 5 (see paragraph 23 above). In a judgment published in 1984 (BGE, vol. 110 II, p. 122) it dealt with the issue whether the expert referred to in Article 397e § 5 could act as a judge in the proceedings and stated: “This provision is complied with if experts belong as members to the deciding body ... The purpose of the statutory provision is that in the case of mentally ill persons no decision should be taken without the advice and the specialised knowledge of psychiatrically trained doctors. This will be the case in an optimal manner if such doctors participate as members of the judicial body.” 26. In a judgment of 1992 (BGE, vol. 118 II, p. 253) the court stated: “It is one of the essential procedural guarantees that the expert mentioned in Article 397e § 5 of the Civil Code, even if he is not a member of the deciding body, shall be both an established expert and impartial. This implies that the expert shall not already have expressed an opinion on the illness of the person concerned in the same procedure, i.e. in the administrative proceedings preceding the court procedure ... For it should not be overlooked that the judge who examines the grounds stated in Article 397a §§ 1 and 3 of the Civil Code will substantially depend on the opinion of the expert. The position granted by the federal legislator to the expert within the framework of detention on grounds of protective care is exceptional: his position cannot at all be compared with that of an expert who is consulted in proceedings in which evidence is taken. The expert must imperatively be heard before the contested decision whether or not to release a person from detention.” 27. In judgments published in 1993 (BGE, vol. 119 Ia, p 260, and vol. 119 II, p. 319) the Federal Court referred to the “not entirely unobjectionable combination of expert and judicial functions” (“nicht ganz unbedenkliche Verquickung sachverständiger und richterlicher Funktionen”) and, in respect of the expert mentioned in Article 397e § 5 of the Civil Code, to “the particular requirement of critical objectivity towards clinical doctors and psychiatrists” (“die hier besonders geforderte kritische Objektivität gegenüber den Klinikärzten und den Psychiatern”). 28. In the Canton of St Gall the Administrative Appeals Commission (Verwaltungsrekurskommission) is the competent body to decide on matters of deprivation of liberty if and when a person contests detention. The commission has one full-time judge and twenty-four to thirty specialised judges, including doctors (often psychiatrists) and social workers. The professional judges are appointed by the cantonal parliament; the non-professional judges and the specialised judges are appointed, upon proposal of the Administrative Tribunal of the Canton of St Gall, by the cantonal government. A judge’s term of office lasts six years. 29. The Administrative Appeals Commission sits with five judges, including regular judges and specialised judges. 30. The Administrative Appeals Commission has opted for the system whereby the expert required by Article 397e § 5 of the Civil Code is appointed from the bench of judges. 31. According to section 71c(2) of the Act on Administrative Court Procedure (Gesetz über die Verwaltungsrechtspflege) of the Canton of St Gall, in the version in force at the relevant time, after an action has been filed with the Administrative Appeals Commission the President will immediately order the questioning of the person concerned by a judge. The questioning is undertaken by the judge rapporteur who will then prepare an expert opinion (Rule 6 of the Rules of Procedure of the Administrative Appeals Commission – Reglement über den Geschäftsgang der Verwaltungsrekurskommission).
| 1
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train
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001-75633
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,006
|
HAMBÁLEK v. THE CZECH REPUBLIC
| 4
|
Inadmissible
|
Peer Lorenzen
|
The applicant, Mr Zdeněk Hambálek, is a Czech national who was born in 1957 and lives in Opava. He is represented before the Court by Mr J. Vyroubal, a lawyer practising in Moravská Ostrava. The Czech Government (“the Government”) are represented by their Agent, Mr V.A. Schorm, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 December 1996 the applicant’s daughter brought proceedings for damages against the two medical institutions before the Ostrava District Court (okresní soud). She was represented before the court by the applicant. Between October 1997 and July 1998 the District Court took a number of procedural steps. On 28 August and 30 September 1998 respectively, it held two hearings. Between December 1998 and August 2000 further procedural steps were carried out. On 21 August 2000 the District Court held a hearing. During the period from September 2000 to December 2003 the case of the applicant’s daughter continued to be dealt with by the courts. On 23 April 2001 the applicant’s daughter reached majority. On 13 January 2003 the District Court held a hearing. On 28 February 2003 the applicant, acting in his daughter’s name, withdrew the action as a consequence of delays in the proceedings. On 25 April 2003 the District Court discontinued the proceedings. Its decision became effective on 27 May 2003.
| 0
|
train
|
001-105917
|
ENG
|
SRB
|
ADMISSIBILITY
| 2,011
|
MILOSEVIC v. SERBIA
| 4
|
Inadmissible
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
|
1. The applicant, Mr Miladin Milošević, is a Serbian national. He was represented before the Court by Mr M. Veljković, a lawyer practising in Velika Plana. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 2 3. The applicant was born in 1959 and lives in Velika Plana. 4. The applicant was employed by the Ministry of Internal Affairs (“the Ministry”) as an inspector (inspektor za suzbijanje opšteg kriminaliteta) in the Police Station in Velika Plana. 5. On 24 January 2002 the Municipal Court in Velika Plana (“the Municipal Court”) delivered a partial judgment, ordering the Ministry to reinstate the applicant to the position of inspector. 6. On 22 October 2002 and 1 July 2004 respectively the District Court in Smederevo (“the District Court”) and the Supreme Court upheld the judgment of 24 January 2002. 7. On 5 December 2002 the Fourth Municipal Court in Belgrade (“the enforcement court”) ordered the enforcement of the partial judgment of 24 January 2002. 8. On 27 March 2003, 26 January 2004, 11 February 2008, 12 October 2009 and 1 November 2010 the enforcement court ordered the Ministry to pay fines of 20,000 Serbian dinars (RSD), RSD 40,000, RSD 60,000, RSD 80,000 and RSD 100,000 respectively for the non-enforcement of the judgment of 24 January 2002. 9. Failing to comment on the circumstances which led to his dismissal, the applicant supplied a certificate dated 14 December 2005 and issued by the Department of Internal Affairs in Smederevo (Sekretarijat unutrašnjih poslova u Smederevu), according to which there was no record of a conviction in that Department’s Criminal Registry (Kaznena evidencija Sekretarijata). 10. The Government did not dispute the facts submitted by the applicant. However, they provided a broader context to the facts submitted by the applicant, which may be summarised as follows. 11. On 17 February 1998 the applicant was suspended from his position on suspicion of releasing official information in relation to an ongoing investigation into alleged abuse of office on the part of his brother-in-law (pašenog), who had been the director of company J. 12. Following disciplinary proceedings, the applicant’s employment was terminated from 13 November 1998. 13. On 28 January 1999 the applicant filed a lawsuit against the Republic of Serbia (“the respondent”), requesting the annulment of the disciplinary decisions and his reinstatement as inspector. 14. On 30 July 1999 the Municipal Court granted the applicant’s claims in full. On 20 December 1999 the District Court upheld the judgment of 30 July 1999. 15. The respondent lodged an appeal on points of law, which could not suspend the enforcement of the judgment of 30 July 1999. 16. On 5 December 2000 the Fourth Municipal Court in Belgrade ordered the enforcement of the judgment of 30 July 1999. 17. On 21 February 2001 the Supreme Court quashed the judgments of 30 July and 20 December 1999, and ordered a retrial. 18. On 1 August 2001 the applicant was reinstated as inspector, in accordance with the judgment of 30 July 1999. 19. On 31 August 2001 the applicant was dismissed again (see paragraphs 26 and 27 below). 20. On 31 May 2001 the applicant filed another lawsuit requesting that the court order the Ministry to pay him his salaries and other employment-related benefits for the period of his unemployment. 21. On 26 December 2001 the Municipal Court decided to join the applicant’s claim for reinstatement (see paragraph 17 above) to the proceedings. 22. In these joined proceedings, on 24 January 2002 the Municipal Court delivered a partial judgment, declining to examine the applicant’s claim in relation to his salaries and other benefits (see paragraph 20 above). 23. On 24 June 2003 the respondent requested that the Municipal Court reopen the proceedings regarding the applicant’s dismissal, submitting that the applicant had been finally convicted in connection with identical circumstances (see paragraph 32 below). 24. Following two remittals, on 6 April 2011 the Court of First Instance (Osnovni sud) in Smederevo rejected the respondent’s request for reopening. The Court has not been informed as to whether the respondent had filed an appeal against this decision. 25. Following two remittals, the applicant’s request in respect of his salary and other benefits appears to be still pending at first instance. 26. Following the applicant’s reinstatement upon the judgment of 30 July 1999 (see paragraph 18 above), on 31 August 2001 the head of joint services at the Ministry (Načelnik uprave za zajedničke poslove Ministarstva) gave a decision dismissing the applicant, as criminal proceedings had been instigated against him (see paragraph 31 below) 27. On 4 October 2001 the Assistant Minister/Head of the Public Security Department (pomoćnik Ministra – Načelnik resora javne bezbednosti Ministarstva unutrašnjih poslova) upheld the decision of 31 August 2001. 28. On 23 October 2001 the applicant filed another lawsuit against the respondent, requesting that the decisions of 31 August and 4 October 2001 be annulled. 29. Following a remittal, on 29 January 2002 the Municipal Court decided to stay these proceedings pending the final outcome of the first and second sets of proceedings, as joined on 26 December 2001 (see paragraph 21 above). 30. In the course of the examination of the applicant’s claims the domestic courts established that since 15 January 2001 the applicant had been employed as head of security (rukovodilac službe obezbeđenja) at company J. (see paragraph 11 above). 31. On 23 March 1998 the Public Prosecutor in Smederevo indicted the applicant in connection with the same circumstances of releasing information to the director of company J. (see paragraph 11 above). 32. On 26 July 2002 the District Court found the applicant guilty of abuse of office (krivično delo zloupotrebe službenog položaja) and sentenced him to three months in prison, suspended for one year. 33. On 3 April 2003 the Supreme Court upheld the judgment of 26 July 2002. 34. Article 34 of the Act provided that, as well as general requirements for employment in the civil service, a candidate for employment with the Ministry must have no criminal convictions or criminal proceedings pending against him or her for any abuse of office or other crime which is prosecuted ex officio. 35. The Police Act entered into force on 29 November 2005, repealing the 1991 Act. Similar to the provisions of the 1991 Act, Article 110(3) of the 2005 Act envisages that a person convicted of a crime which is prosecuted ex officio cannot be employed by the Ministry. In addition, Article 114 of the 2005 Act provides that should an employee of the Ministry be convicted of a crime that is prosecuted ex officio, the court must serve any final judgment on the Ministry, so that a decision on that employee’s dismissal can be prepared.
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train
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001-57476
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ENG
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DEU
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CHAMBER
| 1,982
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CASE OF ECKLE v. GERMANY
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Preliminary objection rejected (victim);Violation of Art. 6-1;Just satisfaction reserved
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9. In 1952 Mr. Hans Eckle, who was born in 1926, founded the building firm of "Hans Eckle, timber, steel and building materials" at Püttlingen (Saarland), and worked there with his wife, Marianne. He subsequently set up several branches in other places and, in particular, a branch at Schweich, near Trier, in 1958, which was transferred shortly afterwards to Wittlich, and then in 1961 an office in Cologne. In 1962 he was employing about 120 people. The firm’s business consisted in supplying materials and, later, building sites on credit for people who wanted to build but had few financial resources. Such a system, which the applicant himself called the "Eckle system", had not hitherto been used in the building materials trade. He covered his financial needs - from 1962 at least - by loans from individuals, who were offered mortgages as security (Grundschulden). In 1965, however, he began to encounter difficulties in this regard and towards the middle of the following year he ceased payment to his creditors of the sums due to them. The overall total of money he owed amounted at the time to about ten million Marks. 10. The trade practices of the applicants from 1959 to 1967 were the subject of three separate sets of prosecutions in Trier, Saarbrücken and Cologne. The first and last of these are in issue in the instant case : the applicants complain that their duration exceeded the "reasonable time" referred to in Article 6 par. 1 (art. 6-1) of the Convention. In a case of this kind, it is necessary to set out in detail each stage of the impugned proceedings. 10. Acting on a complaint lodged on 28 October 1959 by a bank at Wittlich, the public prosecutor’s office began, in November 1959, a preliminary investigation (Ermittlungsverfahren) in respect of Mr. Eckle. On 22 February 1960, after it had obtained information from the Trier Bezirksregierung as to the existence of maximum prices in the building materials trade and without having questioned either the applicants or any witnesses, the prosecutor’s office stopped the investigation. Examination of the complaint was resumed with a fresh preliminary investigation prompted by the receipt in mid-August of a letter from the Trier Chamber of Industry and Commerce advising the public prosecutor that Mr. Eckle was promising to supply his clients with building materials "at average market prices" (handelsübliche Preise) whereas his prices were in fact 25 per cent higher. In September, the investigation was suspected pending the outcome of a civil action brought against Mr. Eckle by one of his customers, in which the concept of "average market prices" used by Mr. Eckle in his contracts would have to be clarified. These civil proceedings were concluded on 30 October 1962 with a judgment of the Koblenz Court of Appeal (Oberlandesgericht) holding that the applicant had charged prices higher than the average market prices, contrary to the commitments he had entered into with his customers. 12. Forty witnesses were interviewed between 1960 and 1962, and thirty-six witnesses in 1963. In 1964, the competent authorities held hearings of 133 witnesses, 15 of them outside the Land of Rhineland-Palatinate. The same year the applicant’s business premises were searched and business records (Geschäftsunterlagen) seized. These searches took place firstly on 4 March on an application from the Saarbrücken public prosecutor’s office but in the presence of two officials from Trier, and subsequently on 7 October on an application from the Trier public prosecutor’s office which, on 8 and 9 October, questioned Mrs. Eckle for the first time. In 1965, 325 witnesses were heard, 106 of them outside the Land. 13. One of the twelve public prosecutors (Staatasanwalt) at Trier, who was in charge of the investigation, was relieved of his other duties in January 1965 in order to allow him to devote himself entirely to the Eckle case. At the instance of the Minister of Justice of the Land, a special commission of five officers from the criminal police began assisting the public prosecutor from this date onwards so that the investigation could be intensified. Previously, as from April 1963, a member of the criminal police had been dealing specifically with the case. 14. On 9 September 1965, the public prosecutor’s office ordered the closure of the investigation, during which according to undisputed information provided by the Government - 540 witnesses had testified and nearly 3,000 documents - extracts from land registers (Grundbücher), contracts, bills, drafts, etc. - had been examined. The prosecutor’s office had made up 37 main files (Hauptakten) and 300 subsidiary files (Nebenakten), to which had been added 120 files relating to civil suits. 15. On 9 September likewise, the public prosecutor’s office informed the applicants and two former female employees of the Eckle firm that it intended to "indict" them. They were requested to give notice within two weeks if they wished to have, before their committal for trial, a "final hearing" by the public prosecutor’s office (Schlussgehör) under Article 169 b of the Code of Criminal Procedure (in force until 31 December 1974). On 20 September, two counsels for Mr. Eckle asked to be allowed to inspect the file before replying. After a conference with them on 12 October, the public prosecutor’s office notified them on 3 November that the file would be available to them at the secretariat until 20 November. The legal advisers acting for Mrs. Eckle and for the two employees did not respond. Accordingly, counsel were assigned to them officially but were replaced in December 1965 and January 1966 by counsel instructed by the parties themselves. In mid-December 1965, the public prosecutor’s office sent Mr. Eckle’s legal representatives a copy of the main sections of the file, as had been agreed a month earlier, and gave them until 2 February 1966 to decide whether or not they wanted a "final hearing". A further counsel appeared for Mr. Eckle on 1 February 1966, and then a fourth. They too asked for an opportunity to consult the file and for copies of certain documents in the file; in mid-March, they were given a deadline for stating whether they were requesting a "final hearing". Between 13 and 15 March, the seven counsel applied for a "final hearing" and for the original file to be made available to each of them beforehand for a period of six months. However, they withdrew their requests on 19 April and 9 May, respectively. 16. Once proceedings relating to the "final hearing" had thus been concluded, the public prosecutor’s office drew up the "bill of indictment" (Anklageschrift). Drafting of this was completed on 3 August and the typescript was sent to the First Criminal Chamber (1. Grosse Strafkammer) of the Regional Court (Landgericht) on 26 October. The "bill of indictment", which filled four volumes and comprised 793 pages in all, was directed against the applicants and the two former female employees of the Eckle firm. It alleged a total of 474 offences of fraud and extortion, listed almost 500 witnesses and mentioned more than 250 documents produced in evidence. Proceedings had been dropped by the public prosecutor’s office in respect of 68 cases, in 61 of them pursuant to Article 154 of the Code of Criminal Procedure. In the version in force until the end of 1978, this provision empowered the court (paragraph 2) and, until a "bill of indictment" had been preferred, the public prosecutor (paragraph 1) to take such a measure at any stage of the proceedings if, in particular, the sentence liable to be passed at the end of the proceedings was negligible in comparison with one already finally (rechtskräftig) imposed on the accused - or which the accused had to expect - for another offence. 17. On 23 December 1966, the public prosecutor in charge of the case conferred with the President of the Criminal Chamber about the duplications arising from criminal proceedings pending in Saarbrücken, where the trial hearing was due to begin on 17 March 1967 (see paragraph 58 below). 18. On 16 January 1967, the public prosecutor’s office withdrew the "bill of indictment" because it had learned of other possible offences and felt that further inquiries were necessary. On 22 August, the Cologne public prosecutor’s office, which had opened a preliminary investigation in respect of Mr. Eckle on 21 March (see paragraph 37 below), stated its willingness to deal with the new cases which the Trier public prosecutor’s office had begun to inquire into. As a result, the Trier public prosecutor’s office transferred these cases to Cologne on 15 March 1968 and on the same day preferred the "bill of indictment" - unchanged in any way - for a second time. Between 16 January 1967 and 8 February 1968, 234 fresh cases, of which 217 concerned the Saarbrücken and Trier public prosecutor’s offices, had been examined. 19. Between 26 March and 25 May 1968, the President of the First Criminal Chamber of the Regional Court took several steps to ensure that the accused were represented; on the last-mentioned of these dates, the Regional Court assigned to them four officially appointed defence counsel. On 30 May, the President drew the attention of the public prosecutor’s office to the fact that it had not yet offered the accused a "final hearing" in respect of the new cases. The prosecutor’s office replied on 11 June, pointing out that these cases had been transferred to Cologne (see paragraph 18 above). On 2 July, the Regional Court asked to be sent the "bill of indictment" drawn up by the Saarbrücken public prosecutor’s office (see paragraph 58 below): the Court was examining whether the numerous offences alleged against the applicants amounted to continuous conduct which had to be regarded as a single offence, in which event the prior conviction at Saarbrücken would preclude any further conviction. Three days later the Saaurbrücken public prosecutor’s office transmitted to the Regional Court a copy of the judgment of 17 October 1967 (see paragraph 58 below) and informed it that the files had been forwarded to the federal public prosecutor’s office (Bundesanwaltschaft) for the purposes of the proceedings for review on a point of law (Revisionsverfahren). In response to a request from one of the defence counsel for the applicants that he should be given copies of the file, the Regional Court, declared, inter alia, on 23 July 1968 that it remained to be decided whether the above-mentioned preferment of the "bill of indictment" could validly stand. On 19 August, the Regional Court sought information from the Saarbrücken public prosecutor’s office about the state of the proceedings; it stressed that it needed the "bill of indictment" it had asked for on 2 July. This was finally sent on 4 October by the Trier public prosecutor’s office, which urged at the same time that a decision be taken on the "bill of indictment" it had itself preferred. On 28 January 1969, the Regional Court admitted the latter "bill of indictment" (Zulassung der Anklage) and ordered that the trial open (Eröffnung des Hauptverfahrens). 20. Counsel for Mrs. Eckle having asked on 14 February 1969 for the file to be made available to him, the Regional Court replied on 18 February that copies would be forwarded to him. On the same day counsel for Mr. Eckle called on the Regional Court to quash the preferment of the "bill of indictment". On 16 April, counsel for Mrs. Eckle urgently requested the Regional Court not to take any action in the case before receiving the text of the judgment delivered on 14 March 1969 by the Federal Court of Justice (Bundesgerichtshof) in the matter of the Saarbrücken proceedings (see paragraph 58 below). The judgment was transmitted to the Regional Court on 29 April by the Saarbruüken public prosecutor’s office. On the previous day the Regional Court had refused to issue a warrant for the arrest of Mr. Eckle on the grounds that he was still subject to such a warrant in the Saarbrücken proceedings. On 28 May, it informed counsel for Mrs. Eckle, who on 16 April had complained that eight files were missing, that these related to proceedings which had been dropped. On 2 April, one of the officially assigned defence lawyers had asked the Court to revoke his appointment. In order to enable him to continue to act, the Regional Court suggested to the public prosecutor’s office on 30 September that it should ask for proceedings to be terminated in the case in which the lawyer in question had previously appeared in another capacity. On 14 October, the public prosecutor’s office made a request to this effect, which the Regional Court granted on 17 November. 21. On 14 October 1969, the public prosecutor’s office applied for a warrant for the arrest of Mr. Eckle who had been released from detention in relation to the Saarbrücken proceedings, but the Regional Court refused the application on 17 November. On appeal by the public prosecutor’s office, the Koblenz Court of Appeal quashed this decision on 28 January 1970 and issued a warrant for the arrest on the applicant. At the request of the public prosecutor’s office (6 February) the Cologne District Court (Amtsgericht) on 12 March served the warrant on Mr. Eckle who was in detention in Cologne in respect of the proceedings there (see paragraph 43 below). Mr. Eckle immediately appealed against the issuing of the warrant, but the Koblenz Court of Appeal dismissed the appeal on 2 April. 22. On 20 April 1970, the President of the First Criminal Chamber of the Trier Regional Court advised the relevant authority that the magnitude of the Eckle case was preventing him from handling other cases. On 1 June, he reached an agreement with his colleague at the Saarbrücken Regional Court as to the dates of the hearings to be held by their respective courts (see paragraph 58 below). On 2 July, he fixed the date of 11 November for the opening of the trial hearing and notified defence counsel accordingly. On 19 October, counsel for Mrs. Eckle withdrew a statement whereby, on 19 April 1968, he had waived his claim to certain costs and expenses, and requested the Regional Court to appoint him as defence counsel unconditionally. Four days later, counsel for Mr. Eckle applied for a postponement of the hearings, asserting that he dit not have enough time to prepare the defence. The Regional Court rejected both applications on 27 October. On 31 October, Mr. Eckle himself asked for the hearings to be postponed, pleading, inter alia, Article 6 par. 3 (b) (art. 6-3-b) of the Convention, but the Regional Court refused the request on 4 November. 23. The trial opened on 11 November. Mr. Eckle immediately sought an adjournment, and Mrs. Eckle suspension of the proceedings; the third defendant challenged two of the judges. The Regional Court dismissed the challenge on 17 November. On the same day, it excluded Mr. Eckle from the courtroom on grounds of his behaviour before the Court and, in answer to an objection raised by one of the co-defendants, affirmed its jurisdiction in the case. Two days later, it declined to grant a further application for an adjournment which Mr. Eckle had made on 17 November. On the same day, Mr. Eckle requested his release from detention; he and his wife went so far as to refuse to give their particulars, and counsel for the defence asked the Court for the author of the "bill of indictment" to be called as a witness so that certain points in it could be clarified. The public prosecutor who had drawn up the "bill of indictment" was heard on 26 November, after which all the defendants applied for the proceedings to be terminated. Mr. Eckle declared himself unfit to stand trial and sought a formal decision from the Regional Court on this matter. The "bill of indictment" and the prior order to commence the trial hearing were read out in court on 3 December. Prior to that, the Regional Court had ordered that prosecution in some of the cases should be dropped. It also refused the defendant’s applications for the discontinuance or suspension of the proceedings. On the same day, Mr. Eckle challenged three of the judges and asked the Regional Court to postpone the hearing in order to give him time to obtain the documents needed to support his challenge. On 10 December, Mr. Eckle was once more removed from the courtroom and sentenced to one day’s imprisonment for his behaviour before the Court: he had insulted the President and thrown paper at him. In evidence to the Regional Court, a doctor who had examined the applicant considered him fit to stand trial, although stating that it would be necessary to keep the applicant under observation before being able to give a final opinion. The Regional Court thereupon decided that Mr. Eckle should provisionally be placed in a psychiatric hospital with a view to a medical report being made on him; the hearing was adjourned sine die on 17 December. 24. The psychiatric examination was completed on 23 January 1971 and the medical report filed on 20 February. According to the doctor, the applicant’s behaviour during the hearings was not the result of any illness. Between 24 February and 26 March, hearings took place in the Saarbrücken proceedings, which ended on the latter date with the conviction of Mr. Eckle (see paragraph 58 below). 25. On 16 June, hearings resumed before the First Criminal Chamber of the Trier Regional Court, the President of which had been replaced in December 1970; the hearings continued until 17 March 1972. During the 28 days of hearings, the Regional Court heard approximately 110 witnesses, including an expert witness, and more than 500 documents were read out. According to the undisputed account of the proceedings furnished by the Government, Mr. Eckle challenged judges on twenty occasions - sometimes twice on the same days - and his wife did so some ten times. Furthermore, he objected to the composition of the Regional Court, challenged two experts, introduced ten motions to take evidence (Beweisanträge), requested his release from detention ten times and suspension of the trial four times. Five times he claimed to be unfit to stand trial and requested a medical examination; on five occasions the Regional Court took evidence from a doctor who, on one of these occasions, judged the applicant to be incapable of attending court for the rest of the day. On seven occasions Mr. Eckle was sentenced to two or three day’s imprisonment on account of his behaviour and he was eight times removed from the courtroom for several days, notably in the period from 18 October 1971 to 19 January 1972. According to the same account, Mrs. Eckle for her part submitted motions to take evidence on three occasions; she applied three times to the Regional Court for the instructions given to the counsel officially assigned to defend her to be withdrawn, twice for the trial to be suspended, twice again for it to be discontinued and on three occasions for the appointment of a second lawyer. 26. On 23 November 1971, the Regional Court terminated the proceedings, pursuant to Article 154 of the Code of Criminal Procedure (see paragraph 16 above), in respect of more than 400 of the counts in the "bill of indictment". 27. On 17 March 1972, Mr. Eckle was sentenced to imprisonment for four years and six months, his wife to a term of eighteen months and the two co-defendants to ten and six months respectively. At the same time, the Regional Court discharged the warrant for the arrest of the applicant. The Regional Court’s judgment found Mr. Eckle guilty of fraud committed jointly with other persons to the detriment of customers in forty-two cases and to the detriment of creditors in sixteen cases, and of attempted fraud in one case concerning a creditor. On two charges relating to a customer and a creditor respectively he was acquitted. The Court terminated proceedings in three cases because they were time-barred. Mrs. Eckle was convicted of fraud committed jointly with other persons in thirty-nine cases to the detriment of customers and in sixteen cases to the detriment of creditors, and of attempted fraud in one case involving a creditor. The Court acquitted her on the same two counts as her husband and terminated proceedings in six cases, including the three cases that also concerned her husband. According to the findings in the judgment, the conclusion of the illegal contracts dated back to 1959-1960 in respect of the customers and 1962-1964 in respect of the creditors. When deciding the sentences the Regional Court took into account, inter alia, "to the advantage of all the defendants", "the inordinate length of time during which they had been exposed to the drawbacks and unpleasantness of the investigation and trial proceedings, something which was not wholly their own fault". The judgment - which ran to 236 pages - was served on the applicants on 12 February 1973 that is a little less than eleven months after its delivery. 28. Whilst the trial hearing was continuing, an auxiliary chamber (Hilfskammer) specially set up to relieve the First Criminal Chamber dealt with all the other cases allocated to the latter. 29. The four persons convicted petitioned for review on a point of law (Revision). In this connection, between 27 February and 8 March 1973 Mr. and Mrs. Eckle submitted several memorials to the Federal Court of Justice, alleging various errors in law as well as procedural irregularities. After the counter-memorial by the Trier public prosecutor’s office had been drafted on 31 October, the file was sent to the federal public prosecutor’s office on 28 November. 30. On 4 February 1974, the federal public prosecutor’s office noticed that it was not clear from the file how eight of the cases heard by the Regional Court had been disposed of. When consulted on this, the Trier public prosecutor’s office pointed out that most of the obscurities arose from inaccuracies in the minutes of the hearings, while in two cases the failure to cease prosecution was due to inadvertence. The matter was referred to the Trier Regional Court, which decided on 22 February and 4 March to rectify the minutes and terminate the proceedings relating to the two cases in question. On 6 March, the Trier public prosecutor’s office returned the file, together with a supplementary report, to the federal public prosecutor’s office and at the latter’s request also forwarded the "bill of indictment" of 19 March. 31. On 1 August 1974, the federal public prosecutor’s office requested the Trier public prosecutor’s office to reply in writing to the applicant’s objections to the composition of the Regional Court and, in particular, to produce the official statements of the judges concerned and the charts showing the allocation of business in 1971. After taking - between September and December 1974 - statements from eleven judges (some of whom were no longer in Trier), the public prosecutor’s office sent them to the federal public prosecutor’s office on 29 January 1975 together with comments. On 21 February, it transmitted some further documents which the federal public prosecutor’s office had asked for on 4 February. 32. On 7 April 1975, the applicant’s new lawyer applied for the proceedings to be dropped as being time-barred. On 24 April, the member of the federal public prosecutor’s office dealing with the case requested the President of the Second Division (Senat) of the Federal Court of Justice to set down a date for the opening of the hearing: in his submission, the proceedings were not time-barred. On 2 December, the President directed that the hearing should be held on 11 February 1976. Mrs. Eckle’s new defence counsel submitted supplementary written pleadings on 26 February 1976; and on 4 February, one of the two co-defendants withdrew her petition for review on a point of law. 33. Following the hearing on 11 February, the Federal Court of Justice dismissed the petitions on 19 February. At the end of the judgment, the Federal Court recalled that cumulative sentences (Gesamtstrafe) combining those passed in Trier and in Saarbrücken (see paragraph 58 below) remained to be determined. In this connection, it stated, inter alia: "Excessive length of criminal proceedings may - and the Regional Court did not overlook this - constitute a special mitigating circumstance (Entscheidungen des Bundesgerichtshofes in Strafsachen, vol. 24, p. 239). When a cumulative sentence has to be determined retrospectively, this consideration must likewise apply to the period which has already elapsed between the hearing before the trial court and the moment when the principle of res judicata took effect in respect of the judgment, and which will continue to elapse until the final decision. Attention must also be drawn in this case to the special burden imposed on the defendants by the dividing up of groups of cases consisting in the repeated commission of similar offences into two sets of criminal proceedings. The Court is not required to rule on the merits of this allocation. It considers, however, that the spirit of the law would be lost sight of ... if, when determining sentence, this circumstance were not clearly (deutlich) taken into account." 34. On 24 and 28 May 1976, Mr. and Mrs. Eckle applied to the Federal Constitutional Court (Bundesverfassungsgericht). Challenging the judgments of both the Federal Court of Justice and the Trier Regional Court, they alleged a violation of sections 1, 2, 3, 19 par. 4 and 103 of the Basic Law (Grundgezetz), mainly on account of the excessive length of the trial and of the existence of three distinct sets of proceedings. On 30 June 1977, a bench of three members of the Constitutional Court decided not to hear the applications; it judged that they did not offer sufficient prospects of success. 35. On 24 November 1977, the Trier Regional Court fixed cumulative sentences combining those it had pronounced itself and those imposed by the Saarbrücken Regional Court (see paragraphs 27 above and 58 below). The new sentences fixed were: imprisonment for seven years in the case of Mr. Eckle and for two years and eight months in the case of his wife. Acting on submissions dated 19 October from the Trier public prosecutor’s office, the Court suspended for five years that part of Mr. Eckle’s sentence which was in excess of five years and eleven days, and suspended for two years that part of Mrs. Eckle’s sentence which was in excess of one year and four months. In the grounds given for its decision in respect of Mr. Eckle, the Trier Regional Court repeated the above-quoted reasoning of the Federal Court of Justice (see paragraph 33 above). It appeared to the Court that the long duration of the criminal proceedings should be taken into account in Mrs. Eckle’s favour too. 36. On 23 January 1978, the Koblenz Court of Appeal dismissed an "immediate appeal" (sofortige Beschwerde) entered by each of the applicants, on 1 and 2 December respectively, against the Regional Court’s decision. The Court of Appeal held, inter alia: "... the Criminal Chamber rightly regarded the excessive length of the criminal proceedings and the separation of groups of comparable cases into several acts of proceedings as a special mitigating circumstance and it took account of this when determining sentence (Echtscheidungen des Bundesgerichtshofes in Strafsachen, vol. 24, p. 239). Its dicta on this point are comprehensive, sensible and in accordance with the principles laid down by the Federal Court of Justice in its judgment of 19 February 1976 in the instant case ... [The Court of Appeal] too is of the opninion that these reasons justify a cumulative sentence of [seven years for Mr. Eckle and two years and eight months for Mrs. Eckle]. Even having regard to Article 6 (art. 6) of the Convention ..., this sentence does not appear to be unduly severe (ibid, vol. 24, p. 239). Considering also the culpability (unter Abwägung auch der Schuld) of the defendants, a reduction of sentence does not seem appropriate ..." According to the Government, Mr. and Mrs. Eckle thereupon applied to the Federal Constitutional Court which rejected their applications. 37. On 21 March 1967, the Cologne public prosecutor’s office began a preliminary investigation of Mr. Eckle, who was suspected of having committed, inter alia, various frauds. From 29 March onwards the investigation - which had been commenced ex officio following the appearance of a number of articles in the press - was extended to cover several complaints lodged in February and March by purchasers of building materials and persons who had made loans to the Eckle firm. The Cologne proceedings comprised five groups of charges in all (see paragraph 80 of the Commission’s report): (a) They covered first of all a complex of frauds against customers of the Eckle firm who had allegedly suffered losses after the latter had gone bankrupt. The persons concerned in this part of the proceedings were the applicants, the two close collaborators who were later convicted at Trier (see paragraph 27 above), a tax consultant, two architects and a building expert. (b) The second group concerned the "Hobby-Bau GmbH" company in Frankfurt. The object of this company, which was founded in 1965 by two former employees of the applicants, was to carry on the Eckle firm’s business activities in the Frankfurt area. Mr. Eckle was supposedly in control of this company; his wife had been given power of disposal over its assets. The company had ceased payments at the end of 1966, and in December 1967 bankruptcy proceedings were commenced. (c) The third group of charges was connected with Mr. Eckle’s relations with a Mr. Neubeck of Cologne and the companies he controlled, and in particular their financial and trading operations, with alleged transfers of property to Liechtenstein and Switzerland, and with the bankruptcy of the Neubeck companies; proceedings in respect of the latter were, however, severed from the rest. (d) The fourth group dealt with the business relations of the Eckle firm or the Hobby-Bau GmbH company and its manager with an accountant and two companies both called Westropa-Bauservice, whose head offices were in Zug (Switzerland) and Munich. (e) The fifth group related mainly to the Eckle company; the applicants, those of their employees accused with them and other persons were suspected of having committed either as principals, co-principals or accessories offences of fraudulent bankruptcy and tax evasion. During 1967 and 1968, the investigation was widened to cover thirteen persons other than the applicants. 38. At the request of the public prosecutor’s office, the Cologne District Court (Amtsgericht) issued a search and seizure warrant in respect of the applicants on 25 April 1967. The police thereupon searched the business premises of the Eckle company on 11 and 12 May. They seized four metric tons of documents which the public prosecutor’s office made available to an accountant (Wirtschaftsprüfer) whom it had appointed as a consultant the previous month. Also in May a special commission was set up composed of a public prosecutor and three police officers who were specialists in investigating economic crime; this commission worked exclusively on the Eckle case and continued in existence until May 1972. According to the account of events provided by the Government, between 1967 and 1972 the relevant authorities applied for, authorised and, with a few exceptions, performed numerous searches of the offices and private dwellings of the applicants and some of their co-accused, the offices of other companies and the offices of more than thirty-five banks; in addition, they seized a mass of documents. In 1967: such measures were carried out on 23 May, at Völklingen; on 20 and 21 July, in Cologne; on 25 July, at Püttlingen; and on 24 and 25 August and 14 October, in Frankfurt; on 30 January, at Steinau; on 6 and 7 February, in Cologne; on 16 February, in Frankfurt; in 1968: on 29 January, in Frankfurt; on 18 and 22 February, at Miesbach and in Munich; on 8 March, in Frankfurt; on 15 March, in Düsseldorf and Essen; on 15 and 16 March, in Frankfurt; from 1 to 4 April, at Völklingen and in Saarbrücken; on 2 April in Munich; on 10 April, in Augsburg; on 18 and 19 April, in Frankfurt; on 6 and 7 May, in Saarbrücken and at Wittlich; on 15 May, in Trier; on 24 June, at Seligenstadt; on 23 July, in Munich; on 19 September, in Kassel; from 1 to 5 October, in Munich; on 11 November, in Frankfurt; on 3 and 4 December, in Hamburg; and on 12 December, in Cologne; in 1969: on 30 January in Frankfurt and Darmstadt; on 8 April, at Völklingen; on 11 and 24 April, in Saarbrücken; on 14 June, in Cologne; on 24 and 26 November, at Ottweiler; on 25, 26 and 27 November, at Saarlouis and Bous; on 1 December at Bous; and on 11 December, in Saarbrücken and at Saarlouis; in 1970: on 6 August, in Saarbrücken and at Gersweiler; and on 30 November, in Frankfurt; in 1971: on 19 April, in Saarbrücken; and on 20 April, at Saarlouis; and in 1972: on 14 April, in Munich. The appeals which the parties concerned lodged from time to time (for example, on 31 July and 13 and 29 September 1967 and on 26 September and 14 October 1969) were dismissed, except for the second one, which was partly allowed on 4 October 1967 by the Cologne Regional Court. 39. The prosecutor in charge of the investigation conferred on 9 and 16 May 1967 with the criminal investigation police about coordination of action and, on 16 May, with the consultant whom he instructed to carry out certain tasks (Teilgutachten). On 10 August, he requested the criminal investigation police to question four witnesses about certain specified points, and, on 16 August, he sent further documents to the consultant. On 22 August, he assumed responsibility for a number of cases and agreed to the transfer of those which the Trier public prosecutor’s office had begun to inquire into (see paragraph 18 above). Seven days later, he requested the public prosecutor’s offices in Frankfurt and Offenburg to forward to him various file of which he had copies made on 18 September. During the months that followed, the prosecutor took over a number of preliminary investigations which had begun elsewhere: three of them on 10 October, 207 on 10 November, five on 11 December, two on 11 January 1968 and three on 8 February 1968. On 15 February 1968, he asked the federal office of the criminal investigation police (Bundeskriminalamt) to make inquiries into a company in Switzerland and four others in Liechtenstein which he suspected were being run by Mr. Eckle and his fellow accused Neubeck. On 11 and 20 June, he asked for certain inquiries to be made by the criminal investigation police in Dudenhofen, Kassel and other places, and circulated a letter written in May and containing a list of questions to numerous foreign companies and individuals residing abroad who had allegedly suffered loss. On 20 June too, he summoned a witness in order to have him questioned by the criminal investigation police; other witnesses made statements on 24, 25 and 27 July. At the request and in the presence of the public prosecutor’s office, one of the co-accused was questioned on 18 September by a judge from the Seligenstadt District Court; another co-accused was similarly questioned on 4 October. 40. On 29 November 1968, the public prosecutor’s office instructed the consultant it had appointed in 1967 (see paragraph 38 above) to produce an expert opinion on seven listed points, including the history of the Hobby-Bau GmbH company and its relations with the Westropa company. On 23 July 1969, it sent him other documents for the purpose. 41. On 10 January and 23 July 1969, four preliminary investigations in respect of Mr. Eckle which had been begun notably in Saarbrücken, Frankfurt and Trier were transferred to the Cologne public prosecutor’s office, which on 20 February made inquiries of the local authorities of six municipalities concerning the purchase of land by the Hobby-Bau GmbH company and at the same time asked for the production of the land registers of the relevant district courts. On 31 March and 8 July prosecutor’s office heard the applicant informally for information purposes. On 16 April and 19 June, it summoned witnesses in Saarbrücken and Saarlouis for questioning; on 18, 21 and 22 April, it advised the public prosecutor’s office in Saarbrücken and Koblenz of the purpose of the investigation and of a number of inquiries made and still to be made. On 14 May, the Trier public prosecutor’s office sent to Cologne nine volumes of the file on the proceedings in Trier; these were returned by the Cologne office on 6 June. On 9 June, the latter asked the presiding judges of the District Courts of Cologne and Völklingen to provide it with a list of the seizures which had been made in respect of the Eckle firm and the applicants. In July, August and September, the public prosecutor’s office instructed the criminal investigation police in Mannheim, Saarbrücken, Berlin and Hamburg to make inquiries into life-insurance policies which Mr. Eckle had taken out with a number of companies; sought information from an insurer in Saarbrücken; obtained the opinion of the Federal Banking Supervisory Office (Bundesaufsichtsamt für Kreditwesen); and applied for the files concerning the land register at Völklingen. 42. According to the report of the Commission, from March 1967 to August 1968 statements were taken from about 832 creditors, from the majority of some 3,500 purchasers of building materials from the Eckle company and from a large number of other witnesses or employees; and the Eckle company’s accounts with some twenty-five credit institutions were examined. Until October 1969 the investigation was focused on the alleged frauds committed by the accused to the detriment of 832 creditors and 3,590 purchasers of building materials. 43. As requested by the public prosecutor’s office on 13 November 1969, the Cologne District Court issued, five days later, a warrant for the arrest of two co-accused and Mr. Eckle. The latter was remanded in custody on 25 November and he remained in custody on that basis until 5 September 1970; from the next day onwards in accordance with a decision taken by the District Court on 1 September, he was detained on the basis of the warrant for his arrest which the Koblenz Court of Appeal had issued on 28 January 1970 in the proceedings at Trier (see paragraph 21 above). The applicant several times appealed unsuccessfully to the Cologne District Court, Regional Court and Court of Appeal against the issue of the arrest warrant on 18 November. 44. During the latter period, that is between December 1969 and September 1970, the Cologne public prosecutor’s office heard Mrs. Eckle (12 December); discussed the progress of the proceedings with the public prosecutor’s office in Saarbrücken (26 January 1970) which, by mutual agreement, transferred to Cologne an investigation in respect of one of the other persons accused (5 March); had four witnesses summoned in Saarbrücken (20 May); and set dates for the hearing of a number of people, notably in Saarbrücken, Frankfurt, Ahrweiler and Hamburg (21, 22, 28 and 30 July, 26 August). On 30 July 1970, the consultant’s terms of reference were widened, and the consultant informed the public prosecutor’s office 11 August that an expert opinion could not be produced before mid-1971. 45. On 1 September, the Cologne District Court refused to make available to Mr. Eckle the legal codes, books and periodicals and the 2,000 files which he had asked for. On 9 September, Mr. Eckle challenged a judge on the District Court, which rejected the challenge on 21 September as no grounds for it had been adduced. An appeal was dismissed on 4 December by the Cologne Court of appeal - two of whose judges Mr. Eckle had previously challenged - because he had not put forward any supporting reasons, although the Court had twice given him extra time to do so. 46. Continuing its investigation, the public prosecutor’s office proceeded to set dates for hearing a number of people itself, mainly elsewhere than in Cologne, or alternatively to request the appropriate criminal investigation police or courts to question them (24 and 26 November 1970, 18 and 19 January, 3 February, 30 March, 6, 7, 28 and 29 April 1971); business records of the Eckle company were examined, seized and sent to the consultant by the prosecutor’s office (12 to 14 May 1971); requests for the production of files were made to other courts, including the Federal Constitutional Court (24 May, 18 June, 19 July, 23 August, 29 September); information was sought from the Cologne Court of Appeal (24 May); and the Cologne Social Security Office was asked to make certain inquiries (18 August). On 13 August 1971, the consultant submitted an interim report on the Eckle company’s indebtedness, insolvency and suspension of payments. On 21 October, a doctor transmitted to the public prosecutor’s office an expert opinion, which it had requested on 4 October, on Mr. Eckle’s fitness to stand trial. 47. On 21 November, Mr. Eckle applied, amongst other things, for the warrant for his arrest to be revoked. The Cologne District Court refused the application on 30 November. On appeal, the Cologne Regional Court on 13 December 1971 and then the Cologne Court of Appeal on 17 January 1972 upheld that decision. Between January and April 1972, the public prosecutor’s office summoned, or caused to be summoned, a number of witnesses, Mrs. Eckle and other accused persons so that they could make statements (notably on 6 January 1972, 1, 17 and 28 February and 3 and 8 March) and on 22 March requested another doctor to give his opinion on Mr. Eckle’s fitness to stand trial. From 17 March 1972, the day he was convicted in the Trier proceedings (see paragraph 27 above), the applicant was detained on remand under a warrant issued, and subsequently confirmed on 8 May, by the relevant Cologne court. On 2 June, the same court decided to suspend Mr. Eckle’s remand in custody to enable him to serve the sentence passed on him on 26 March 1971 by the Saarbrücken Regional Court (see paragraph 58 below). The Cologne Regional Court dismissed appeals by Mr. Eckle on 22 June and 20 November. 48. The public prosecutor’s office completed the investigation on 10 May 1972 and on the same date dropped the prosecutions against some of the co-accused. It asked the Cologne Regional Court on 14 June to assign two official defence counsel, in particular for Mr. Eckle. On 20 June, the Court appointed one of them - Mr. Muhr to whom the public prosecutor’s office sent a copy of the files and other documents on 14 August and 2 October - but refused Mr. Eckle’s request that it should nominate Mr. Becker, who had defended him in the trial at Trier. An appeal by Mr. Eckle against this latter decision was dismissed on 20 November. On the same day, the Regional Court discharged Mr. Muhr from his duties and replaced him as official defence counsel by the applicant’s lawyer, Mr. Preyer, to whom it had already sent the main files, among other things, on 13 November. On 20 June, the consultant had filed his final report on the Eckle firm; four months later he submitted one on the Hobby-Bau GmbH company. On 17 July, the public prosecutor’s office had called on the applicant and his fellow accused to state by 30 August whether they wanted a "final hearing". This time-limit was extended on 31 August, and Mr. Eckle subsequently replied affirmatively on 18 September. 49. On 11 and 17 July 1972, Mr. Eckle had challenged two judges on the Regional Court. After giving him an ultimate deadline until 15 September to state his grounds, the Regional Court rejected his challenges on 2 November; a subsequent appeal, for which he was granted extra time to put forward his reasons, was likewise dismissed on 6 April 1973. On 14 November 1972, the Cologne District Court decided to confirm the authorisation to serve the sentence passed on Mr. Eckle by the Saarbrücken Regional Court (see paragraphs 47 above and 58 below). An appeal lodged by Mr. Eckle on 30 November, for which he had asked to be given until 31 January 1973 to state his reasons, seems to have been unsuccessful. On 12 December, the public prosecutor’s office sent copies of files to counsel for the defence for inspection. Between November 1972 and March 1973, Mr. Eckle lodged several other applications and appeals whose purpose is not apparent from the same time he asked the competent authorities to grant him extensions of time in order to formulate the grounds for his applications. 50. On 1 March 1973, the public prosecutor’s office set the date of 13 March for the "final hearing" of Mrs. Eckle and, pursuant to Article 154 of the Code of Criminal Procedure (see paragraph 16 above), dropped the charges of fraud in a number of cases. The hearing of Mrs. Eckle took place on the appointed day. On the next day, Mr. Eckle, acting through his defence counsel, waived his right to a "final hearing", but on 28 March his lawyer applied for one, explaining that the waiver had been due to a misunderstanding. As on the same day the prison doctor expressed the opinion that the state of the applicant’s health made him unfit to appear, the hearing was adjourned. 51. On 29 March 1973, Mr. Eckle sought an extension of time to submit reasons in support of a number of his appeals; lodged two fresh appeals against decisions of the Regional Court; and challenged the presiding judge of the Ninth Criminal Chamber. The time-limit originally allotted to him for stating his grounds for the challenge was to have expired on 30 April, but the Regional Court agreed to put the deadline back to 31 May, then to 30 June, to 31 July and, finally, to 31 August. On 6 April 1973, Mr. Eckle applied to the District Court for Mr. Preyer’s instructions to be withdrawn and for Mr. Becker to be assigned as official defence counsel, and asked also for three day’s leave of absence (Urlaub); these applications were refused on 6 June. On 9 July, his defence counsel asked the District Court to discharge the warrant for his client’s arrest; the District Court refused this request on 23 July. On 3 September, Mr. Eckle stated that he would not agree to attend the "final hearing" so long as Mr. Preyer remained responsible for his defence. Mr. Preyer, however, said on 19 September that his client still wished to have such a hearing, but wanted first of all to confer with other defence counsel. He accordingly requested that the hearing should be postponed for three weeks. On 19 September too, the prosecutor concerned set down 24 September as the date for the hearing. On that date he went to the prison where Mr. Eckle was being detained. Mr. Eckle, however, declared that he was unfit to undergo the hearing and unwilling to give an account of himself, whilst at the same time refusing to be examined by a medical expert. 52. On 25 September, the public prosecutor’s office preferred the "bill of indictment" before the Cologne Regional Court after deciding not to proceed with the charges in a large number of individual cases. Four people, including the applicants, were "indicted". The applicants were charged with fraudulent bankruptcy, tax evasion and fraud; Mr. Eckle, alone or with others, was charged with the latter offence in 55 cases, and Mrs. Eckle, alone or together with others, in 27 cases. The "indictment", which ran to 432 pages, mentioned 3 experts and 143 witnesses. On 15 and 16 October, the public prosecutor’s office filed with the Regional Court 14 volumes of appendices, various subsidiary files (Beiakten) and experts’ reports. 53. The presiding judge of the Sixth Criminal Chamber of the Regional Court notified the parties concerned and their defence counsel of the "bill of indictment" on 16 October 1973 and set a time-limit for the submission of any comments by them. Extensions of time were granted on several occasions, notably on 7 March 1974; a final request for extension was, however, refused by the Regional Court on 21 June 1974. Having once more been in detention on remand since 21 November 1973 under an arrest warrant issued by the appropriate Cologne court, Mr. Eckle applied on 7 December for his release from custody; he was released on 10 January 1974. On 28 January 1974, the Regional Court transmitted the whole of the file to the Federal Constitutional Court, which had requested it on 16 January; the file was returned by the Constitutional Court on 26 February. Four days previously, Mr. Becker - of the Trier Bar - had requested the Regional Court to appoint him officially as the applicant’s defence counsel; the Regional Court rejected this request on 7 March. On 19 March, 3 April and 24 and 30 May, counsel for one of the co-accused requested, inter alia, to have parts of the file and other documents made available to him for a short period. He also asked for variation of a 1970 decision granting his client conditional release, for further inquiries and for a preliminary judicial examination (Voruntersuchung). The Court allowed at least the penultimate application (29 May and 1 July). On 11 August, the same lawyer submitted written pleadings, on which the consultant commented on 12 December. On 9 January 1975, the counsel who had made the applications of 19 March, 3 April and 30 May 1974 discussed them with the responsible prosecutor, after which he withdrew the application of 30 May. The file on the case, which was at the public prosecutor’s office, was returned to the Regional Court. In a note entered in the file on 22 May, the presiding judge of the Tenth Criminal Chamber of the Regional Court commented that the trial would probably last for about a year. On 21 January 1976, one of the applicant’s co-accused, whose case had been severed from theirs, applied for the return of certain documents, but the Regional Court refused this on 10 March; between 13 March and 26 September he filed various other applications. On 16 September, the Regional Court opened the trial proceedings (Hauptverfahren) in respect of the applicants and the two other persons who had been "indicted" with them, and notified them accordingly. 54. On 19 October 1976, Mr. Eckle requested the Regional Court to discharge the warrants for his arrest which had been issued by the Cologne District Court and Regional Court (see paragraphs 43 and 53 above); these requests were refused on 3 February 1977. Earlier, on 3 January 1977, the public prosecutor’s office had informed the Regional Court that cumulative sentences remained to be determined combining those passed by the Regional Courts of Saarbrücken and Trier, but that no decision could be taken for the time being as the file was with the Federal Constitutional Court for the purposes of an application lodged by Mr. Eckle. On 31 August, the Regional Court inquired of the public prosecutor’s offices in Saarbrücken and Trier whether, amongst other things, cumulative sentences had been determined in the meantime. 55. At the request of the public prosecutor’s office (14 September 1977), the Regional Court on 21 September made an order, pursuant to Article 154 of the Code of Criminal Procedure (see paragraph 16 above), discontinuing the proceedings against the applicants; the latter had consented thereto. At the same time, the Regional Court revoked the arrest warrants mentioned above (at paragraph 54) and directed that the applicants should themselves meet their own expenses, while the court costs would be borne by the State. In accordance with the public prosecutor’s submissions, the Regional Court did not award the applicants any compensation; on 27 December 1979, it refused a subsequent request by Mr. Eckle and this decision was upheld by the Cologne Court of Appeal on 6 February 1980. 56. Following an order for separate trials, the prosecutions against eleven of the thirteen co-accused were discontinued during the course of proceedings either in pursuance of Article 154 of the Code of Criminal Procedure (see paragraph 16 above) or for lack of adequate evidence or because of the intervening death of those concerned. The two remaining co-accused were, for their part, sentenced by the relevant courts to various penalties between 1970 and 1980; in their cases also, separate trial had been ordered. 57. The criminal prosecutions brought against Mr. and Mrs. Eckle in Saarbrücken are not in issue, but they need to be mentioned because of their bearing on the proceedings in Trier and Cologne. 58. Towards the end of 1963, the public prosecutor’s office in Saarbrücken began a preliminary investigation in respect of the applicants. They were suspected of having defrauded clients in the Saar in transactions of the kind that were later the subject of prosecutions in Trier and, in part, in Cologne. After being "indicted" with others in March 1965, they were convicted by the Saarbrücken Regional Court on 17 October 1967 on 99 counts of fraud: Mr. Eckle was sentenced to six years’ imprisonment and his wife to a term of three years and six months. On petitions for review on a point of law, the Federal Court of Justice quashed the convictions on 14 March 1969 and remitted the case to another chamber of the Regional Court. On 19 February 1970, after eight days of hearings, the latter chamber sentenced Mrs. Eckle to two years’ imprisonment on 74 counts of fraud. Mr. Eckle, whose trial had had to be severed from his wife’s, was convicted on 26 March 1971 after hearings that had commenced on 24 February; the Regional Court found him guilty on 68 counts of fraud and sentenced him to four years’ imprisonment. A fresh petition for review on a point of law by the parties concerned was dismissed by the Federal Court of Justice on 20 April 1972. 59. The sentences passed by the Saarbrücken Regional Court were combined on 24 November 1977 with those imposed on 17 March 1972 by the Trier Regional Court (see paragraphs 27 and 35 above). 60. In the course of the proceedings against him Mr. Eckle spent approximately five years in detention on remand. The various courts placed reliance on a risk of his absconding and tampering with evidence.
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train
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001-86087
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ENG
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UKR
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ADMISSIBILITY
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GURZHYY v. UKRAINE
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Inadmissible
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
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The applicant, Ms Galina Ivanovna Gurzhyy, is a Ukrainian national who was born in 1940 and lives in Energodar, the Zaporizhzha region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The applicant is a pensioner. She has no home telephone line. In 1999 Mr D. fatally injured the applicant’s son in a car accident in the town of Zaporizhzha, 130 kilometres away from the applicant’s home town. On 7 August 2001 the applicant instituted civil proceedings against Mr D., seeking non-pecuniary damages and funeral expenses. On 4 December 2001 the Leninsky District Court of Zaporizhzha (Ленінський районний суд м. Запоріжжя – hereafter “the Leninsky Court”) awarded the applicant 3,105 hryvnyas (UAH) in respect of the funeral expenses and dismissed the remainder of her claims. On 13 May 2003 the Zaporizhzha Regional Court of Appeal (Апеляційний суд Запоріжської області – hereafter “the Court of Appeal”) upheld that judgment on an appeal by the applicant. In June 2003 the applicant, acting without legal representation, appealed in cassation to the Supreme Court. In accordance with the procedural rules applicable at the material time, the cassation appeal was lodged with the first-instance court, which was to rule on its compliance with the procedural formalities. On 18 August 2003 the Leninsky Court found numerous procedural shortcomings in the applicant’s cassation appeal and gave her a time-limit by which to rectify them. The applicant provided a corrected version of the cassation appeal; however, on 10 October 2003 the Leninsky Court decided to return her submissions as “not lodged,” having found that the applicant had not rectified the shortcomings properly. On 25 October 2003 the applicant appealed against the decision of 10 October 2003. On 9 December 2003 the Court of Appeal dismissed her appeal. On 19 December 2003 the applicant requested the Court of Appeal to mail her a copy of the decision of 9 December 2003. On 15 January, 27 April, 17 May and 31 July 2004 the applicant addressed the same request to the Leninsky Court. She sent her requests by registered mail, enclosing with each one an empty stamped envelope for a reply. Having received no response, the applicant complained to the Human Rights Ombudsman (Уповноважений Верховної Ради України з прав людини). On 19 August 2004 the Office of the Ombudsman informed the applicant that her complaint had been transferred to the Zaprorizhzha Regional Council of Judges (Рада Суддів Запорізької області – hereafter “the Council of Judges”) for consideration. On 13 September 2004 the Council of Judges informed the applicant that on 3 September 2004 the Leninsky Court had mailed her a copy of the requested decision. On 30 September 2004 the applicant received the decision of 9 December 2003 and on 26 October 2004 lodged a cassation appeal against it with the Supreme Court. On 10 November 2004 the Supreme Court informed the applicant that it had mailed her cassation appeal to the Leninsky Court for a ruling on its compliance with the procedural formalities. According to the Government, on 16 November 2004 the Leninsky Court found that the applicant’s cassation appeal had procedural shortcomings: she had, in particular, failed to indicate the scope of the appeal and to provide proper references to the decision appealed against or the law allegedly misinterpreted by the lower courts. The court gave the applicant a time-limit of 10 December 2004 by which to rectify these shortcomings. This decision was despatched to the applicant on 17 November 2004. On 20 December 2004 the Leninsky Court decided to return the applicant’s cassation appeal as “not lodged” as she had failed to rectify the shortcomings in issue. This decision was despatched to her on 21 December 2004. The Government presented copies of the aforementioned decisions and of the covering letters, dated 17 November 2004 and 21 December 2004, in which the Leninsky Court had informed the applicant that it was enclosing them for her information. According to the applicant, she never received these letters. On 28 April 2006 the applicant requested the Leninsky Court to inform her of the status of her cassation appeal, sending her request by registered mail with an envelope for a reply. She has not received a reply. In accordance with Article 323 of the Code, cassation appeals were to be lodged with the first-instance court that had dealt with the case. Should the judge to whom the case had been allocated determine that the appeal had procedural shortcomings, he or she was to grant a time-limit by which to rectify them. The appeal was to be declared inadmissible and sent back to the appellant if the latter had not followed the instructions of the judge. The Code did not provide for any specific form of service of the respective decisions.
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