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train
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001-96480
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,009
|
DZANKOVIC v. GERMANY
| 4
|
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
The applicant, Mr Ramis Dzankovic, is a Macedonian national who was born in 1982 and is currently detained in Essen. He was represented before the Court by Mr U. Busch, a lawyer practising in Ratingen. On 4 April 2008 the Cologne Public Prosecutor’s Office opened preliminary investigations against the applicant suspected of intentional homicide (Totschlag) and murder (Mord). At that time the applicant had already been held in pre-trial detention in Essen on other grounds. On 21 April 2008 the Cologne District Court issued a search warrant in respect of the applicant’s person, vehicle and premises. The Cologne Regional Court dismissed the applicant’s appeal against that warrant. In the course of the investigation rogatory letters (Rechtshilfeersuchen) and a request for the applicant’s questioning were lodged. The Essen Regional Court decided that the detained applicant could be handed over for questioning by the investigating authorities. On 6 August 2008 Mr. B., the applicant’s lawyer, appointed himself counsel chosen by the applicant (Wahlverteidiger) and requested that the proceedings be discontinued. Mr. B. lodged an appeal against the Essen Regional Court’s decision and consulted the case files. He then informed the Public Prosecutor that the applicant would refuse to give evidence and the Public Prosecutor abstained from questioning. On 11 September 2008 Mr. B. lodged a request to be appointed as the applicant’s official defence counsel (Pflichtverteidiger). He relied on section 140 § (1) no. 5 and § (2) of the Code of Criminal Procedure and held that there was a legal obligation to appoint an official defence counsel in the applicant’s case and that the Public Prosecutor was obliged to make the corresponding request with the competent court. On 19 November 2008 the Cologne Public Prosecutor’s Office informed the applicant’s representative that it did not intend to request that he be appointed official defence counsel during the preliminary investigation proceedings. It underlined that he had already been appointed by the applicant as his defence counsel. There were no grounds at this stage requiring him to be appointed officially. On 2 January 2009 the Cologne General Public Prosecutor dismissed the applicant’s representative’s complaint against this decision, holding that the fact that legal representation was compulsory during later trial proceedings did not entail an obligation to appoint an official defence counsel for the whole preliminary investigation nor for certain investigation measures. Moreover, the Public Prosecution benefitted from a certain margin of appreciation when appointing defence counsel. The appointment of defence counsel during preliminary investigations was necessary only if there were concrete grounds requiring legal assistance at an early stage, which was not the case at present. On 22 January 2009 the Federal Constitutional Court refused to admit his constitutional complaint for adjudication. It held that it was inadmissible with regard to the principle of subsidiarity. The alleged violation of constitutional law by the Public Prosecutor’s refusal to officially appoint defence counsel could still be challenged in the main proceedings, notably by virtue of an appeal on points of law, without the applicant incurring any major disadvantages. The relevant provisions of the Code of Criminal Procedure read as follows: “Section 117 (1) ... (4) If the accused does not yet have defence counsel, he shall be assigned defence counsel for the duration of his pre-trial detention, if its execution has lasted for at least three months and the public prosecutor’s office or the accused or his statutory representative has requested it. The accused shall be informed about his right to submit a request. Sections 142, 143 and 145 shall apply mutatis mutandis. (5) ...” “Section 140 (1) The assistance of defence counsel shall be mandatory if: 1. the main hearing is held at first instance at the Higher Regional Court or at the Regional Court; 2. the accused is charged with a serious criminal offence; ... 5. the accused has been detained for at least three months on the basis of a judicial order or with the approval of a judge and will be detained until at least two weeks prior to the commencement of the main hearing; ... (2) In other cases the presiding judge shall appoint defence counsel upon application or ex officio if the assistance of defence counsel appears necessary because of the seriousness of the offence or because of the difficult factual or legal situation (...).” “Section 141 (1) In the cases of Section 140 §§ (1) and (2), as soon as an indicted accused without defence counsel has been requested according to Section 201 to reply to the bill of indictment, defence counsel shall be appointed. (2) ... (3) Defence counsel may be appointed during the preliminary proceedings. The public prosecutor’s office shall request such an appointment if, in its opinion, the assistance of defence counsel pursuant to Section 140 §§ (1) or (2) is necessary during the court proceedings. (...). (4) The judge presiding over the court with jurisdiction in respect of the main proceedings or over the court to which the case has been assigned shall decide on the appointment.”
| 0
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train
|
001-121774
|
ENG
|
ITA
|
CHAMBER
| 2,013
|
CASE OF ANGHEL v. ITALY
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
András Sajó;Guido Raimondi;Helen Keller;Peer Lorenzen
|
6. The applicant was born in 1961 and currently lives in Qatar. He was married to M. and they had a son, A., born in March 2003 in Bucharest, Romania. 7. Following A.’s birth, M. occasionally worked in Italy for short periods of time, in order to ensure an income for the family. In 2005, after M. had obtained a regular job, the applicant agreed for A. to travel to Italy with his mother. A formal notarial deed of 26 April 2005, submitted to the Court, states that Mr Anghel Aurelian, residing in Bucharest, gave his consent that his under-age son, Anghel A., born in March 2003, residing at the above-mentioned address, travel to the Republic of Moldova and Italy, in the course of the year 2005, accompanied by his mother, Anghel M. The applicant submitted that such agreement had only been given for a limited period of time in order to allow ongoing contact with M. The case file shows that M. challenged this statement, alleging that she had taken the child with her because of the adverse effect that living with his father was having on A.’s development. 8. In January 2006 the applicant travelled to Italy in order to bring A. back to Romania. He claimed that he had found the child living in very poor conditions. M. had resisted the applicant’s requests to take the child back to Romania or alternatively for all of them to move to Qatar, where he had found a job. 9. Once the applicant had returned to Romania, he filed a criminal complaint under Article 301 of the Romanian Criminal Code, alleging that his wife was detaining A. in Italy without his consent. 10. On an unspecified date, the applicant moved to Qatar. On 6 December 2006 he travelled to Italy to visit his son. He alleged that A.’s health and social conditions had worsened. On 13 December 2006 father and son travelled together to Romania. On 8 January 2007 M. joined them. On 15 January 2007 they all travelled to Moldova to pay a visit to M.’s family. On 20 January 2007, M. and A. “disappeared”. The applicant eventually found out that they had returned to Italy. 11. On 9 February 2007, the Romanian Prosecutor General’s Office decided not to institute criminal proceedings against M., as there was insufficient evidence to establish a punishable offence. The applicant contested the afore-mentioned decision on 28 December 2007. It appears that a district court dismissed the challenge as unfounded on 31 March 2008. The applicant filed an appeal with a higher court. No further information has been provided in relation to these proceedings. 12. On 2 April 2007 the applicant applied to the Minister of Justice, designated by Romania as the Central Authority responsible for discharging the duties imposed on Romania by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He asked the Minister to assist him in securing the return of his son, whom the child’s mother had, he alleged, wrongfully removed to Italy on 20 January 2007. 13. Following the steps undertaken by the Romanian and Italian authorities in accordance with the provisions of the Hague Convention, the Bologna Prosecutor’s Office initiated return proceedings before the Bologna Youth Court (Tribunale per i minorenni). 14. On 18 June 2007 a hearing took place in the applicant’s presence. The following appears from the hand-written procès-verbal submitted by the Government. Following statements by the applicant and M., the president of the court noted the existence of divorce proceedings brought by M. in Romania, together with an application for custody of the child (objected to by the applicant), which were still pending. He further noted that while the couple had cohabited from 2004 until the end of 2006, the applicant had often been absent during 2006 as he had been working in Qatar. M. submitted that until the end of 2006 the parents had been in agreement on the whereabouts of the child, particularly in view of her employment in Italy and the fact that the child had obtained a residence permit there, started attending school and was being seen by the social and community health services. M. argued that according to changes in Romanian law she had not needed to extend the [validity of the] notarial deed (mentioned above) to subsequent years. She claimed that the child had previously had health problems and that his father had always known where they were. M. asked the court to admit in evidence a psychologist’s report on the child’s conditions and submitted written pleadings accompanied by evidence substantiating her claim. The applicant submitted that the notarial deed between him and M. had only given consent to A. travelling to Italy for tourist purposes for the period May-December 2005 and thus he had not consented to the child’s removal after that. In the absence of a custody decision the child could have lived with him in Qatar, instead of in Italy with his mother without his consent. However, M. had failed to consent to this, despite the fact that he could give the child a better standard of living. He explained that he had tried to reach a friendly settlement, but when this had appeared impossible he had pressed charges against M. and those proceedings were still pending. Only at the end of 2006 had M. agreed to take the child back to Romania following a medical visit, which the applicant had insisted upon and which had found that the child was in poor health. The Public Prosecutor asked the court to accept the return application, noting that the child had possibly been in Italy for more than a year and making reference to Article 17 (sic) of the Hague Convention. He further asked the court to order a report on the child’s psychological condition. 15. On 5 July 2007 the applicant wrote to the Romanian Minister of Justice, informing him of the conduct of the hearing. The applicant explained that he had not been given the opportunity to challenge the statements made by his wife’s attorney, in particular regarding: (i) the time it had taken the applicant to institute proceedings after the date of the wrongful removal or retention of the child, which according to the applicant had been 20 January 2007 and not – as the court had assumed – January 2006; the result of the court using the latter date was that Article 12 of the Hague Convention came into play, to the effect that after a period of one year a child may not be returned if he has integrated into society; (ii) the contention that the child’s health and psychological problems were imputable to the time he had spent with his father before moving to Italy, which finding had been based on medical documents to which the applicant had had no access; (iii) the allegation that M. had had his consent up to 1 January 2007, the date on which such consent was no longer necessary (Romania having joined the European Union), thus ignoring the notarial deed, which had stated a specific period of consent; and (iv) the fact that M. had changed their son’s residence without his father’s consent, as required by law. The applicant further explained that the Bologna Youth Court was considering custody issues in violation of its competence under the Hague Convention, custody issues being within the exclusive competence of the courts of the country of domicile, Romania. It would, moreover, not decide the case until the Romanian courts had made a decision in the divorce and custody proceedings. He further contested the evaluation of the potential harm for the child in the event of his return to Romania which had been made by the social services, stating that it had only made reference to the biased account of the child’s mother, without any direct evaluation of the relationship between father and son and of the social environment if A. were to live in Romania. The applicant asked the Minister to forward his letter to the competent authority in Italy and to the Bologna Youth Court. 16. By a decision of 6 July 2007, filed with the court registry on 9 July 2007, the Bologna Youth Court refused the application for return. It noted that divorce and custody proceedings were still pending in Romania; that M. had claimed that she and the child had lived in Italy since 2006; and that since June 2006 A. had been known to the Infant Neuropsychiatric Services (“NPI”) of the Parma Local Health Agency (“AUSL”). Moreover, it noted that M. had claimed to have had the required permission from her husband to keep the child in Italy in accordance with a notarial deed of 2005 and that the applicant had contested this on the basis that he had only given permission for A. to travel to Italy for tourist purposes, and that, albeit he had moved to Qatar in 2006, he wanted the child to be with him. In that light, the court considered that there were no grounds for returning A. and that, in view of the relevant international law, it could not be held that the mother had arbitrarily taken A. away from his father as legitimate custodian of the child. The Bologna Youth Court noted that the Romanian authorities had not yet taken a decision on custody, thus the parents had joint custody, and therefore the applicant did not have exclusive custody rights. Moreover, the applicant had consented to A.’s transfer to Italy and had eventually moved to Qatar. Furthermore, the Bologna Youth Court observed that the child had been in Italy for more than a year and was integrated into Italian society, albeit with some problems. In this light, the court considered that psychological harm would ensue as a result of his return. Thus it was not obliged, according to Article 13 of the Hague Convention, to order his return. Indeed, from the social services report ordered by the court, it appeared that A. had arrived at the NPI’s premises, accompanied by his mother, on the advice of his general practitioner and that since then A. had been subject to psychotherapy which included joint interviews with his mother. The doctor entrusted with the report had noted that the need for A.’s psychotherapeutic treatment was due to early and prolonged periods of separation from his parents, frequent changes of residence, and continuous parental conflict. It was therefore necessary to give A. reference points and daily routines. Overall, his psychological condition had been improving, save for a worrying regression following his return from Romania and Moldova in January 2007, from which he had recovered. The decision was notified to the Public Prosecutor on 13 August 2007. 17. On 25 July 2007 the Italian authorities informed the Romanian authorities about the Bologna Youth Court’s decision of 6 July 2007, filed with the court registry on 9 July 2007. 18. On 30 July 2007 the Romanian Ministry of Justice informed the applicant of the decision and told him that it had also requested information from the Italian Ministry of Justice about the available remedies with which to challenge the decision. 19. By letter of 6 August 2007, the Italian Ministry of Justice informed the Romanian Ministry of Justice that the decision could be appealed against through an appeal on points of law to the Court of Cassation, to be lodged within sixty days of the date of the decision – if such rejection was pronounced during a hearing at which the requesting party was present (according to Law no. 64 of 1994) – through an advocate qualified to plead before that court. Alternatively, he could bring an action in accordance with Article 11 of EC Regulation 2201/2003 (“Brussels II bis”). 20. The following day, the Romanian Ministry of Justice informed the applicant of the above and that it had requested further information on the final date to lodge the appeal on points of law and on the applicant’s ability to obtain legal aid. 21. The applicant repeatedly contacted the Romanian Ministry of Justice to obtain the response to those queries, together with the documents which would have allowed him to appeal. 22. On 13 September 2007 the Romanian Ministry of Justice forwarded to its Italian counterpart the applicant’s application for legal aid in order to file an appeal on points of law. The application for legal aid was filed on 25 October 2007. 23. On 29 October 2007 the Council of the Bologna Bar Association granted the applicant legal aid to file an appeal, indicating the Bologna Court of Appeal as the competent court and not the Court of Cassation. It further noted that it was not sure that an appeal was still possible – it being unknown whether the decision had been served, the relevant time-limit could not be calculated. On 30 October 2007 the decision was sent to the Italian Ministry of Justice. 24. By letter of 8 November 2007, the applicant was informed by the Italian authorities that his application had been received on 16 October 2007 and forwarded to the Council of the Bologna Bar Association. No mention was made of the decision of 29 October 2007. 25. According to the documents produced, on 22 November 2007 the decision granting the applicant legal aid was forwarded to the Romanian Ministry of Justice, together with an invitation to inform the applicant, as well as to adduce proof that he had received the decision. It is unknown whether this notification ever reached the Romanian Ministry of Justice, and the information was not transferred to the applicant. 26. On 13 December 2007 upon the applicant’s complaint that he had not been informed of any decision on his application, the Romanian Ministry of Justice urged the Italian authorities to provide an answer. 27. In the absence of a reply, on 3 January 2008 the applicant sent an e-mail to the Romanian Consulate in Rome asking for support in obtaining information on the matter. By letter of 17 January 2008, the General Division of Consular Affairs of the Romanian Ministry of Foreign Affairs informed the applicant that a favourable decision on his application had been taken on 29 October 2007 and that it had been communicated to the Romanian Ministry of Justice on 22 November 2007. 28. On 27 January the applicant wrote to the Romanian Consulate again confirming that to date he had not received a copy of the decision and asking it to ascertain who had sent it on behalf of Italy and who had received it at the Romanian Ministry. On 28 January 2008 the Division of Consular Relations forwarded a copy of the correspondence pertaining to his file to the applicant. 29. On 15 February 2008 the Italian Ministry of Justice asked the Council of the Bologna Bar Association to provide, urgently, a list of the advocates qualified to plead the applicant’s appeal within the legal aid scheme. On 19 March 2008 such a list was sent by the Italian authorities to the Romanian Ministry of Justice, which forwarded it to the applicant on 24 April 2008. On 6 May 2008 the applicant wrote to the Italian Ministry of Justice and to the Council of the Bologna Bar Association indicating his choice. 30. On 16 June 2008 the appointed legal aid lawyer (MCA) made a request to the registry of the Bologna Youth Court to view the relevant files. By letter dated 23 June 2008, addressed to the applicant and the Italian and Romanian authorities (apparently faxed on 2 or 8 July 2008 to the Italian authorities, receipt date for all recipients unknown), MCA indicated that she was not in a position to represent the applicant as she was not qualified to plead before the Court of Cassation and, contrary to the indication given by the Council of the Bologna Bar Association, the only available remedy was an appeal to the Court of Cassation under Article 7 of Law no. 64 of 15 January 1994, such appeal to be lodged within sixty days of notification. She also mentioned that, as it did not appear that the applicant had been notified of the impugned decision, the time-limit to appeal in his case would expire one year and forty-five days after the date of the lodging of the decision with the court registry and, therefore, she advised the applicant to appoint an advocate qualified to plead before the Court of Cassation as soon as possible in order to be able to file the appeal. 31. On 15 July 2008, the applicant wrote to the Council of the Bologna Bar Association asking for a list of advocates qualified to plead in cassation proceedings. On 23 July 2008, the applicant received such a list by e-mail and replied indicating the name of his chosen lawyer. 32. On 12 August 2008, the applicant wrote again to the Council of the Bologna Bar Association requesting further contact details (telephone numbers and e-mail address) for his chosen lawyer. He alleged that the information contained in the list was inaccurate and that he had not been able to establish any contact with the lawyer. No reply was received. 33. The applicant eventually obtained the relevant information from personal contacts and on 23 September 2008, he wrote an e-mail to the lawyer, explaining the situation, and asking whether she had been informed of her appointment. The same day, the lawyer replied stating that she had not been informed and requesting the case documents and a copy of the decision granting legal aid, in order for her to decide whether to take up the appointment. The day after, the applicant reached the lawyer by phone and replied to her by e-mail, giving the information and documents requested. 34. On 25 September 2008 the lawyer informed the applicant that the time-limit of one year and forty-five days to appeal against the decision of 6 July 2007 had expired and that, consequently, she was not in a position to assist him. 35. According to Article 7 of Law no. 64 of 1994, an appeal against a decree of a Youth Court regarding the repatriation of a minor is to be lodged with the Court of Cassation. 36. According to Article 325 of the Code of Civil Procedure (“CCP”), as applicable at the time of the facts of the present case, an appeal to the Court of Cassation was to be lodged within sixty days of notification. In so far as relevant, according to Article 326 of the CCP the time-limit mentioned in Article 325 starts to run from the day on which the decision is served/notified. According to Article 327 of the CCP, as applicable at the time of the present case, in the event that the decision was not served/notified, the appeal is required to be introduced not later than a year from the filing of the decision in the relevant court registry. 37. Article 1 of Law no. 742 of 7 October 1969 regarding the suspension of time-limits during holiday periods reads as follows: “Time-limits for ordinary and administrative proceedings are legally suspended from 1 August to 15 September of every year and start to run again at the end of the suspension period. Where the time-limit is to start to run during a holiday period, the relevant time-limit shall start to run from the end of that holiday period.” 38. According to Italian jurisprudence (see for example Court of Cassation judgment no. 25702 of 9 December 2009), when, after a first suspension, the original term has not entirely come to an end before the start of a new holiday period, a double computation of the suspension is applied. Article 3 of Law no. 742 of 7 October 1969 reads as follows: “In civil matters, Article 1 does not apply to causes and proceedings mentioned in Article 92 of Law no. 12 (1941) on the judicial system and controversies arising under Article 409 (labour cases) and 442 (welfare benefits) of the Code of Civil Procedure.” Article 92 of Law no. 12 (1941) reads as follows: “During the holiday period courts of appeal and ordinary courts deal with cases regarding alimony/maintenance, labour law, interim measures, adoptions, temporary interdiction, interdiction, incapacitation, restraining orders for protection against a family member, eviction and oppositions to enforcement, bankruptcy, and other cases in respect of which a delay could cause prejudice to the parties in the proceedings. In the latter case, a declaration of urgency is made by the president at the bottom of the application, by final decree, and for causes already being heard by order of a judge.” According to Court of Cassation judgments no. 28 of 5 January 1996 and no. 2946 of 20 March 1998, the suspension of time-limits for holiday periods applies to both adoption and paternity proceedings before a Youth Court. 39. Legal aid is provided for by Law no. 115 of 30 May 2002. The relevant Articles read as follows: “(2) Free legal assistance is also available in respect of civil, administrative, fiscal and tax proceedings, as well as matters related to voluntary jurisdiction, for the defence of a poor citizen when the claims at issue are not manifestly ill-founded.” “An application [for legal aid] must be submitted to the Council of the Bar Association by the applicant or his lawyer, by means of a registered letter. The competent Council of the Bar Association is that of the place within which the magistrate of the pending case has his or her seat. If the proceedings are not pending, it is that of the place holding the seat of the magistrate competent to hear the case on the merits. In the event that it relates to the Court of Cassation, the Supreme Administrative Court, or (...) the Court of Auditors, the competent Council of the Bar Association is that of the seat of the magistrate who has delivered the impugned decision.” 40. The relevant articles of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by Romania and Italy, read as follows: “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State 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 – [...] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [...]” “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. [...].” “If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.” “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” “The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.” “This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.” 41. The provisions of the Hague Convention are enforceable in the Italian courts by virtue of Law no. 64 of 15 January 1994.
| 1
|
train
|
001-76746
|
ENG
|
GBR
|
CHAMBER
| 2,006
|
CASE OF BARROW v. THE UNITED KINGDOM
| 3
|
No violation of Art. 14+P1-1
|
Josep Casadevall;Nicolas Bratza
|
8. The applicant was born in 1943 and lives in Wrexham. 9. In August 2003 the applicant turned 60 years of age. Prior to that date she was in receipt of long-term incapacity benefit (IB), a benefit payable to people incapable of work who satisfy the eligibility criteria. She had qualified for the rate of 81.85 pounds sterling (GBP) per week. She was also paid GBP 39.95 per week in disability living allowance (DLA) and GBP 15.15 in DLA care. At age 60, which is the date of entitlement to the State pension for women, she ceased to be eligible for IB. In its place she became entitled to draw her state retirement pension which, based upon her contribution record, entitled her to GBP 57.81 per week (about 62% of the maximum rate as she had only contributed for 24 years out of 39). She continued to draw DLA. As a result, the applicant claimed that she was some GBP 24.04 per week worse off as a result of her transition from IB to the State pension. 10. The applicant complained to the Department of Work and Pensions concerning the differential treatment but was informed that nothing could be done. 11. The National Insurance Act 1946, which first established the basis for the national social security scheme in the United Kingdom, set out a system of funding under which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory national insurance (“NI”) contributions into the National Insurance Fund (NIF). This legislation has since been replaced, most recently, by the consolidating provisions of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and the Social Security Administration Act 1992. 12. Section 1(2) of the SSCBA sets out the various classes of NI contribution. Of these, the largest category is Class 1 contributions which consist of earnings-related contributions paid by employers and employees. Such contributions are levied as a percentage of earnings which varies according to the employee’s earnings band. The NI scheme is financed on a “pay as you go” basis, that is, current NI contributions fund current benefits: thus an individual’s contributions fund not his or her own benefits but those of others (R. (Carson) v. Secretary of State for Work and Pensions [2002] 3 All ER paras. 25-26). 13. Primary Class 1 contributions to NI cease to be payable on attainment of the State retirement age (section 6(3) of the SSCBA). 14. The NIF is currently the sole source of funding for payment of state retirement pensions as well as a number of other benefits, including IB. Topping up into the fund by way of Treasury Grant is possible in times of shortfall but has not occurred since 1997/1998. 15. The Social Security (Incapacity for work) Act 1994 amended the 1992 Act so as to include provision for the payment of IB from April 1995. Section 1 provides, as relevant: “... (1) Subject to the following provisions of this section, a person who satisfies either of the following conditions is entitled to short-term incapacity benefit in respect of any day of incapacity for work which forms part of a period of incapacity for work. (2) The conditions are that - (a) he is under pensionable age on the day in question and satisfies the contribution conditions specified for short-term incapacity benefit in Schedule 3, Part 1, paragraph 2; ... (4) In any period of incapacity for work a person is not entitled to short-term incapacity benefit for more than 364 days. (5) Where a person ceases by virtue of subsection (4) above to be entitled to short-term incapacity benefit, he is entitled to long-term incapacity benefit in respect of any subsequent day of incapacity for work in the same period of incapacity for work on which he is not over pensionable age.” 16. IB is a contributory benefit funded out of NI contributions, designed to compensate a person for financial loss as a result of their inability to work due to ill-health or disability. It is therefore available throughout the assumed working life. As a result the period of entitlement is directly linked, for men and women, to the period of entitlement (if any) to receive the State retirement pension. When an individual reaches State pension age any entitlement to such a pension takes the place of IB. A full basic retirement pension pays GBP 77.45 per week, while the standard rate of IB is GBP 72.15. 17. At the relevant time, section 122 of the Social Security Contributions and Benefits Act 1992 defined “pensionable age” as: “(a) the age of 65, in the case of a man; and (b) the age of 60, in the case of a woman”. 18. Women in the United Kingdom therefore become eligible for a State pension at the age of 60, whereas men are not eligible until 65. 19. Section 126 of the Pensions Act 1995 provides for the equalisation of State pension ages for men and women to the age of 65. The State pension age for women will increase gradually from 2010 and the equalisation will be complete in 2020. At the same time, the age until which women are liable to pay national insurance contributions will gradually increase in line with the increase in the State pension age. 20. Council Directive 79/7/EEC of 19 December 1978 provides for the progressive implementation of the principle of equal treatment for men and women in matters of social security. However, in Article 7(1)(a) the Directive provides for derogation in the matter of “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”. 21. In its judgment in Case C-328/91 Thomas and Others [1993] ECR I-1247, the European Court of Justice (ECJ) ruled that where, pursuant to Article 7(1)(a), a Member State prescribed different pensionable ages for men and women for the purpose of granting old-age and retirement pensions the scope of the permitted derogation defined by the words “possible consequences thereof for other benefits” was limited to the forms of discrimination existing under other benefits schemes which were necessarily and objectively linked to the difference in pensionable age. That was the position where such forms of discrimination were objectively necessary to avoid disturbing the financial equilibrium of the social security system or to ensure coherence between the retirement pension scheme and other benefit schemes. 22. In Case C-92/94 Secretary of State for Social Security v. Graham [1999] ECR I-2521, the ECJ considered the predecessor of IB, namely invalidity allowance and invalidity pension (both contributory benefits paid from NI contributions until pensionable age or until the cessation of any deferment in pension). It found that the measures were justified by both considerations of financial equilibrium and overall coherence and that the discrimination was necessarily linked to the difference in pensionable age for men and women, inter alia as invalidity benefit was designed to replace income from occupational activity and was replaced by a retirement pension at the age at which the recipients would in any event stop working. 23. The derogation was not however held to justify pension-aged linked discrimination in a number of benefits e.g. in R. v. Secretary of State for Social Security, ex parte Taylor [1999] ECR I-8955, the ECJ held that the provision of winter fuel allowances for the elderly was not necessarily linked to the difference in the statutory age of retirement for men and women and in R. v. Secretary of State for Health ex parte Richardson [1995] ECR I-3407, the ECJ found that the discrimination in age entitlement to free prescriptions was not objectively justified to ensure coherence between the retirement pension system and the regulations concerning prescriptions and was not necessarily linked to the difference between pensionable ages for men and women. 24. In Case C-9/91 The Queen v. Secretary of State for Social Security , ex parte Equal Opportunities Commission [1992] ECR1-4297 (“the EOC case” concerning a reference for a preliminary ruling from the High Court relating to the differing contribution periods applicable to men and women determined according to pensionable age), the ECJ found that: Article 7(1)(a) had to be interpreted as authorising the determination of a statutory pensionable age which differs according to sex for the purposes of granting old-age and retirement pensions and also forms of discrimination which are necessarily linked to that difference; Inequality between men and women with respect to the length of contribution periods required to obtain a pension constitutes such discrimination where, having regard to the financial equilibrium of the national pension system in the context in which it appears, it cannot be dissociated from a difference in pensionable age; In view of the advantages allowed to women by national pension systems, in particular as regards statutory pensionable age and length of contribution periods, and the disruption that would necessarily be caused to the equilibrium of those systems if the principle of equality between the sexes were to be applied from one day to the next in respect of those periods, the Community legislature intended to authorise the progressive implementation of that principle by the Member States and that progressive nature could not be ensured if the scope of the derogation authorised by Article 7(1)(a) were to be interpreted restrictively.
| 0
|
train
|
001-60714
|
ENG
|
FIN
|
CHAMBER
| 2,002
|
CASE OF PIETILAINEN v. FINLAND
| 4
|
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Nicolas Bratza
|
9. The applicant was born in 1943 and lives in Laukaa. 10. On 5 January 1987 criminal investigations were instituted against the applicant who was taken into police custody the same day in respect of, inter alia, alleged tax frauds. He was released on 16 January 1987. 11. On 5 July and 31 August 1990 the applicant was summoned to appear before the Helsinki City Court (raastuvanoikeus, rådstuvurätt, as from 1 December 1993 Helsinki District Court, käräjäoikeus, tingsrätt) indicted for several aggravated tax frauds. The alleged offences concerned the importation of parts of vehicles and failure to pay relevant tax for them. The relevant decisions of the tax authorities after the clearance of the taxes were not yet final as the applicant had appealed against them. The first hearing before the District Court was held on 14 November 1990. The complainants and one of the four defendants, MI, had not yet been summoned. The Public Prosecutor charged the applicant with ten aggravated tax frauds, some of which he had allegedly committed together with other defendants, including MI. The applicant’s lawyer asked to be allowed to reply to the charges later. At the request of the Public Prosecutor the case was adjourned until 3 April 1991. 12. At the second hearing, on 3 April 1991, the applicant denied all the charges. Concerning the alleged offences in complicity with MI, the applicant stressed MI’s role in the events and his greater knowledge of the subject. Two complainants and the defendant MI had still not been summoned. At the request of the Public Prosecutor and the National Board of Customs, which was one of the complainants, the case was adjourned until 29 May 1991. 13. At the third hearing on 29 May 1991 the National Board of Customs submitted claims for damages. The applicant’s lawyer opposed the claims and said he would revert to the question of damages in a later hearing. The defendant MI had still not been summoned to appear before the City Court. The Public Prosecutor requested an adjournment in order to have MI summoned and to submit further clarification to certain questions. His request was not opposed. The next hearing was ordered to be on 16 October 1991. 14. At the fourth hearing on 16 October 1991 the applicant was heard in person. His lawyer also clarified the reply to the claims of the National Board of Customs. The Public Prosecutor stated that MI had not yet been contacted and requested an adjournment in order to have him summoned. The applicant left the request for an adjournment to the City Court’s discretion. The case was adjourned until 4 December 1991. 15. At the fifth hearing on 4 December 1991 the Public Prosecutor stated that MI had still not been summoned and requested a further adjournment. The applicant left the request to the City Court’s discretion. The case was adjourned until 13 May 1992. 16. At the sixth hearing on 13 May 1992 the Public Prosecutor requested the case to be adjourned until further notice since MI’s place of residence was not known. The applicant left the case to be decided for his part. The City Court considered that it was necessary to hear MI before giving a decision on the charges against the applicant. Furthermore, the National Board of Customs had not yet given its decision concerning the appeals against the decisions of the tax authorities after the clearance of the taxes. The City Court, therefore, adjourned the case until further notice of the date of the next hearing would be given. 17. The National Board of Customs and the Supreme Administrative Court gave decisions concerning the appeals against the post-clearance decisions on 20 April 1993 and 15 December 1993 respectively. 18. In March 1994 the applicant lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekansler). The complaint concerned the City Court’s decision to adjourn his case until further notice. 19. The seventh hearing before the District Court (the former City Court) was held on 31 August 1994. MI had been summoned but he was absent from the hearing. At the request of the public prosecutor, which was not objected to, the case was adjourned until 21 September 1994. 20. At the eighth hearing on 21 September 1994 MI appeared before the District Court to reply to the charges. He and the applicant were examined as regards their complicity in the alleged offences. At the request of MI, which was not objected to, the case was adjourned until 9 November 1994. 21. At the last hearing on 9 November 1994 the applicant submitted that the length of the proceedings should be taken into account when assessing his possible punishment. The District Court convicted the applicant of a repetitive offence, consisting of four tax frauds, an aggravated tax fraud and aiding and abetting in two tax frauds and in two aggravated tax frauds, and sentenced him to six months’ suspended imprisonment. In the reasons given for the sentence the length of the proceedings was not mentioned explicitly. It was, however, noted that the fact that the offences had been committed a long time ago was one of the reasons for the court’s decision to impose a suspended sentence. 22. On 17 October 1995 the Deputy Chancellor of Justice (apulaisoikeuskansleri, justitiekanslersadjoint) gave his decision on the applicant’s complaint, finding no breach of official duties on the part of the City Court’s members or of the public prosecutor nor any reason to take further measures in the matter. 23. The public prosecutor and the defendants appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt). The applicant requested, inter alia, that the length of the proceedings should be taken into consideration when assessing his sentence. On 4 June 1996 the Court of Appeal, as regards the applicant, upheld the District Court’s decision without giving any further reasons. 24. The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen) renewing his request that the length of the proceedings be taken into account in the assessment of his sentence. On 26 November 1996 the Supreme Court refused the applicant leave to appeal. 25. Chapter 16, Section 4, Subsection 1 (30.4.1987/452), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided: “When a party requests an adjournment in order to submit further evidence or for some other reason, the case must be adjourned, if the court finds grounds for it. The date for a new hearing must be set at the same time. A court cannot adjourn a case of its own motion unless necessary under particular circumstances. ...” 26. As from 1 December 1993 the rules concerning adjournment of cases were amended (amendment 22.7.1991/1052). As regards criminal cases, the above-mentioned provision of law remained essentially unchanged. Furthermore, Chapter 16, Section 5, of the Code of Judicial Procedure provided: “When it is important to wait for a decision of another tribunal or some other body before a decision is given in a pending case, or when some other long-lasting impediment exists, a court may order that the hearing of the case will not be pursued until that obstacle ceases to exist.” 27. According to Chapter 14, Section 7a (19.4.1991/708), of the Code of Judicial Procedure, which came into force on 1 April 1992, charges against defendants accused of committing the same offence must, in principle, be tried together.
| 1
|
train
|
001-105758
|
ENG
|
HUN
|
CHAMBER
| 2,011
|
CASE OF SHAW v. HUNGARY
| 3
|
Violation of Art. 8;Non-pecuniary damage - award
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
|
6. The applicant was born in 1953 and lives in Paris. 7. On 21 June 2005 the French first-instance court of Paris pronounced the divorce of the applicant and his wife, Ms K.O., a Hungarian national. It granted the parents joint custody of their daughter, born in October 2000, and placed her with the mother, regulating the applicant’s access rights. At that time, the mother and the child lived in Paris. This decision was upheld by the second-instance French court on 29 November 2006. 8. Meanwhile, on 19 September 2005, Ms K.O. filed a criminal complaint against the applicant with the French authorities, alleging that he had sexually abused their child. She further requested the suspension of the applicant’s custody and access rights. However, in the absence of any evidence supporting her allegations, the complaint was dismissed on 2 November 2005. 9. On 29 December 2007, the mother took the child to Hungary for the holidays. The applicant was aware of this. However, in a letter dated 5 January 2008 she informed the applicant that she had enrolled their daughter in a Hungarian school without his consent, with no intention to return her to France. 10. On 12 March 2008 the applicant brought an action against the mother before the Hungarian Pest Central District Court. He requested the court to establish the abduction of their child by the mother and to order her to return the child to him, relying on Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“EC Regulation on Recognition of Judgments”) and the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The District Court established that the habitual residence of the child was in France, because she had the centre of her life there. Moreover, it observed that having had joint custody over their daughter, neither parent could have decided on the habitual residence of the child without the approval of the other parent. The District Court ordered a forensic expert examination of the parties and their daughter. The expert report concluded that abuse or indecency against the child had not been probable and therefore there were no reasons to disregard the obligation to order her return based on Article 13 (b) of the Hague Convention. Thus, on 30 May 2008 this court established the abduction of the child and ordered the mother to take her back to France by 6 June 2008, or to hand her over to the applicant in Hungary on 10 June 2008. 11. On 2 September 2008 the Budapest Regional Court upheld the District Court’s decision, but established that the time-limit to return the child back to France was 27 September 2008, or 1 October 2008 for handing her over in Hungary. (For the execution of this judgment, see heading 3 below.) 12. The mother lodged a petition for review of the final decision with the Supreme Court, which shared the Regional Court’s view that the legal conditions for the child’s continued stay in Hungary were absent. It assessed forensic psychology reports and concluded that the child was still emotionally attached to her father as well, thus her return to France would not cause her serious trauma. On 18 November 2008 the Supreme Court therefore upheld the Regional Court’s decision. 13. Following the final judgment delivered by the Regional Court (see paragraph 11 above), the Pest Central District Court ordered the enforcement of the judgment for the return of the child on 15 October 2008. 14. On 29 October and 26 November 2008 the bailiff unsuccessfully called on Ms K.O. to comply voluntarily with the court order. 15. On 5 December 2008 the bailiff referred the case file to the Heves District Court in order for it to establish the method of enforcement. 16. On 17 December 2008 the mother requested the suspension of the enforcement proceedings. The request was dismissed by the Hungarian Heves District Court on 19 December 2008. It further ordered her to pay a fine of 50,000 Hungarian forints (HUF) (approximately 180 euros (EUR)) and warned her to comply with her obligations. It pointed out that the court could not review an enforceable decision. This decision was upheld by the Heves County Regional Court on 12 February 2009. 17. Upon the bailiff’s request, the mother’s living conditions were examined by the Guardianship Authority. The attempts to promote the mother’s voluntary compliance with her obligations were without success. 18. Moreover, Ms K.O. initiated an action before the Pest Central District Court to have the enforcement proceedings terminated. The District Court dismissed her action on 14 January 2009. 19. On 27 April 2009 the Heves County Regional Court ordered the enforcement of the child’s return with police assistance. The decision became final on 18 June 2009. 20. On 20 July 2009 the bailiff invited the mother to ensure the child’s return during the on-site proceedings to be effected on 29 July 2009. 21. In the meantime, on 31 March 2009 the first-instance court of Paris had issued a European arrest warrant against Ms K.O. for the offence of change of custody of a minor. On 27 July 2009 she was arrested in Hungary. 22. On 28 July 2009 the mother was released by the Budapest Regional Court, which refused to enforce the European arrest warrant. It observed that criminal proceedings were pending against Ms K.O. before the Hungarian authorities for the same act (see paragraphs 40–41 below), which rendered the European arrest warrant obsolete. 23. On 29 July 2009 the bailiff attempted to hold on-site proceedings, which were unsuccessful as Ms K.O. and her daughter had absconded. The Heves Police Department declared them missing and issued a warrant. 24. On 19 October 2009 the bailiff effected on-site proceedings at the primary school of the child and established that the child had not attended the classes during the school year. 25. On 28 October 2009 the bailiff attempted to locate the mother and the child in Eger. However, it was recognised that the address given was non-existent. With police assistance, he searched all potential buildings in the neighbourhood, without success. 26. Moreover, the police authority carried out regular inspections at the mother’s registered address (on 10, 13, 14, 23 September 2009, 14 January and 18 February 2010) in order to detect potential contact between the mother and her parents. 27. On 17 February 2010 the bailiff ordered the stay of the enforcement proceedings as the mother and the child were staying at an unknown location. 28. In the spring of 2010, following a request for mutual legal assistance made by the investigating judge of the French appellate court, the authorities gathered information on the mother from telecommunication providers, contacted Ms K.O.’s former employer, the Mayor’s Office of the registered place of her residence, and heard several witnesses. 29. The Police Headquarters also monitored the database of the National Health Insurance Fund in order to obtain data as to any potential medical service provided for the mother or the child. 30. The child’s school was also being monitored. Exemption from class attendance was granted by the school principal on 23 November 2009. It was established that the child failed to appear at exams scheduled for 4 June and 18 August 2010. 31. The Eger Police Headquarters regularly (on 1, 4, 13 September, 15 October 2009, 20 January, 19 February, 19 March, 24 April, 27 May, 22 June and 25 July 2010) checked the public areas and places as well as the mother’s former address in Eger as, according to certain information, the mother is allegedly residing in Eger. 32. To date, these measures have not led to locating Ms K.O. or her daughter. 33. On 15 April 2008 the Paris Court of Appeal issued a certificate concerning the applicant’s access rights established by the French decision of 29 November 2006 (see paragraph 7 above) based on Article 41(2) of the EC Regulation on Recognition of Judgments. 34. The applicant thereafter requested the Hungarian Eger District Court to enforce his access rights. The case was transferred to the competent guardianship authority on 29 April 2008. The Gyöngyös District Guardianship Authority dismissed his request on 23 May 2008. It established its lack of jurisdiction, relying on Article 10 of the EC Regulation on Recognition of Judgments, as proceedings concerning the child’s abduction were pending before the Pest Central District Court (see paragraph 10 above). 35. On 12 January 2009 the Heves County Prosecutor’s Office raised an objection against this decision, finding it unlawful. It relied on Article 41 of the EC Regulation on Recognition of Judgments, arguing that the Guardianship Authority not only had jurisdiction, but also a legal obligation to enforce the applicant’s access rights. It therefore proposed that the Guardianship Authority’s decision be quashed. 36. The Gyöngyös District Guardianship Authority did not accept this proposal and submitted it for review to the North-Hungarian Regional Administrative Office, which shared the Guardianship Authority’s opinion establishing lack of jurisdiction. The applicant sought judicial review of this decision before the Heves County Regional Court. On 27 May 2009 the court dismissed the applicant’s action, finding that it would legalise the child’s unlawful retention in Hungary by enforcing his access rights and would be contrary to Article 16 of the Hague Convention. 37. The applicant’s access rights have not been respected ever since. 38. At the applicant’s request, but in Ms K.O.’s absence, the French first-instance court of Créteil issued a preliminary injunction placing the child with the applicant and granting him exclusive custody rights on 14 April 2008. 39. In 2009 the applicant initiated proceedings before the Eger District Court for the recognition of this judgment in Hungary. Following a remittal, the case is currently pending before the Heves Country Regional Court. 40. On 1 June 2009 the applicant filed a criminal complaint with the Eger District Public Prosecutor’s Office against the mother. Relying on section 195(4) of the Criminal Code, he considered that Ms K.O. was guilty of endangering a minor due to not having complied with a final judgment obliging her to hand over their daughter to him. 41. The Heves County Public Prosecutor’s Office dismissed the complaint on 24 June 2009. It considered that the constitutive elements of the crime had not been fully present as the mother should have been fined for not respecting access rights. However, the fine imposed on her (see paragraph 16) served to enforce her obligation to hand over the child to the applicant. 42. In the meantime, in the autumn of 2008 the applicant had filed a criminal complaint with the Hungarian authorities for change of custody of a minor, based on section 194 of the Criminal Code. On 29 September 2009 the Heves District Public Prosecutor’s Office ordered investigations. However, finding that no enforceable decision existed concerning exclusive custody of the child, it terminated the investigations on 8 January 2010. The applicant’s appeal was dismissed. 43. On 14 January 2009 the applicant submitted a complaint to the European Commission, claiming a violation of the Regulation (EC) no. 1393/2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“EC Regulation on Service of Documents”), the EC Regulation on Recognition of Judgments and the Charter of Fundamental Rights of the European Union. On 3 November 2009 the Commission issued a letter of formal notice to the Hungarian authorities concerning the possible violation of the EC Regulation on Recognition of Judgments. Reply to the letter of formal notice was submitted by the Minister of Foreign Affairs in December 2009. The proceedings are still pending. 44. This Regulation entered into force on 1 March 2005 (with the exception of Denmark) and has direct effect in the Member States of the European Union, including Hungary. “1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: ... (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1(b) may, in particular, deal with: (a) rights of custody and rights of access” “For the purposes of this Regulation: 11. the term "wrongful removal or retention" shall mean a child’s removal or retention where: (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and (b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.” “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ... 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. ... 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” “1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.” “A judgment relating to parental responsibility shall not be recognised: ... (c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; ...” “1. This Section shall apply to: (a) rights of access; and (b) the return of a child entailed by a judgment given pursuant to Article 11(8).” “1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.” “1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.” “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.” “In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation: (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.” 45. Hungary acceded to this Convention on 7 April 1986, promulgating it in Law-Decree no. 14 of 1986. “Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ...” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - ... b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” “After receiving notice of a wrongful removal or retention of a child in the sense 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 or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.” 46. According to section 172(1) of the Act, the obligor is first called to voluntarily fulfil his or her obligation within a given deadline. In case of non-compliance, the bailiff immediately submits the case file to the competent court in order to determine the method of enforcement. The possible methods of enforcement are governed by section 174 of the Act and include the possibility to impose a fine up to HUF 500,000 which may be renewed. Moreover, the court may order the enforcement with police assistance. In such cases, the bailiff sets a date for the on-site proceedings and informs the competent guardianship authority, the obligor, the applicant and the police. If the child to be returned cannot be found at his or her place of residence, the bailiff orders a search warrant.
| 1
|
train
|
001-71800
|
ENG
|
TUR
|
CHAMBER
| 2,005
|
CASE OF XENIDES-ARESTIS v. TURKEY
| 2
|
Preliminary objection dismissed (victim);Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 14+8 or 14+P1-1;State must introduce remedy within three months;Pecuniary and non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
|
Georg Ress
|
9. The applicant, Mrs Myra Xenides-Arestis, is a Cypriot national of Greek-Cypriot origin, who was born in 1945 and lives in Nicosia. 10. The applicant owns property in the area of Ayios Memnon (Esperidon Street), in the fenced-up area of Famagusta, that she acquired by way of a gift from her mother. In particular, she owns half a share in a plot of land (plot no. 142, sheet/plan 33/29) with buildings thereon, consisting of one shop, one flat and three houses. One of the houses was her home, where she lived with her husband and children, whereas the rest of the property was used by members of the family and/or rented out to third parties. Furthermore, the applicant partly owns a plot of land (plot no. 158, sheet/plan 33/29) with an orchard (her share being equivalent to 5/48). This was registered in her name on 31 January 1984. The rest of the property is owned by other members of her family. 11. In August 1974 she was forced by the Turkish military forces to leave Famagusta with her family and abandon their home, property and possessions. Since then she has been prevented from having access to, using and enjoying her home and property, which are under the occupation and the control of the Turkish military forces. According to the applicant, only the Turkish military forces have access to the fenced-up area of Famagusta. 12. On 23 April 2003 new measures were adopted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. On 30 June 2003 the “Parliament of the TRNC” enacted “Law no. 49/2003” on compensation for immovable properties located within the boundaries of the “TRNC”, which entered into force on the same day. On 30 July 2003, under Article 11 of this “Law”, an “Immovable Property, Determination, Evaluation and Compensation Commission” was established in the “TRNC”. The rules of the commission were published in the “TRNC Official Gazette” on 15 August 2003 and the commission was constituted by a decision of the “TRNC Council of Ministers” published in the aforementioned gazette on 18 August 2003. 13. On 24 April 2004 two separate referendums were held simultaneously in Cyprus on the Foundation Agreement–Settlement Plan (“Annan Plan”) which had been finalised on 31 March 2004. Since the plan was approved in the Turkish-Cypriot referendum but not in the Greek-Cypriot referendum, the Foundation Agreement did not enter into force.
| 1
|
train
|
001-68288
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,005
|
WALLIN KARLSEN v. DENMARK
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant, Jan Wallin Karlsen, is a Danish national, who was born in 1952 and lives in Åhus, Sweden. He is represented before the Court by Jacob Arrevad, a lawyer practising in Copenhagen The respondent Government are represented by their Agent, Ms Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In the beginning of the 1990s a new concept called “tax asset stripping cases” (selskabstømmersager) came into existence in Denmark. It covered a criminal activity by which the persons involved committed aggravating debtor fraud by buying up and selling numerous inactive solvent private limited companies within a short period, and for the sake of their own profit, “stripping” the companies for assets, including deposits earmarked for payment of corporation tax. Often the persons involved systematically acquired the inactive, solvent companies for the companies' own fund. The persons involved were usually intricately interconnected and collaborated about their economic criminal activities, which concerned very large amounts. According to surveys made by the customs and tax authorities, approximately one thousand six hundred companies with a total tax debt exceeding 2 billion Danish kroner (DKK) were stripped in the period from the late 1980s until 1994. Following a number of legislative amendments, the trade in inactive, solvent companies largely ceased in the summer of 1993. On 11 May 1992 the tax authorities sent a letter to the police in Frederikssund and requested assistance to investigate a case of tax asset stripping involving two Swedish nationals. The preliminary investigation, which was undertaken in secret, began in the autumn of 1992 and revealed that the applicant and many other Danish nationals were also involved. Behind closed doors and thus unknown to the applicant, on 20 January 1993 the City Court in Frederikssund (Retten i Frederikssund), henceforth referred to as the City Court, granted warrants to the police to search the premises of the applicant, but also those of a number of banks, accountants' firms, law firms and companies that had been used by the applicant and others in relation to the tax asset stripping. On 23 February 1993 the applicant was arrested and charged with tax asset stripping of about twenty-seven companies in the period 19891993. At the same time the police carried out a search at his premises in accordance with the above court order. The applicant was released the following day. The City Court issued a discovery order on 25 March 1993 with regard to a specified bank and its documents relating among others to the applicant. Subsequently, on 19 April 1993 the applicant was arrested anew, still charged with tax asset stripping relating to about twenty-seven companies. Also, his premises were searched anew. Subject to court orders, the applicant was detained on remand in the period from 20 April until 2 June 1993 when, on appeal, the High Court of Eastern Denmark (Østre Landsret), henceforth referred to as the High Court, released him stating that there was no reason to suspect that he would be able to hamper the on-going investigation if set free. In the period from the summer of 1993 until January 1996 the City Court issued numerous search warrants and discovery orders concerning banks, lawyers, state-authorised public accountants, credit card companies and other companies. Thus, court orders relating to the above residing in Denmark were issued by the City Court on 26 August, 7 October and 3 November 1993; on 4 January, 25 February and 22 August 1994; on 7 September and 27 October 1995; and on 15 January 1996. Court orders relating to the above residing outside Denmark and corresponding international letters of request were issued by the City Court on 6 July 1993 as to a number of companies on the Isle of Man and in London; on 15 October 1993 as to a credit card company in London; on 5 November 1993 as to two banks in Vanuatu in the Pacific Ocean; on 1 September 1994 as to a bank and a company in Gibraltar; and on 9 November 1994 as to a bank in Switzerland. In the same period, as part of their investigation, the Danish police also required assistance from various individuals and institutions in Sweden, France, Belgium, Luxembourg and Israel. Furthermore, in order to assist the police in processing the material obtained from the searches and the discovery orders a firm of stateauthorised public accountants was hired to untangle the intricate corporation structures and ownership structures of the companies, as well as the problems of tax technicalities posed by the case and the thousands of financial transactions. Hence, in the period from 1 November 1994 until 15 September 1996 audit reports were drawn up for each of the seventy-five companies that had been stripped of their assets as well as an additional number of companies that had been used as intermediaries and buyers and a seemingly fictitious bank registered in Vanuatu. The accountants also made a statement on financial transactions concerning the companies involved. In the meantime, by judgment of 26 May 1994 the City Court convicted the two Swedish nationals, who in May 1992 had been reported to the police by the tax authorities. They were both convicted in accordance with their confessions and sentenced respectively to four and six years' imprisonment. In January 1996 the public prosecution informed the City Court that an indictment in the applicant's case was expected to be ready in April 1996. At the same time it was emphasised that the two Swedish nationals, who had been convicted by the same City Court, were to be heard as witnesses on the prosecution's behalf. Accordingly, in order to avoid issues of impartiality, the presiding judge of the City Court in a letter of 5 February 1996 requested the President of the High Court to appoint a substitute judge in the case against the applicants and the co-charged. The presiding judge of the City Court pointed out that dates for the hearings needed to be scheduled as soon as possible, and that it should be taken into account in this respect that each of the eight defendants had their own chosen counsel, some of whom were already busy with other cases in months to come. In February 1996, the City Court (with a substitute judge appointed), the public prosecutor, counsel for the applicant and counsel for the seven cocharged agreed on provisional dates for scheduling court hearings. As the trial would take up a lot of space, the City Court had to rent suitable facilities to accommodate all the persons involved and all the documents. In June 1996 the City Court signed a lease contract for appropriate facilities which, however, needed to be refurbished before the trial could begin. By indictment of 1 July 1996, submitted to the City Court, the applicant was indicted inter alia pursuant to section 283, subsection 1 (3) cf. section 286, subsection 2, and cf. section 23 of seventytwo counts of fraudulent preference of a particularly aggravated nature involving tax asset stripping of about seventy-four companies, having been committed in collaboration with the seven coaccused and others. Pre-trial reviews were held on 24 June, 2 July and 7 August 1996, during which it was decided inter alia that the trial commence on 9 October 1996 and that two days each week should be scheduled for the trial. Twenty-two court hearings were fixed for the period from October until December 1996; sixty-five hearings were fixed for 1997; and about thirty hearings were fixed for the period from January until April 1998, reserving May 1998 for closing speeches. Also, the City Court appointed back-up counsel for the applicant and the co-accused. Another pre-trial review was held on 12 August 1996. Furthermore, during the months of August and September 1996, procedural questions were determined e.g. as to whether seventy-five audit reports and various other reports concerning the financial transactions of the companies and persons involved were admissible as evidence during the trial. This was answered in the affirmative by the City Court on 15 August 1996, a decision that was upheld on appeal by the High Court on 23 September 1996, and by the Supreme Court (Højesteret) on 4 March 1997. A decision of 23 September 1996, according to which the City Court judge did not have to vacate his seat on the bench due to disqualification, was upheld on appeal by the High Court on 7 October 1996. The proceedings began as planned before the City Court on 9 October 1996. Thereafter approximately two court hearings took place every week, except from the month of July when the parties involved took their summer holiday. Altogether, one hundred and fifty-eight whole court days were used before the City Court for the trial, including fours days of pre-trial review. In February 1997 fifty-two additional dates for hearings to be held during 1998 were scheduled. On 8 August 1997 dates for twelve additional hearings were scheduled for November and December 1998, and fifteen additional hearings for January to March 1999. In December 1997, the City Court allowed that one of the co-accused change counsel, provided that such would not entail any delay of the trial. Also, the City Court stated that the trial had to be brought to an end within the dates previously scheduled and that no extension would be permitted. In the period from 9 October 1996 until 28 January 1999, the applicant, the seven coaccused, and fifty-three witnesses were heard, including two state-authorised public accountants, who gave evidence over several days in which they collaborated on the audit reports, etc. In addition, statements of accounts and a considerable amount of other documentary evidence were presented about e.g. corporate structures involving Danish and foreign companies and money transactions in Danish and foreign banks. Each exhibit for the case took up about one hundred and thirty-five A4 binders and contained approximately fifty thousand pages of documentary evidence, including the seventy-five audit reports concerning the solvent companies that had been stripped of their tax assets and about eight audit reports concerning companies used for emptying the solvent companies and a statement of financial transaction. On 8, 11 And 15 March 1999 the public prosecutor gave his closing speech. Counsel for the applicant gave his closing speech on 10 and 11 May 1999. Counsel for the seven co-accused gave their closing speeches on 12, 17, 18, 19, 20, 25 and 26 May 1999. On 31 May 1999 a hearing was held at which the applicant and the coaccused were given an opportunity to make a statement. The proceedings were then adjourned pending the City Court's deliberations. The court records of the proceedings ran to two thousand three hundred and twenty-three pages. By judgment of 10 August 1999, which ran to two hundred and twentyfive pages, the City Court convicted the applicant of inter alia tax assets stripping in respect of the said seventy-two counts of the indictment. The court found that the applicant was one of the principal offenders and that he had been involved with tax asset stripping concerning an amount of approximately DKK 76 million equal to approximately € 10,133,330. He was sentenced to four years' imprisonment. In addition, for an indefinite period, he was deprived of his right to establish or to become manager and/or member of a director's board in a private limited company, or in a company or an association which would require public approval. By the same judgment five of the coaccused were convicted and two of them acquitted. As to the length of the proceedings the City Court stated as follows: “The [applicant and the co-accused] were charged in the period from February to April 1993, and prosecution was initiated by indictment of 1 July 1996. The trial started in October 1996. There is no basis for establishing that the investigation has been unnecessarily inactive during any period, nor is there any reason to criticise the scope or length of the investigation in view of the nature and magnitude of the case. Thus, there is no violation of Article 6 of the Convention on Human Rights”. However, when imposing the sentence the City Court stated: “Although the public prosecution cannot be blamed for the length of the proceedings, nevertheless, in metering out the sentence the court has taken into consideration the strain inflicted on [the applicant and the co-accused], due to the fact that the proceedings have extended over so many years”. On 16 August 1999 the applicant appealed against the judgment to the High Court and the Public Prosecution cross-appealed on 20 August 1999. The judgment was also appealed against by five of the co-accused, in respect of whom the public prosecution served a cross-appeal during August and September 1999. On 18 October 1999 the High Court appointed back-up counsel for the applicant and the co-accused during the appeal proceedings and in agreement with the parties scheduled a pre-trial review to take place on 11 January 2000. According to the court records of the latter day, the High Court tried to commence the hearings in June 2000, but that this was not possible as several of the counsel chosen by the co-accused had to appear as counsel in other prolonged proceedings. They were therefore unable to attend the appeal proceedings until January 2001. This also applied to one of the applicant's counsel, who could not attend the appeal proceedings because he had to appear for the defence in three other comprehensive criminal proceedings which would take up seventy-two days in the period from 1 June 2000 until 1 January 2001. In addition, he had to attend a number of hearings in other less comprehensive cases in the same period. Thus, the proceedings were scheduled to begin on 30 January 2001 and, at the request of the parties involved, the High Court fixed sixty-eight hearings to take place. In the meantime practical and procedural matters were dealt with e.g., in respect of the latter, the High Court's intention to lift a prohibition against disclosure of names. The trial commenced on 30 January 2001, and thereafter two court hearings took place almost every week. On 12 March 2001 the Public Prosecutor requested that the proceedings against one of the co-accused be separated for a special hearing and that a judgment to acquit him be passed immediately because some conditions of the Administration of Justice Act relating to the indictment had not been satisfied. The High Court passed judgment accordingly. On 19 March 2001 one of the co-accused withdrew his appeal. As the Public Prosecutor withdrew his cross-appeal the High Court dismissed the case as to this co-accused. On 26 March the prosecution submitted an amended indictment of 21 March 2001. Notably, the description of the time of the alleged crime was changed from periods into exact dates in each count of the indictment, and one sentence was inserted as to the counts concerning aggravated debtor fraud so that not only the loss actually caused by the applicant was included, but also the obvious risk of a loss that he had inflicted the private limited companies. Furthermore, the prosecution withdrew four counts of the indictment. Counsel for the applicant and the co-accused claimed dismissal or further corrections of the amended indictment, which was dismissed by the High Court on 2 April 2001. In the period between 26 June and 7 August 2001 the proceedings were adjourned due to illness on behalf of one of the co-accused. On 17 September 2001 the case was set down for judgment. In the period between 30 January and 17 September 2001, altogether thirty-seven court hearings were held, during which the applicant, the coaccused and witnesses were heard, including one of the stateauthorised public accountants. In addition, audit reports, statements of accounts and a considerable amount of other documentary evidence were presented. By judgment of 19 December 2001, which ran to fifty-nine pages, the applicant was convicted in accordance with the indictment of 21 March 2001, but for seven counts, including the four counts that the prosecution had already withdrawn. Thus, the applicant was found guilty of sixty-five counts, in which the total sum of unpaid taxes amounted to approximately DKK 71,000,000 equal to approximately € 9,466,500. The sentence was increased to five years' imprisonment and the deprivation of his right to become manager etc. was confirmed. As to the length of the proceedings the High Court stated: “The acquisitions of the approximately 75 companies originally comprised by the indictment took place from October 1989 until October 1992. In February-March 1993 [the applicant] and [two of the co-accused] were charged with fraudulent preference in relation to the acquisition of 27 inactive, solvent companies which had made claims against the tax authorities for payments of tax compensation of just over DKK 29 million. A report was lodged with the police in May 1992. The indictment was drafted in July 1996, the City Court trial commenced in October 1996, and judgment was passed on 10 august 1999. The High Court trial commenced in January 2001 after a pre-trial review had been held with the then eight counsel in January 2000. Although proceedings lasting almost nine years in a criminal case must be considered, in principle, as a violation of the right to a “hearing within a reasonable time” afforded by Article 6 § 1 of the European Convention on Human Rights, no violation is found to have occurred in this case in respect of any of the defendants. [When reaching this] decision it has been found of importance that the case turned out to involve a far larger number of company acquisitions than originally assumed, that the company acquisitions took place by means of a large number of companies, both as intermediaries and as buyers, that the various tax elimination initiatives made it necessary for the Public Prosecutor to gather [information on] and elucidate a large number of intricate corporate structures, several of which were domiciled in or connected with foreign, sometimes exotic tax havens where investigation had to be made, and that consequently extremely comprehensive audit work was required to elucidate each individual company's money transactions, which were normally pure book entries without any real content. It cannot be attached importance that the City Court proceedings lasted about three years and at that time concerned eight defendants, as the relevant crime was a new form of complex economic crime involving examination of a considerable number of witnesses and production of substantial documentary evidence, and each defendant's role in the group had to be clarified. Moreover, no inactive periods are found to have occurred during the proceedings”. When metering out the sentence the High Court stated: “The High Court ... has taken into account that [the case] concerns aggravated and systematic offences against property involving very substantial amounts and committed by several offenders jointly under cover of highly non-transparent transactions. The length of the time elapsed since the offences were committed has also been taken into account. In view of the nature and the scope of the offences, the High Court has found no basis for suspending the sentences imposed in full or in part.” The applicant's request of 21 December 2001 for leave to appeal against the judgment to the Supreme Court was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 15 April 2002.
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train
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001-72783
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ENG
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GBR
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ADMISSIBILITY
| 2,006
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Z. and T. v. THE UNITED KINGDOM
| 1
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Inadmissible
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Josep Casadevall;Nicolas Bratza
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The applicants, Z. born in Pakistan in 1973 and T. born in Pakistan in 1965 are Pakistani citizens currently resident in Hull. They are represented before the Court by Mr D. Foster, a solicitor practising in Guildford. The applicant sisters are Christians. Their parents, Mr and Mrs M., were active in the Christian community in Bahawalpur and Mr M. was a Methodist minister for 38 years. In 1990, the second applicant, T. married her cousin, also a christian and son of a minister in 1990. She went to live in Peshawar and from 1999 worked as a teacher in the Presentation Convent School in Peshawar. The first applicant, Z. had married a fellow Christian in 1997 and moved to live in Sukkur. On 28 October 2001, after the attacks in the United States on 11 September 2001, there was an attack on the Methodist church in Bahawalpur. Machine guns were fired into the church and many worshippers were killed and injured. One of the policeman on duty at the church was killed. Mrs M. was among the severely injured. Mr and Mrs M, and their son Dr H. fled to the United Kingdom to obtain medical treatment for Mrs M. Their son I. was already in the United Kingdom. All were granted asylum. The applicants’ sister A. was also granted asylum on 3 September 2004. On 28 April 2004, the first applicant travelled to the United Kingdom with her children on a visitors visa to see her mother who continued to be unwell. On 17 May 2004, Mrs M. died. On 27 May 2004 the second applicant came to the United Kingdom with her family to attend the funeral. On 29 April 2004, a day after her arrival, the first applicant applied for asylum, along with her husband and daughter, invoking Articles 2, 3, 5, 6, 8, 9, 10, 11, 12 and 14 of the Convention. She stated that there had been a bomb threat on their church in Sukkur during 2002 when the police had deactivated an explosive device, while in October 2003 her husband and his brother had been attacked by extremists. In the latter incident, although there was shooting, no-one was hurt and the assailants absconded with her husband’s motorbike. She and her husband had also received threatening telephone calls. By letter dated 25 June 2004, the Secretary of State gave reasons for refusal, considering that the applicant had never been physically attacked or ill-treated on the basis of her beliefs and had not been present during the bomb threat at the church where the police had successfully intervened. He noted that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. By decision of 18 February 2005, the Adjudicator refused her appeal, finding that the authorities offered protection to churches, inter alia convicting six men for an attack on a Christian church. He also noted that the applicant had not herself been personally or directly threatened with violence and that she had lived some distance from Bahawalpur, having no direct connection with the incident there. He noted that the assault on her husband in 2003 had been reported as robbery without any mention of religious motivation for the attack. He found no problem arising under Article 9 as there was no bar on Christianity as shown by the fact that her father had been a minister for 38 years. He concluded that she had not shown that she was risk. On 26 March 2005, the Immigration Appeal Tribunal (IAT), refused the first applicant permission to appeal noting a recent precedent from the House of Lords in Ullah (R (Ullah) v. a Special Adjudicator [2004] INLR 381) and finding in line with that authority that the situation of Christians in Pakistan who, for example, had their own representatives in Parliament was not so flagrantly bad as to allow exceptionally a case to proceed under Article 9 where there were no grounds under Article 3. On 13 August 2004, the second applicant applied for asylum, together with her children and husband. She invoked Articles 2, 3, 8, 9 and 14 of the Convention, claiming that she feared that if she returned to Pakistan she would be subjected to attack by Muslim extremists because she was a Christian. She referred to having received nuisance telephone calls during the night after the incident on the Bahawalpur Church. By letter dated 6 October 2004, the Secretary of State refused asylum, noting inter alia that Christians were a recognised minority group under the Constitution of Pakistan, that the Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. He also did not consider that the applicant was at risk because of the incident at Bahawalpur as she lived in Peshawar and since the incident had suffered nothing more serious than nuisance telephone calls. He found no ground for a breach of Article 9 as she had not shown any risk of a flagrant denial of her rights. By decision of 18 January 2005, the Adjudicator refused the applicant’s appeal, noting that the applicant had not applied for asylum at the time of the 2001 attack but had remained in Pakistan for another three years. While she claimed to have received unpleasant telephone calls, she had been able to deal with them by switching off the phone. He found no indication that there would be insufficient protection offered to her by the authorities who had placed guards on the churches and on the school where she worked. On 1 March 2005, the IAT refused permission for an appeal, noting that the second applicant had not raised her Article 9 complaint before the Adjudicator even though she was represented by specialist advocates and finding no error in the Adjudicator’s decision. In the case of R. (on the application of Ullah) v. Special Adjudicator ([2004] INLR 381), the claimant entered the United Kingdom from Pakistan and applied for asylum, claiming to have a well-founded fear of persecution as a result of his religious beliefs. The Secretary of State dismissed his claim and held that he had not qualified for permission to remain in the country by reason of any Article of the Convention. The claimant’s appeal was dismissed, the Special Adjudicator finding that he did not have a well-founded fear of persecution and that, while Article 9 of the Convention could be engaged in such a situation, the Secretary of State had acted lawfully and proportionately and in pursuance of the legitimate aim of immigration control in refusing leave to remain. The Court of Appeal dismissed the claimant’s further appeal, holding that where the Convention was invoked on the sole ground of the treatment to which an alien was likely to be subjected by the receiving State and that treatment was not sufficiently serious to engage Article 3, the court was not required to recognise that any other Article of the Convention was, or might be, engaged. The House of Lords dismissed the claimant’s further appeal. However, differing from the Court of Appeal, the Lords held that where in relation to the removal of an individual from the United Kingdom the anticipated treatment did not meet the minimum requirements of Article 3, other Articles of the Convention might be engaged. While it was hard to conceive that a person could successfully resist expulsion in reliance on Article 9 without being entitled either to asylum on the ground of a well-founded fear of being persecuted for reasons of religious or personal opinion or to resist expulsion in reliance on Article 3, such a possibility could not be ruled out. It would be necessary for a claimant to establish at least a real risk of a flagrant violation of the very essence of the right before the other Articles could become engaged. The House of Lords found that, in the instant appeal, the claimant’s case had not come within the possible parameters of a flagrant, gross or fundamental breach of Article 9 such as to amount to a denial or nullification of the rights conferred by the Article.
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train
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001-100989
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ENG
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ROU
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CHAMBER
| 2,010
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CASE OF MARIA ATANASIU AND OTHERS v. ROMANIA
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Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary and non-pecuniary damage - award
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
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6. The first two applicants, Mrs Maria Atanasiu and Mrs Ileana Iuliana Poenaru, were born in 1912 and 1937 respectively and live in Bucharest. The third applicant, Mrs Ileana Florica Solon, was born in 1935 and lives in Bucharest. 7. Following the establishment of the communist regime in Romania in 1947, the State proceeded to nationalise buildings and agricultural land on a large scale. 8. One of the nationalisation decrees applicable in relation to immovable property was Decree no. 92/1950, under which buildings belonging to former industrialists, owners of large estates, bankers and owners of large trading enterprises were nationalised. Although this decree did not cover workers, civil servants, academics or retired persons, numerous properties belonging to those social categories were also nationalised. Between 1949 and 1962 virtually all agricultural land passed into the ownership of the agricultural cooperatives. 9. After the fall of the communist regime the State enacted a series of laws aimed at affording redress for breaches of property rights by the former regime. 10. Laws nos. 112/1995 and 10/2001 established the principle of restitution of nationalised immovable property and compensation in cases where restitution was no longer possible. Law no. 112/1995 introduced a cap on compensation, but this was subsequently abolished by Law no. 10/2001. 11. With regard to agricultural land, Laws nos. 18/1991, 169/1997 and 1/2000 increased successively the surface area of land that could be returned to its owners. The last of these laws established a right to compensation in respect of land which could no longer be returned. 12. Law no. 247/2005 harmonised the administrative procedures for restitution of properties covered by the above-mentioned laws. 13. According to a partial calculation made by the Government, over two million claims under the reparation laws have been registered; the amount needed to pay the corresponding compensation is estimated at twenty-one billion euros (EUR). 14. In 1950, under Decree no. 92, the State nationalised several buildings belonging to Mr Atanasiu, the first applicant's husband and the second applicant's father. One of the buildings was located at 189 Calea Dorobanţilor in Bucharest. 15. On 15 May 1996, relying on the provisions of Law no. 112/1995, Mr Atanasiu applied to the local board established to deal with applications lodged under that Law, seeking the return of the building. He received no response. On 25 October 1996 Mr Atanasiu died and the applicants were recognised as his sole successors in title. 16. Under the terms of contracts entered into in accordance with Law no. 112/1995, the company managing the building sold the nine flats located therein to the tenants. 17. On 15 November 1999 the applicants lodged a claim with the domestic courts for restitution of the building. They relied on the provisions of ordinary law concerning respect for the right of property and alleged that the nationalisation of the property had infringed Mr Atanasiu's legal rights. Subsequently, on the basis of a letter from Bucharest city council stating that three of the flats had not been sold, the applicants restricted their claim to that part of the building. 18. In a judgment of 24 March 2000 the Bucharest Court of First Instance allowed the claim and ordered that the above-mentioned part of the building be returned to the applicants. The court held that the building had been nationalised unlawfully since Mr Atanasiu had not belonged to any of the social categories covered by the nationalisation decree and the State could not therefore claim a valid title to the property. Following an appeal and a further appeal (recurs) by the city council, the judgment was upheld and became final. 19. The applicants lodged claims in separate proceedings seeking the restitution of the other flats. In total, they obtained five final rulings in the form of judgments of the Bucharest Court of Appeal dated 1 June 2001, 19 May 2004, 1 May 2005, 5 May 2005 and 30 October 2007 directing the purchasers and the local authorities to return seven flats to them. In the case of one other flat they obtained a decision of the Bucharest County Court dated 30 November 2009, still open to appeal, ordering the local authorities to pay them compensation. The last remaining flat in the building is the subject of the present application. Each of the abovementioned decisions was based on the finding that the building had been nationalised unlawfully. 20. On 6 April 2001 the applicants brought an action in the Bucharest County Court seeking to recover possession of flat no. 1. The action was directed against the City of Bucharest, the company which managed the building and the purchasers of the flat, Mr and Mrs G. The applicants also sought to have the contract of sale of 19 December 1996 rescinded. 21. In a judgment of 4 June 2002 the County Court granted the action, declared the sale null and void and ordered the defendants to return the flat to the applicants. The court ruled that the nationalisation of the building had been unlawful and that the contract of sale was not valid. 22. In a judgment of 14 November 2002 the Bucharest Court of Appeal allowed the appeals lodged by the City of Bucharest and Mr and Mrs G. It thus dismissed the applicants' action, holding that the nationalisation had been lawful and that the contract of sale was valid since it complied with the conditions laid down by Law no. 112/1995. The applicants lodged a further appeal. 23. In a final judgment of 11 March 2005 the High Court of Cassation and Justice (“the HCCJ”) admitted the appeal for adjudication but dismissed the applicants' arguments and declared their action inadmissible. It considered that the applicants had lodged their action after the date of entry into force of Law no. 10/2001 (see paragraphs 25-27 below) and that after that date they could claim restitution of the flat only in the circumstances and in accordance with the procedure laid down by Law no. 10/2001. 24. As to the application to have the contract of sale rescinded, the HCCJ upheld the reasons given by the Court of Appeal but ruled that, since the applicants' main complaint concerning the restitution of the flat had been dismissed, the application for rescission was likewise inadmissible. 25. On 9 August 2001, relying on the provisions of Law no. 10/2001, the applicants lodged a claim with Bucharest city council for restitution of the whole of the building located on Calea Dorobanţilor. 26. Having received no reply within the statutory sixty-day timelimit, they brought an action against the city council on 26 July 2002. In a judgment of 10 November 2003 the Bucharest Court of Appeal allowed the action and ordered the city council to give a decision on the applicants' claim. Following a further appeal by the city council the HCCJ dismissed the latter's argument to the effect that the delay had been caused by the applicants' failure to submit a complete file. In a final judgment of 18 April 2005 it upheld the order against the city council and ruled that no fault capable of causing the delay could be attributed to the applicants. 27. On 23 March 2010 the city council wrote to the Romanian Government Agent informing him that consideration of the claim had been suspended pending receipt of the missing documents. 28. In 1950 a plot of land in Craiova belonging to the applicant's parents was nationalised. Part of the land was subsequently turned into a botanic garden and allocated to the University of Craiova, a public highereducation establishment. 29. On 28 June 2001, relying on Law no. 10/2001, the applicant requested the University of Craiova to pay her compensation in respect of the nationalised land. She pointed out that the University's botanic garden occupied 1,950 sq. m out of a total area of 2,140 sq. m. 30. By decision no. 600/A/2001 of 10 July 2001 the University of Craiova rejected the applicant's request on the ground that there were no funds in its budget which could be used for compensation of that kind. The University forwarded her request to the Dolj prefect's office. 31. On 18 July 2001 the applicant brought legal proceedings against the University of Craiova, seeking compensation in respect of the 2,140 sq. m of land, the value of which she estimated at seventy United States dollars (USD) per square metre. 32. At the request of the University, the Dolj County Court, in an interlocutory judgment of 5 December 2002, ordered that the State, represented by the Ministry of Finance, be joined to the proceedings as a defendant. 33. In a judgment of 13 February 2003 the County Court dismissed the applicant's claims as premature, finding that she should have awaited a decision from the prefect's office on her request for compensation. However, the court took the view that the applicant had demonstrated her parents' title to the property and the fact that the land had been wrongfully nationalised. 34. The applicant appealed against that judgment. 35. On 21 November 2003 the Craiova Court of Appeal allowed the applicant's appeal, quashed the first-instance judgment and set aside decision no. 600/A/2001. It based its ruling on a letter from the University of Craiova to the Dolj prefect's office dated 13 November 2003, in which the former had agreed to the award of compensation to the applicant. In the operative part of its decision the Court of Appeal assessed the compensation due to the applicant at USD 70 per square metre, in line with the agreement reached between the parties during the proceedings. The court also stated in its reasoning that the compensation should be paid to the applicant once a special law had been enacted on the terms and procedure governing compensation and the amount of compensation awards. 36. The applicant, the University of Craiova and the Ministry of Finance all lodged further appeals against the decision, on the ground that no agreement had been reached between the parties. The applicant also alleged that the impugned decision did not state which of the two defendants – the University or the Romanian State – was liable for payment. 37. In a final judgment of 30 March 2006 the HCCJ dismissed the appeals and upheld the decision of the Craiova Court of Appeal of 21 November 2003. It took the view that, under section 24 of Law no. 10/2001, the University, which had been using the land claimed by the applicant, was obliged, if restitution was not possible, to make an offer of compensation corresponding to the value of the property and to forward its decision to the Dolj prefect's office. 38. The HCCJ went on to observe that, during the proceedings, the University of Craiova had submitted the letter of 13 November 2003 in which it informed the Dolj prefect's office of its consent to the award of compensation to the applicant in the amount claimed by her. The HCCJ took the view that the content of that letter constituted an offer made in accordance with sections 24 and 36 of Law no. 10/2001 and accepted by the applicant. According to the HCCJ, the offer from the University amounted to acceptance on its part of the applicant's claims. Accordingly, the Court of Appeal had simply noted the fact that the University had taken steps in the course of the proceedings to comply with its statutory obligations. 39. The HCCJ further stated that no specific obligation had been established on the part of the Romanian State, which had been a party to the proceedings, as the actual award of compensation in the amount established was to be made in accordance with the special procedure laid down by Law no. 247/2005. 40. In a decision of 27 January 2006 the University of Craiova made a proposal to the Dolj prefect's office for the applicant to be awarded compensation in respect of the 2,140 sq. m plot of land in accordance with the Craiova Court of Appeal decision of 21 November 2003. The University based its decision on Law no. 10/2001. 41. In reply to a letter dated 24 December 2008 from the National Agency for Property Restitution (“the NAPR”) requesting it to take a decision on the basis of Law no. 247/2005, the University of Craiova proposed to the Dolj prefect's office on 24 March 2009 that the applicant be awarded the compensation in question. The University stated that the file would be sent to the Central Compensation Board (Comisia centrală pentru Stabilirea Despăgubirilor – “the Central Board”). 42. The Central Board did not inform the applicant of any action taken in response to that decision. To date, no compensation has been paid to her. 43. At the hearing of 8 June 2010 the Government stated that the applicant's claim would receive priority treatment. 44. The main legislative provisions in force are described in Brumărescu v. Romania [GC], no. 28342/95, §§ 34-35, ECHR 1999VII; Străin and Others v. Romania, no. 57001/00, § 19, ECHR 2005VII; Păduraru v. Romania, no. 63252/00, §§ 23-53, ECHR 2005XII (extracts); Viaşu v. Romania, no. 75951/01, §§ 30-49, 9 December 2008; Faimblat v. Romania, no. 23066/02, §§ 16-17, 13 January 2009; Katz v. Romania, no. 29739/03, § 11, 20 January 2009; Tudor Tudor v. Romania, no. 21911/03, § 21, 24 March 2009; and Matieş v. Romania, no. 13202/03, §§ 13-17, 8 June 2010. They can be summarised as follows. 45. The Real Property Act (Law no. 18 of 19 February 1991) conferred on former owners and their successors in title the right to partial restitution of agricultural land. The most important amendment to that Act was made by Law no. 1 of 11 January 2000, which raised the ceiling for entitlement to fifty hectares per person in the case of arable land and one hundred hectares per person for pasture land. If restitution was not possible, the beneficiaries were entitled to compensation. 46. In the absence of special legislation laying down rules governing nationalised immovable property, the courts initially considered that they had jurisdiction to examine the issue of the lawfulness of nationalisation decisions and to order that properties be returned to their owners if they were found to have been nationalised unlawfully. 47. The entry into force of Law no. 112 of 25 November 1995 on the legal status of certain residential property authorised the sale of such properties to the tenants. Properties could be returned to the former owners or their successors in title only if the persons concerned were living in the properties as tenants or the properties were unoccupied. If restitution was not possible the former owners could claim compensation, which was capped. 48. As to buildings and land which had belonged to national minority organisations and religious institutions, Government Emergency Ordinances no. 83 of 8 June 1999 and no. 94 of 29 June 2000 provided for them to be returned to their owners or, failing that, for compensation to be awarded. 49. Law no. 10 of 8 February 2001 on the rules governing immovable property wrongfully acquired by the State established the principle of restitution of the properties concerned. In cases where restitution was no longer possible the former owners or their successors in title could claim compensation, which was not capped. 50. Law no. 1 of 30 January 2009 provides that immovable property sold under Law no. 112/1995 may no longer be returned to the former owners and that only alternative measures of redress are possible. The choice between an action for recovery of possession and the special restitution procedure under Law no. 10/2001 has been abolished in favour of the latter. 51. In addition to the properties covered by the above-mentioned legislative provisions, the State undertakes to compensate former owners or their successors in title who lost buildings, land or crops abandoned on certain territories following border changes before and during the Second World War. The administrative procedure for obtaining compensation in respect of such property, provided for by Laws nos. 9/1998, 290/2003 and 393/2006 and coordinated by the NAPR, differs from that for nationalised immovable property, and the necessary funds come out of the State budget. 52. Law no. 247/2005 on judicial and property reform, which is still in force, made substantial amendments to the existing compensation laws, in particular by introducing a harmonised administrative procedure for claims concerning properties covered by Laws nos. 1/2000 and 10/2000 and by Government Emergency Ordinances nos. 83/1999 and 94/2000. 53. The law in question provides that, where restitution is not possible, the beneficiaries of reparation measures can opt either for compensation in the form of goods and services or for payment of an amount calculated in accordance with “domestic and international practice and standards on compensation for buildings and houses wrongfully acquired by the State”. 54. The leading role in implementing this law was entrusted to two newly created structures: the Central Compensation Board (Comisia centrală pentru Stabilirea Despăgubirilor – “the Central Board”) and the National Agency for Property Restitution (Autoritatea Naţională pentru Restituirea Proprietăţilor – “the NAPR”). 55. New time-limits were set for lodging claims for restitution or compensation: sixty days for agricultural land and six months for immovable property that had belonged to religious institutions and national minority organisations. 56. The lawfulness of local authority decisions awarding compensation or proposing an award must be reviewed by the prefect, who must then forward the decisions to the Central Board. 57. The provisions governing such review are set out in Government Decree no. 128 of 6 February 2008, according to which, if the prefect considers the decision of the mayor or other local administrative authorities to be unlawful, he may appeal against it in administrative contentious proceedings within one year of the decision. 58. On receipt of the file the Central Board must verify the lawfulness of the decision refusing restitution and subsequently forward the file to “approved assessors” for the purpose of fixing the amount of compensation. On the basis of their report the Central Board either issues a “compensation certificate” or returns the file to the local authorities for fresh examination. 59. Law no. 247/2005 does not lay down time-limits for the processing of files by the Central Board or specify the order in which they should be dealt with. On 28 February 2006 the Central Board decided that files would be processed in random order. On 16 September 2008 it reversed that decision and decided to deal with them in the order in which they were registered. 60. In order to deal with the payment of compensation awarded by the Central Board, an undertaking for collective investment in transferable securities was set up, known as the Proprietatea Fund. Its capital is made up largely of State holdings in various companies. 61. Law no. 247/2005 provided that the Proprietatea Fund was to take the necessary steps, within thirty days from its establishment, with a view to having its shares listed on the stock exchange so that the beneficiaries of compensation decisions taken under the restitution laws could sell their shares and receive the proceeds at any time. 62. Since July 2005, Law no. 247/2005 has been amended several times as regards both the operation and financing of the Proprietatea Fund and the method of calculating compensation and the procedure for making awards. 63. On 28 June 2007 the Government enacted Emergency Ordinance no. 81/2007 amending the organisation and operation of the Proprietatea Fund. Among other measures, the ordinance, which has since been confirmed by Law no. 142 of 12 July 2010, made it possible for beneficiaries from the Fund to receive part of the amount due in cash. 64. Under the terms of Government Decree no. 128 of 6 February 2008 concerning the implementation of Ordinance no. 81/2007, following the issuing of the “compensation certificate” (titlu de despagubire) by the Central Board, the person concerned has a choice between receiving part of the amount in cash (up to a limit of 500,000 Romanian lei (RON)) and the remainder in shares, or receiving the entire amount in shares. The preferred option must be notified to the NAPR, which replaces the “compensation certificate” with a “payment certificate” (titlu de plata) corresponding to the amount to be paid in cash and a “conversion certificate” (titlu de conversie) corresponding to the remainder, to be converted into Proprietatea shares. 65. The persons concerned have to make their choice within three years from the issuing of the “compensation certificate” by the Central Board. The corresponding requests are to be examined in chronological order, but no express timelimit is laid down. 66. Cash sums up to and including RON 250,000 must be paid within one year from the date on which the payment certificate is issued; for sums between RON 250,000 and RON 500,000 the time-limit is two years. 67. Under Government Emergency Ordinance no. 62 of 30 June 2010 the payment of cash sums was suspended for a two-year period in order to balance the budget. During that period “compensation certificates” may only be converted into Proprietatea shares. 68. At the request of some members of Parliament the Constitutional Court reviewed the constitutionality of Laws nos. 112/1995, 1/2000, 10/2001 and 247/2005 prior to their entry into force. In decisions given on 19 July 1995, 27 December 1999, 7 February 2001 and 6 July 2005, it held that the laws in question were compatible with the Constitution, with the exception of the provisions of Law no. 112/1995 which reaffirmed the State's ownership of immovable property which it had acquired without title; these provisions also made the adoption of reparation measures conditional on proof that the claimant had his or her permanent residence in Romania. 69. In the context of the review of the constitutionality of the legislation after its entry into force, the Constitutional Court was called upon to rule again on whether some of the provisions were compatible with the Constitution. It dismissed most of the objections as to constitutionality raised in the domestic courts and reaffirmed that the laws in question were compatible with the Constitution. 70. In decision no. 830 of 8 July 2008 the Constitutional Court held that any person who had lodged a claim under Law no. 10/2001 within the statutory time-limit was entitled to reparation measures and in particular to restitution of the property concerned if it had been nationalised unlawfully. 71. After the entry into force of Law no. 112/1995, the practice of the domestic courts was undermined by the absence of a stable legislative framework. The courts gave several different interpretations of concepts such as State “title”, the purchaser's “good faith” and “appearances in law”, and also of the relationship between actions for recovery of possession and the restitution procedures provided for by the special legislation (see Păduraru, cited above, § 96). 72. As to the position of the HCCJ concerning the jurisdiction of the domestic courts to determine claims for restitution of nationalised properties in cases where the administrative authorities had failed to respond to the notifications issued under Law no. 10/2001, the full court, in judgment no. 20 of 19 March 2007 published in the Official Gazette on 12 November 2007, held following an appeal in the interests of the law that the domestic courts had jurisdiction to determine the merits of claims and, where appropriate, to order the restitution of the property in question or award statutory compensation. 73. In judgments nos. 53 and 33 of 4 June 2007 and 9 June 2008, published in the Official Gazette on 13 November 2007 and 23 February 2009, the HCCJ, sitting as a full court and again ruling on two appeals in the interests of the law, held that following the entry into force of Law no. 10/2001 actions for recovery of possession of properties expropriated or nationalised before 1989 which had been lodged in parallel with the restitution procedure laid down by Law no. 10/2001 were inadmissible. However, as an exception to that rule the HCCJ held that persons who had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention could bring an action for recovery of possession provided it did not infringe ownership rights acquired by third parties in good faith. 74. In judgment no. 52 of 4 June 2007, published in the Official Gazette on 22 February 2008, the HCCJ, sitting as a full court and ruling once more on an appeal in the interests of the law, held that the administrative procedure provided for by Law no. 247/2005 did not apply to claims for restitution or compensation already determined by the local administrative authorities under Law no. 10/2001. 75. With regard to local administrative authority decisions granting claims for restitution or compensation under Law no. 10/2001, the HCCJ held that they gave rise to property rights for the persons concerned and that, accordingly, they could no longer be revoked or set aside by the local administrative authorities or the Central Board (judgments nos. 6723 of 17 October 2007 and 6812 of 10 November 2008 of the Civil Division of the HCCJ). 76. As to claims submitted to the Central Board under Law no. 247/2005 on which no decision had been given, the HCCJ ruled that the courts could not take the place of the Central Board in calculating the compensation (judgments nos. 4894 and 5392 of 27 April and 11 May 2009 of the Civil Division of the HCCJ). However, the HCCJ ruled that although the Central Board was not bound by any statutory time-limit in giving its decision it was required to determine claims for restitution or compensation within a “reasonable time” as construed by the case-law of the European Court of Human Rights (judgments nos. 3857 and 3870 of 4 November 2008 of the Administrative and Taxation Disputes Division of the HCCJ). 77. The statistics issued by the NAPR in May 2010 and provided by the Government are as follows: – 202,782 claims had been registered with the local authorities under Law no. 10/2001. 119,022 files had been examined and an award of compensation had been proposed in 56,000 cases; – 46,701 files compiled under Law no. 10/2001 and 375 under Government Emergency Ordinances nos. 83/1999 and 94/2000 had been forwarded to the Central Board, which had issued 10,345 “compensation certificates”. The remaining files were under consideration; – with regard to Laws nos. 18/1991 and 1/2000 concerning agricultural land, according to a partial calculation relating to eight out of forty-one counties, almost one and a half million claims for restitution or compensation had been lodged with the local authorities. A total of 55,271 files compiled under the laws in question had been forwarded to the Central Board, which had granted 21,279 of the claims and had issued 10,915 “compensation certificates”. The remaining files were under consideration; – with regard to claims for restitution of land or compensation under Law no. 247/2005, over 800,000 claims had been registered with the local authorities. Approximately 172,000 of these had been granted and compensation had been proposed; – of the persons who had received “compensation certificates”, 15,059 had opted to receive part of the sum in cash, amounting to a total of about RON 2 billion (approximately EUR 400 million). 3,850 people had received payments totalling about RON 350 million (approximately EUR 80 million). 78. Shares in the Proprietatea Fund, in existence since December 2005, are still not listed on the stock exchange. However, since 2007 the Fund has been paying dividends to its shareholders and since March 2008 its shares may be sold by means of direct transactions under the supervision of the stock exchange regulatory authority. By way of example, 206 sales of shares were registered in May 2010. 79. According to the information published on 4 June 2010 by the Proprietatea Fund, the Ministry of Finance is the majority shareholder, with 56% of the Fund's shares. A further 12% are held by 103 legal entities, while 31.4% are owned by 3,622 individual shareholders. 80. According to Government estimates a total of EUR 21 billion will be needed to pay the compensation provided for by the compensation laws. 81. In Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted on 12 May 2004, the Committee of Ministers stated as follows: “The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe, ... Invites the Court: I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments; II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.” 82. Committee of Ministers Recommendation Rec(2004)6 on the improvement of domestic remedies, adopted on 12 May 2004, provides: “The Committee of Ministers, in accordance with Article 15.b of the Statute of the Council of Europe, ... Recommends that member states, taking into account the examples of good practice appearing in the appendix: I. ascertain, through constant review, in the light of case-law of the Court, that domestic remedies exist for anyone with an arguable complaint of a violation of the Convention, and that these remedies are effective, in that they can result in a decision on the merits of the complaint and adequate redress for any violation found; II. review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court; III. pay particular attention, in respect of aforementioned items I and II, to the existence of effective remedies in cases of an arguable complaint concerning the excessive length of judicial proceedings; ...” 83. The relevant part of the Appendix to Committee of Ministers Recommendation Rec(2004)6 reads as follows: “... 13. When a judgment which points to structural or general deficiencies in national law or practice ('pilot case') has been delivered and a large number of applications to the Court concerning the same problem ('repetitive cases') are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system. 14. The introduction of such a domestic remedy could also significantly reduce the Court's workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. The existence of a remedy aimed at providing redress at national level for this category of people might allow the Court to invite them to have recourse to the new remedy and, if appropriate, declare their applications inadmissible. 15. Several options with this objective are possible, depending, among other things, on the nature of the structural problem in question and on whether the person affected by this problem has applied to the Court or not. 16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation. 17. Within the framework of this case-by-case examination, states might envisage, if this is deemed advisable, the possibility of reopening proceedings similar to those of a pilot case which has established a violation of the Convention, with a view to saving the Court from dealing with these cases and where appropriate to providing speedier redress for the person concerned. The criteria laid out in Recommendation Rec(2000)2 of the Committee of Ministers might serve as a source of inspiration in this regard. 18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases. 19. However, it would not be necessary or appropriate to create new remedies, or give existing remedies a certain retroactive effect, following every case in which a Court judgment has identified a structural problem. In certain circumstances, it may be preferable to leave the cases to the examination of the Court, particularly to avoid compelling the applicant to bear the further burden of having once again to exhaust domestic remedies, which, moreover, would not be in place until the adoption of legislative changes. ...” 84. On 2 March 2010, at their 1078th meeting, the Ministers' Deputies responsible for supervising execution of the Court's judgments observed, with reference to the Străin and Viaşu cases and over a hundred other Romanian cases of the same type, that the issues raised therein reflected a major systemic problem linked in particular to the absence of restitution or compensation in respect of properties which had been nationalised and were subsequently sold by the State to third parties. They took note of the action plan presented by the Romanian authorities on 25 February 2010 and invited them to submit a tentative timetable for adoption of the measures envisaged. 85. In the years following the Second World War the communist regimes in numerous central and eastern European countries conducted massive programmes of nationalisation and expropriation of immovable property, industrial, banking and commercial structures and, with the exception of Poland, agricultural structures. 86. In the early 1990s restitution measures were adopted in many of these countries, whose political and legal situations differed. The detailed arrangements and scope of the measures varied and there were wide differences in the forms of compensation adopted by States. 87. Some States (Azerbaijan, Bosnia and Herzegovina and Georgia) have not enacted any legislation concerning restitution or compensation in respect of properties that were nationalised or confiscated. 88. The legislation in Poland does not establish a general right to restitution or compensation in respect of properties that were confiscated or nationalised. The sole exception concerns the Bug River region and is confined to a right to compensation. In practice, the persons entitled can opt either to have the index-linked value of the abandoned properties deducted from the price of a State-owned property acquired by means of a competitive bidding procedure, or to receive money from the compensation fund. The amount of compensation which claimants may receive is subject to a statutory ceiling of 20% of the current value of the property lost in the Bug River region. 89. The Hungarian legislation on partial compensation for damage caused to citizens' property by the State provides for compensation to be paid in monetary form or in the form of coupons. There is also a statutory cap on compensation. 90. The majority of the countries concerned restrict the right to restitution or compensation to certain categories of properties or claimants. In some countries the legislation lays down time-limits, sometimes very short, for lodging claims. 91. Some countries provide for various forms of restitution and/or compensation by means of so-called “restitution” laws: this is the case in Albania, Bulgaria, Lithuania and “the former Yugoslav Republic of Macedonia”. Others have dealt with the issue of restitution under rehabilitation laws (the Czech Republic, Germany, Moldova, Russia, Slovakia and Ukraine). Finally, the issue is also dealt with under property legislation (Bulgaria, the Czech Republic, Estonia, Germany and Slovenia). 92. In all cases, restitution is not an absolute right and may be subject to numerous conditions and restrictions. The same is true of the right to compensation. 93. Either the former owners or their successors in title (lawful heirs in Albania) may be eligible for restitution or compensation in respect of confiscated or nationalised property. In some countries including the Czech Republic, Estonia, Lithuania, Moldova, Slovakia and Slovenia, the legislation requires the claimant to be a citizen either when the property was confiscated or when the claim for restitution is made, or in some cases even both. In addition, the law in Estonia and Slovakia requires claimants to be permanent residents both when the law entered into force and when the claim for restitution or compensation is made. In those systems where there is a rehabilitation procedure, only persons rehabilitated in accordance with the law may claim restitution of their property. This is the case in the Czech Republic, Germany, Moldova, Russia, Slovakia and Ukraine. In these countries entitlement to restitution or compensation is wholly or partially linked to the rehabilitation of victims of political repression. 94. The legislation in some countries excludes several categories of properties from restitution or compensation. 95. In some cases the legislation excludes land and buildings the character of which has been altered (Germany); other countries exclude property which has lost its original character (Estonia) or property which has disappeared or been destroyed, as well as properties which have passed into private ownership (Moldova, Russia and Ukraine). 96. In addition, under Estonian law, military property, cultural and social assets and property under State protection, as well as buildings used by the State or local administrative authorities, are excluded from restitution. Under the legislation in Moldova plots of land, forests, perennial plantations and property confiscated on grounds unrelated to political repression are also ineligible for restitution. 97. In Russia and Ukraine properties which were nationalised in accordance with the legislation in force at the time do not qualify for restitution or compensation. 98. In Lithuania restitution is possible only in the case of residential property. The Serbian legislation provides only for partial restitution of agricultural land. Finally, in the Czech Republic and Bulgaria the restitution laws specify the properties which are covered. 99. Some legislation imposes temporal restrictions on the lodging of claims for restitution or compensation. This is the case in Albania and Estonia, where former owners were given less than a year in which to lodge a claim, and in the Czech Republic, Slovakia and “the former Yugoslav Republic of Macedonia” (one year from the date of entry into force of the law on rehabilitation). 100. Elsewhere, the legislation restricts restitution or compensation to properties nationalised or confiscated during a certain period. By way of example, the German compensation scheme is limited to properties nationalised after 1949 but compensation is awarded for properties nationalised between 1945 and 1949 in the Soviet-occupied zone. 101. A number of countries have opted to provide compensation in the form of another property equivalent to that which was nationalised or confiscated (Albania, Bulgaria, Germany, Montenegro and “the former Yugoslav Republic of Macedonia”). 102. Where no exchange is possible the legislation allows the person concerned to be provided with a property of a different kind, a sum of money, compensation vouchers (Bulgaria and Hungary), State securities or bonds (Slovenia and “the former Yugoslav Republic of Macedonia”) or shares in a public company (Albania and Bulgaria). 103. The amount of compensation is calculated mainly by reference to the market value of the property at the time of the restitution or compensation decision (Albania, Lithuania, Moldova, Montenegro, Poland and Serbia) or at the time the property was confiscated (“the former Yugoslav Republic of Macedonia”), or as otherwise provided by law. 104. Some countries take account of other considerations in addition to the market price. In Albania, when compensation is provided in the form of shares the amount is equal to the value of the property at the time of the decision or the value of the privatised public property. 105. Other factors may also be taken into consideration in determining the amount of compensation. In Germany, for instance, account is taken of the value of the property before expropriation, which is then multiplied by a coefficient laid down by law. 106. In some countries the legislation sets a cap on compensation (Germany, Russia and Ukraine), or provides for payment in instalments (Moldova). 107. The authorities responsible for determining restitution or compensation claims may be judicial or administrative. The most common arrangements include special restitution and compensation boards (Albania, Bulgaria, Moldova and Montenegro), administrative bodies (Lithuania), the Ministry of Finance or Justice, or even the courts (the Czech Republic). In all the countries surveyed an appeal lies to the administrative or civil courts against the decisions of the administrative bodies.
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train
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001-84067
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ENG
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LTU
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ADMISSIBILITY
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SADAUSKIENE v. LITHUANIA
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Inadmissible
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The applicant, Mrs Krestina Sadauskienė, is a Lithuanian national who was born in 1948 and lives in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 June 1998 the applicant’s 17-year-old son took part in a schoolchildren’s outdoor camp near the Girija lake in the Vilnius region, uniting over 100 pupils and their supervisors. The applicant’s son came with a group of 22 pupils, supervised by three teachers. On 13 June 1998 the police were alerted that the boy had gone missing. On 14 June 1998 the corpse of the applicant’s son was found in the lake. On the same date the police carried out an examination of the place of the incident and questioned several witnesses. An autopsy of the body began the same day and was completed on 18 June 1998. 1.43% of alcohol was found in his blood, but the body carried no signs of violence. The experts referred to the likelihood that the boy had drowned while swimming in the lake. The applicant applied to the prosecutors, claiming that her son may have been murdered, and that the schoolteachers had not performed their duty of supervision. On 1 July 1998 a Vilnius area district prosecutor refused to institute criminal proceedings in respect of the death of the applicant’s son. On 7 July 1998 a higher prosecutor quashed this decision, ordering further investigation in order to confirm or rule out the hypothesis of a violent death. He instructed the prosecution to question all the schoolchildren who had gone to the camp with the applicant’s son and to examine the scene of the incident, the pictures of the deceased taken by the applicant just before the funeral, as well as, her son’s belongings in order to establish the origin of the blood stains noticeable on some of them. From 9 July 1998 to 17 August 1998, the prosecution questioned 14 witnesses, including the applicant, accepted the opinion of a medical expert, repeatedly examined the place of the incident and conducted an inquiry into a possible fight among the campmates. Furthermore, from 16 to 30 July 1998, a biological DNA examination of the belongings of the applicant’s son was performed. The expert found some blood stains on the T-shirt of the victim but, because of the small amount of blood involved, it was not possible to establish its origin. On 17 August 1998 a Vilnius area district prosecutor again took a decision to refuse to institute criminal proceedings in view of the absence of any indication of a violent death. The prosecutor referred to the results of the autopsy and the DNA examination, as well as the submissions of various witnesses. The applicant complained, requesting further details to be assessed. On 25 August 1998 a higher district prosecutor quashed the decision, ordering, inter alia, the questioning of all the participants of the camp, the divers who had found the corpse, and certain other people. In accordance with that order, the prosecution carried out additional investigative measures; in particular, the submissions of 52 witnesses were recorded, experts were questioned, the police and other relevant officials were called upon to conduct an inquiry into certain details of the incident, and further inspections of the scene of the incident was carried out. On 29 January 1999 a Vilnius area district prosecutor refused to institute criminal proceedings in relation to the death of the applicant’s son (Article 104 of the Criminal Code as then in force). Nor did the prosecutor consider that there were any grounds for the criminal prosecution of the schoolteachers or organisers of the camp for the allegedly improper execution of their official duties (Article 288). The applicant was advised that she could claim damages by way of civil proceedings. The applicant and her husband addressed the General Prosecutor’s Office, submitting further details and requesting an additional inquiry. On 25 June 1999 a prosecutor in the Office of the Prosecutor General quashed the decision, ordering additional investigative measures, including the questioning of new witnesses, the examination of the towel of the deceased, an inquiry into the hypothesis that there may have been a fight at the camp, and a request for information about the meteorological conditions on the day of the incident. On 29 July 1999 the applicant reported that she had received an anonymous letter referring to the alleged “murderers” of her son. An inquiry into these newly discovered details was carried out, including the questioning of 10 witnesses. On 7 September 1999 a Vilnius area district prosecutor again refused to institute criminal proceedings on the same grounds as before. The applicant appealed, alleging that the prosecution had not made an adequate investigation into the anonymous letter. On 2 November 1999 a Vilnius regional prosecutor quashed the decision, instituting criminal proceedings into the death of the applicant’s son. Thereafter, the investigation was prolonged a number of times. During a further examination, 46 witnesses were questioned, some of them repeatedly, several confrontations of the witnesses were undertaken, additional information about the camp participants was gathered, the version of a possible fight in the camp was again assessed, writing samples were taken and an expert examination of the anonymous letter carried out, and several experts were heard. On 1 May 2000 the district prosecutor decided to discontinue the criminal proceedings. It was noted, inter alia, that no evidence of a violent crime could be found, despite the questioning of numerous witnesses and experts. The applicant filed a hierarchical complaint, requesting the quashing of the decision of 1 May 2000. On 16 June 2000 the Office of the Prosecutor General refused her request, stating that the decision to discontinue the investigation was lawful and substantiated. The applicant was advised that she could request judicial review of the decision of 1 May 2000. On 27 November 2001 the applicant applied to the Vilnius District Court, asking it to reinstate the time-limit to complain about the decision of 1 May 2000. On 1 March 2002 a judge the Vilnius District Court granted her request, quashed the decision of 1 May 2000 and ordered the Vilnius area district prosecutors to carry out further investigative measures, including the questioning of the applicant and her husband, as well as establishing the identity of certain persons with whom the applicant’s son could have had contact in the camp. The judge also referred to the pictures of the corpse that the applicant had made after the autopsy which allegedly showed signs of violence on the boy’s face, and ordered them to be submitted to an expert. The judge noted that it was not clear from the case file whether these particular pictures had been the subject of an expert examination before. The criminal investigation was renewed. Between 18 and 22 April 2002 a repeat medical expert examination of the pictures was carried out, in order to establish the credibility of the version of a violent death. The experts confirmed that no signs of violence could be identified from the pictures taken before the funeral. It was noted that the pictures taken by the applicant just before the burial exhibited some marks on the face of the boy. Whereas the applicant considered them to be signs of violence, the experts explained that the marks were the result of the fact that the body had stayed in the water. On 22 April 2002 the prosecutor discontinued the investigation because of the lack of evidence of a crime. On 7 May 2002 a Vilnius regional prosecutor quashed the decision, referring, inter alia, to the need to question witnesses and obtain supplementary data about the participants at the camp. The case was sent to the Vilnius city district prosecutors, who again reinstated the investigation on 13 May 2002. The further questioning of witnesses and experts as well as a confrontation were held. On 13 June 2002 the Vilnius city district prosecutor discontinued the investigation in view of the absence of evidence of the crime of murder or the improper execution of official duties. On 19 July 2002 the Vilnius regional prosecutor quashed the decision, ordering, inter alia, the questioning of further witnesses and the characterisation of certain participants at the camp. On 23 July 2002 the investigation was again renewed by the Vilnius city district prosecutors and further investigative actions were carried out, including the questioning of eight witnesses. On 23 October 2002 a Vilnius city district prosecutor adopted a 23-page long decision, discontinuing the criminal investigation in view of the absence of evidence of a crime under the then Articles 104 and 288 of the Criminal Code. It was concluded that the applicant’s son had drowned in the lake from swimming whilst under the influence of alcohol, and that he had been responsible for his own death. The decision was based on the submissions of 46 witnesses, some of whom had been confronted, in order to eliminate contradictions in the evidence, the results of four expert examinations, the expert submissions, as well as other evidence. On 3 December 2002 the Vilnius Region Prosecutors’ Office rejected the applicant’s hierarchical appeal. It was noted that the investigation had been thorough: 73 witnesses had been questioned, some of them many times; the examination of the place of the incident had been carried out three times; two medical examinations and a DNA examination of the blood sample had been completed, but with no result because of the small amount of blood involved; experts were questioned and a handwriting analysis of the anonymous letter had been performed. There was no evidence to indicate that the boy had been the victim of violence, despite the attempts to examine the numerous versions put forward by his parents. All hypotheses had been dutifully verified, inter alia, by questioning the relevant experts and the witnesses, some of whom had been heard several times but had not been able to provide any new information. The applicant applied to a court. On 23 January 2003 the Vilnius City First District Court examined the applicant’s appeal in a written procedure and rejected it. It noted that the main source of objective evidence – the expert examination of the corpse and the pictures. This hypothesis was corroborated by the submissions of various witnesses and other evidence. The court opined that all possible means to obtain evidence had been exhausted. That decision was final. On 25 August 1998 the three schoolteachers who had accompanied the applicant’s son to the camp received a disciplinary reprimand for their failure to ensure the safety of the camp participants. On an unspecified date the applicant brought civil proceedings for damages against the employer of those teachers – a State-run school. She claimed 9,379 Lithuanian litas (“LTL”; approximately 2,718 euros) to cover the funeral expenses. Whereas the applicant’s claims were rejected at first and second instance by, respectively, the Vilnius City Third District on 20 December 2000 and the Vilnius Regional Court on 14 February 2001, the Supreme Court reversed those decisions on 11 June 2001, holding that the school was liable to cover the expenses of the funeral of the applicant’s son. The Supreme Court reduced the amount claimed to LTL 7,500 (approximately EUR 2,174), referring to the fact that the applicant’s son had been largerly responsible for his own death. The applicant did not claim non-pecuniary damages. The Criminal Code applicable at the material time punished murder (Article 104) and the improper execution of official duties (Article 288). The Code of Criminal Procedure (in force from 12 June 1998 to 23 January 2003) provided: Article 5 “Criminal proceedings shall not be instituted or ... shall be discontinued in the following cases: 1) where no crime has occurred...” Article 128 “The prosecutor ... shall receive the applications and reports of a crime ... and shall take a relevant decision within three or, in exceptional circumstances, ten days from the receipt of the application or report. The necessary material shall be obtained and submissions taken, but no investigative actions foreseen in this Code shall be carried out. One of the following decisions shall be taken regarding the application or report: - to institute criminal proceedings; - to refuse to institute criminal proceedings ... . The applicant shall be informed about the decision taken.” Article 131 “Where no grounds for the institution of criminal proceedings are established ... the prosecutor ... or the court shall refuse to open criminal proceedings. ... The person concerned who submitted an application [about the alleged criminal acts], shall be informed about that decision as well as about his/her right to appeal against it. The decision of the prosecutor ... to refuse to institute criminal proceedings can be challenged before the higher prosecutor or a court ... .” Article 244 of the Code stipulated that the actions and decisions of the prosecutor could be challenged before a higher prosecutor or, since 17 April 2002, before a court. Article 244-2 provided for the judicial review of the actions and decisions of the prosecutor, stipulating as follows: “The prosecutor and the complainant may attend the hearing... . The complainant shall be informed about the court’s decision ... . That decision shall be final.”
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train
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001-69311
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ENG
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BGR
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CHAMBER
| 2,005
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CASE OF KIRILOVA AND OTHERS v. BULGARIA
| 3
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Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
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Christos Rozakis
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13. All applicants – or their ancestors – owned real estate which was expropriated during the 1980s or the early 1990s. At the time of the expropriations they were awarded compensation in the form of flats which the authorities undertook to construct and deliver, but which have – with one exception (see paragraph 71 below) – remained unfinished and undelivered until present. The specific circumstances of each case are described below. 14. Mrs Kirilova and her husband owned jointly a house with a yard in the centre of Sofia. 15. By a mayor's order of 29 May 1985 their house was expropriated with a view to the construction of a school and a street. The order, based on section 98(1) of the Territorial and Urban Planning Act of 1973 („Закон за териториалното и селищно устройство“ – “TUPA”)(see paragraphs 73 and 74 below), provided that Mrs Kirilova and her husband were to be compensated with one flat and their son, Mr Kirilov, was to be compensated with another flat. Both flats were to be situated in a building which the municipality intended to construct. The expropriated house was valued at 29,311.59 old Bulgarian levs (BGL). 16. By a supplementary order of 28 July 1986, based on section 100 of TUPA (see paragraph 75 below), the mayor indicated the exact flats with which Mrs Kirilova, her husband, and Mr Kirilov were to be compensated, specifying the building in which they would be located and their precise surface. 17. The expropriated house was pulled down and the construction of the school started. Mrs Kirilova and her husband, and their two children, Mr Kirilov and Ms Schneider, were settled in a municipal flat in the outskirts of Sofia, pending the construction of the flat offered in compensation. In 1993 Mrs Kirilova's husband died. 18. The construction of the building in which the flats offered in compensation would be located did not start as planned, apparently because of financial difficulties experienced by the municipality. 19. On 22 July 1997 Mrs Kirilova, Mr Kirilov and Ms Schneider lodged complaints with the municipality, the regional governor, the Parliament, the Ministry of Finance and the Ministry of Construction and Urban Development, stating that the flats allocated to them as compensation had not been constructed, apparently due to lack of funds. They stated that they had been waiting in vain, despite their repeated complaints. They also alleged that since 1986 the municipality had built and sold flats to other persons, but had never found funds to discharge its obligation to them. They requested to be given other flats as compensation. Their request was placed on a waiting list. 20. By letters of 5 December 1997 and 14 April 1998 the municipality informed Mrs Kirilova, Mr Kirilov and Ms Schneider that the construction of the flats was expected to start in 1998 and that additional funds were needed. 21. On 2 January 2001 Mrs Kirilova died. Mr Kirilov and Ms Schneider are her only heirs. 22. In April 2004 the municipality served on Mr Kirilov and Ms Schneider updated orders under section 100 of TUPA, which had been made on 19 November 2003 and 12 February 2004 respectively. The orders provided that the two applicants were to be offered other flats, not the originally intended ones, due to a modification of the plan of the building under construction. 23. At the time of the latest information from the two applicants (19 April 2004), the construction of the building in which their flats were to be situated had advanced, but it was still unfinished. 24. Mr Ilchev owned part of a house with a yard in Sofia, where he lived. 25. By a mayor's order of 16 March 1988 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Mr Ilchev was to be compensated with a threeroom flat in a building which the municipality intended to construct. The house was valued at BGL 8,484.30. 26. Shortly thereafter the house was occupied and Mr Ilchev was settled in a small municipal flat in the outskirts of the city pending the construction of the flat offered in compensation. 27. In July 1989 the expropriated house was pulled down and a subway station was built on the site. 28. By a supplementary order of 8 September 1989, based on section 100 of TUPA, the mayor indicated the exact flat with which Mr Ilchev was to be compensated, specifying the exact building in which it would be located and its precise surface. 29. The construction of this building never started, apparently because of financial difficulties experienced by the municipality and also because its construction would interfere with the ongoing process of restitution of certain plots of land to their former owners. 30. Mr Ilchev made numerous complaints to the municipal authorities, to no avail. By a letter of 19 June 1998 the deputymayor advised him that the construction of the building in which the flat offered in compensation would be situated could not start because of changes in the zoning plan. After a new plan was drawn up, a new building designed, and financing secured for its construction, Mr Ilchev would be invited to choose another flat. 31. On 21 December 2000 Mr Ilchev requested from the municipality to be allotted another flat, to no avail. 32. Meanwhile, on 9 February 1996, Mr Ilchev commenced proceedings against the municipality under the State Responsibility for Damage Act (see paragraph 80 below). He complained that the municipality had failed to deliver the flat offered in compensation and sought BGL 3,000,000 as compensation for the pecuniary and nonpecuniary damage he had suffered. After being invited by the court to specify and itemise his claims, on 11 March 1996 Mr Ilchev stated that he sought BGL 1,000,000 as compensation for the pecuniary damage he had sustained on account of the delay in the delivery of the flat, and BGL 2,000,000 as compensation for the non-pecuniary damage, which consisted in insecurity and the impossibility to use and dispose of his property. 33. In a judgment of 23 July 1999 the Sofia City Court partially allowed Mr Ilchev's action, awarding him 500 new Bulgarian levs (BGN) in compensation for nonpecuniary damage and BGN 536.45 in compensation for pecuniary damage. It held that the municipality's failure to provide Mr Ilchev with a flat was an omission contrary to section 1 of the State Responsibility for Damage Act. 34. Mr Ilchev appealed, claiming that the amount of compensation was too low. The municipality of Sofia also appealed. The Sofia Court of Appeals reversed the Sofia City Court's judgment, holding that the applicant had failed to request the cancelling of the expropriation and had thus been the one at fault for the obtaining situation. 35. Mr Ilchev appealed on points of law to the Supreme Court of Cassation. In a judgment of 16 October 2001 that court quashed the Sofia Court of Appeals' judgment and remitted the case. It held, inter alia, that Mr Ilchev had suffered damages because of the municipality's failure to build and deliver him a flat. The restitution of the expropriated property was impossible because the house had been pulled down for the construction of a subway station. Since the omission of the municipality had been unlawful, Mr Ilchev was entitled to claim compensation for the delay. The court further held that the authorities' obligation to compensate the damage suffered by Mr Ilchev on account of the delay, although stemming from their failure to provide him with a flat, was different from that underlying obligation. 36. On remittal, the Sofia Court of Appeals, in a judgment of 2 October 2002, upheld the Sofia City Court's judgment, but awarded to Mr Ilchev an additional BGN 280.27 in compensation for pecuniary damage, together with interest as from 9 February 1996, when the action had been commenced (see paragraph 32 above), until settlement. It held, inter alia, that the municipality's failure to build and deliver the flat allotted to Mr Ilchev in compensation for his house had been an illegal omission within the meaning of section 1 of the State Responsibility for Damage Act and that the damage suffered by the applicant was a direct and proximate result of this omission. The court also held that the applicant's allegation that the amount of the compensation was too low was partially wellfounded. The applicant, who was an acting officer in the army, had been living on army premises during the weekdays and could have rented the prospective flat out. The amount which he would have received in rent between 1988, when the flat had been due, and 1996, when the action had been commenced, was BGN 280.27. 37. The municipality appealed to the Supreme Court of Cassation, arguing that the action was inadmissible and unfounded. The Supreme Court of Cassation declared the appeal inadmissible by a decision of 13 April 2004. It held that the amount in controversy was below BGN 5,000 and that the Sofia Court of Appeals' judgment was therefore not subject to appeal on points of law. The municipality did not appeal against this decision and the Sofia Court of Appeals' judgment of 2 October 2002 entered into force. 38. Following the entry into force of the Sofia Court of Appeals' judgment, on 26 October 2004 Mr Ilchev was issued a writ of execution against the municipality of Sofia for the amount of BGN 1,315.72 in respect of pecuniary and nonpecuniary damage and BGN 0.70 in respect of costs and expenses for the proceedings, plus interest at the statutory rate as from 9 February 1996, when the action had been commenced (see paragraph 32 above), until settlement. 39. On 29 November 2004 Mr Ilchev presented the writ to the financial department of the municipality and requested to be paid the awarded amount. On 9 January 2005, in response to an inquiry by Mr Ilchev, the municipality informed him that no amounts had been earmarked in its budget for the payment of the amount due to him. On the date of the latest information from the parties (19 January 2005), the amount was still unpaid. 40. Ms Metodieva owned, together with her sister, one half of a house with a yard in the town of Nikopol, which she rented out. 41. By a mayor's order of 16 May 1990 the house was expropriated for the creation of a municipal green space. The order, based on section 98(1) of TUPA, provided that Ms Metodieva was to be compensated with a oneroom flat in a building which the municipality intended to construct. Ms Metodieva's sister was compensated in cash. The applicant's share of the house was valued at BGL 567 (that amount represented ½ of the value of Ms Metodieva's and her sister's share of the house, which amounted to BGL 1,133.65). 42. The construction of the building never started because of financial difficulties experienced by the municipality, and it was eventually altogether left out of the municipal construction program. 43. Meanwhile Ms Metodieva's house was pulled down. Instead of a green space, in 1993 an office building for the State Savings Bank was constructed on the plot. 44. Ms Metodieva made an attempt to obtain the cancelling of the expropriation, relying on a 1992 restitution law, but her attempt failed as that law only concerned expropriations carried out before 21 April 1990. 45. In December 1997 Ms Metodieva asked the mayor to issue a supplementary order under section 100 of TUPA and indicate the exact flat with which she was to be compensated. In January 1998 the mayor replied that such an order could not be issued as the construction of the building in which the flat was to be located had not started. 46. In May 1998 Ms Metodieva requested the mayor to set a date when she could select another flat. As the mayor did not reply, she filed an appeal against his implied refusal with the Pleven Regional Court. In a judgment of 16 October 1998 the Pleven Regional Court quashed the refusal and referred the matter back to the mayor with instructions to issue an order under section 100 of TUPA, in which to specify the exact flat with which the applicant was to be compensated. Apparently the mayor did not issue such an order because there were no flats available. 47. In the meantime, on 4 August 1997, the mayor explained that he could not offer Ms Metodieva a flat as there were no vacant ones with parameters equivalent to those set forth in the expropriation order. 48. Ms Metodieva also filed complaints with the regional governor and the Ministry of Finance, to no avail. 49. On 6 July 1998, pursuant to a request by Ms Metodieva, a municipal commission carried out a new valuation of the expropriated house, setting Ms Metodieva's share at BGL 792,000. 50. Ms Metodieva appealed against this valuation and on 13 January 1999 it was quashed by the Nikopol District Court on the ground, inter alia, that Ms Metodieva had not been notified of the procedure. The matter was referred back to the municipality. 51. On the request of Ms Metodieva on 29 March 2000 the Nikopol District Court interpreted its judgment, specifying, inter alia, that the valuation of the property should be made in accordance with section 102 of the Property Act. 52. On 22 June 2000 a municipal commission reassessed the value of the expropriated house, basing its assessment on its market price at the time of the expropriation. The value thus obtained was BGL 1,133.65 for Ms Metodieva's and her sister's half of the house. 53. On appeal by Ms Metodieva the Nikopol District Court, in a judgment of 1 March 2001, quashed the valuation, holding, inter alia, that the new valuation should be based on the market prices at the time it is being carried out. 54. Both the municipality and Ms Metodieva appealed, and in a judgment of 3 June 2002 the Supreme Administrative Court quashed the lower court's judgment, expressly holding, inter alia, that the new valuation should be made on the basis of the market price at the time of the expropriation, in accordance with section 102 of the Property Act. The court remitted the case to the mayor. 55. By an order of 23 August 2002 the mayor valued Ms Metodieva's and her sister's half of the house at BGN 1.13, expressly specifying that the valuation had been made on the basis of the market prices at the time of the expropriation. 56. On appeal by Ms Metodieva, the Pleven Regional Court, in a judgment of 13 December 2002, declared the order void and referred the case back to the mayor. It held, inter alia, that both the house and the flat offered in compensation should be valued on the basis of the market prices at the time of the expropriation. 57. On appeal of the mayor, the Supreme Administrative Court, in a judgment of 21 May 2003, quashed the lower court's judgment, holding that the mayor's order had not been void. If there had been irregularities with the valuation, the lower court should have revalued the house instead of referring the matter back to the mayor. The court remitted the case to the Pleven Regional Court with instructions that a new valuation of the house be carried out. 58. In a judgment of 19 April 2004 the Pleven Regional Court valued Ms Metodieva's and her sister's share of the expropriated house at BGN 3,225.29. It held, inter alia, that a valuation based on the market prices at the time of the expropriation, which had taken place a long time before, would impinge on the adequacy of the compensation. In the court's view, the valuation had to be based on the market prices at the time of the delivery of its judgment. According to the expert's report drawn up during the proceedings, the value thus obtained was BGN 3,225.29. 59. The mayor appealed, arguing, inter alia, that the valuation of the expropriated house and, respectively, of the flat offered in compensation, should be done on the basis of the market prices at the time of the expropriation. 60. In a final judgment of 27 October 2004 the Supreme Administrative Court quashed the Pleven Regional Court's judgment and held that the value of Ms Metodieva's and her sister's half of the house was BGN 2,524.50. The court reasoned, inter alia, that a valuation under section 102 of the Property Act had to be based, as a rule, on the market prices at the time of the expropriation. However, no evidence about these prices had been adduced by the municipality. The only data available was that in the expert's report drawn up during the proceedings before the Pleven Regional Court (see paragraph 58 above), which indicated that the value of the property at the time of the mayor's order – 23 August 2002 (see paragraph 55 above) – was BGN 2,524.50. The court instructed the mayor that this new valuation only replaced the original valuation made at the time of the expropriation, but did not change the manner of compensation. Therefore, the mayor had to issue an order under section 100 of TUPA and specify the exact flat with which Ms Metodieva was to be compensated, thus completing the expropriation procedure. However, it was open to Ms Metodieva to request to be compensated in cash instead. 61. It does not seem that Ms Metodieva has since requested that the manner of compensation be changed to cash. 62. Ms ShoilevaStambolova's and Mr Shoilev's father owned half of a house with a yard in Sofia, where he and the two of them lived. 63. By a mayor's order of 8 February 1983 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Ms ShoilevaStambolova's and Mr Shoilev's father was to be compensated with a flat and that Ms ShoilevaStambolova was to be compensated with another flat. Both flats were to be situated in a building which the municipality intended to construct. The house was valued at BGL 39,451. The applicants' father appealed and the Sofia City Court increased the valuation with BGL 947, thus making it BGL 40,398. Thus, the applicants' father's share of the house was valued at BGL 20,199. 64. In 1984 the house was occupied and pulled down. Ms ShoilevaStambolova's and Mr Shoilev's father was offered to be settled in a municipal flat in the outskirts of the city, pending the construction of the flat offered in compensation. Considering, however, that the flat was not suitable for his needs, he chose to rent another flat and left the municipal one uninhabited. 65. By a supplementary order of 7 March 1984, based on section 100 of TUPA, the mayor indicated the exact flats with which the two applicants' father and Ms ShoilevaStambolova were to be compensated, specifying the buildings in which they would be located and their precise surface. 66. In 1985 Ms ShoilevaStambolova's flat was finished. BGL 100 of the valuation of the her father's house was applied towards the value of that flat. The remainder (BGL 19,223) was paid by Ms ShoilevaStambolova and she was allowed to take possession of it. However, the applicants' father's flat was not constructed, apparently because the design for the building in which it was to be located was changed. 67. In 1989 the applicants' father requested to be allotted another flat. By a mayor's order of 27 March 1989 he was allotted a new flat in lieu of the one originally intended as compensation. This order, like the original one, specified the exact location and surface of the new flat. The construction of the building in which the flat thus allotted was to be located started in 1989, but was halted soon after, because of lack of funds. 68. On 25 February 1998 Ms ShoilevaStambolova's and Mr Shoilev's father died. The two are his only heirs. 69. In 2001 Ms ShoilevaStambolova and Mr Shoilev wrote to the mayor. They asked whether there were any plans for the completion of the building in which the flat allotted in compensation would be located. In the alternative, they asked whether they could receive another equivalent flat or cash and, if so, what would be the amount of such monetary compensation. By a letter of 9 May 2001 the mayor informed them that there were no plans to finish the building. Their application for recompensation was sixth on the waiting list but at the time there were no flats available. If they opted for cash compensation, the amount which they would be entitled to would be BGN 20.20. 70. On 11 July 2003 Ms ShoilevaStambolova and Mr Shoilev were informed that the plan of the building in which their future flat would be situated had been changed and were invited to choose a new flat. They did so on 6 August 2003, which was confirmed by a revised order under section 100 of TUPA of 9 September 2003. The new flat was almost similar in size and position as the previous one. 71. In early 2004 the construction of the building in which the flat was to be situated was finalised and on 26 May 2004 the municipality delivered the flat to Ms ShoilevaStambolova and Mr Shoilev. 72. At the relevant time expropriations of residential units for public use were regulated by TUPA. 73. Expropriations were effected by order of the mayor, which had to designate the property to be expropriated and its valuation, and specify the manner (property or cash) and amount of compensation due to the dispossessed owner (sections 95(1), 98(1)(1) and 98(1)(2) of TUPA). 74. If the owner was to be compensated with a flat which had not yet been constructed, the order had to specify the type and the general features of such a flat (section 98(1)(4) of TUPA). 75. A supplementary order had to indicate the exact premises offered in compensation and their valuation (section 100 of TUPA). By section 103(1) of TUPA, that supplementary order had the effect of vesting title in the flat offered in compensation, even though it was still nonexistent. 76. The Supreme Court has held that both the initial order providing for compensation and the supplementary order create vested rights for the expropriated owners and may be modified only in limited circumstances (решение № 301 от 29 април 1980 г. по гр.д. № 62/1980 г. на ВС, III г.о.; решение № 713 от 7 септември 1982 г. по гр.д. № 627/1982 г. на ВС, III г.о.). One such case would be if the expropriated owner submitted, prior to receiving the flat, a notarised request for a modification of the order to provide for compensation in cash, for compensation with a smaller flat, or compensation with a flat situated elsewhere (section 103(5) of TUPA). 77. Owners who had not received the flats due within a certain period of time (initially three years and later one year) – either because of changes in the municipal construction program (the respective building being left out of it) or because the building was earmarked for other purposes – could request cancelling of the expropriation or a fresh valuation of the expropriated property (section 109(1) and (2) of TUPA, superseded in 1990 by section 102(7) and (8) of the Property Act). This could be done either before or after the supplementary order. However, once the supplementary order was issued, cancelling of the expropriation was only possible if the land had not been cleared for groundwork or the expropriated building had not yet been demolished. In the latter case the only remaining option would be a fresh valuation (section 109(4) of TUPA, superseded in 1990 by section 102(9) of the Property Act). 78. The valuation of the expropriated property had to be based on the market price of the property at the time of the expropriation (section 102(1) of the Property Act). The fresh valuation is subject to judicial review (section 138(2)(2) of TUPA and решение № 2181 от 3 май 1999 г. по адм. д. № 4433/1998 г. на ВАС, ІІ о.). 79. In 1996 and 1998 all these provisions were superseded by rules giving enhanced protection to expropriated owners. However, the new legislation provides that the above provisions, although repealed, continue to govern pending expropriation proceedings which were commenced under TUPA or section 102 of the Property Act and in which the State has taken possession of the expropriated property before 30 October 1998 (paragraph 3(1) of the Act for Amending TUPA of February 2000 and paragraph 9(1) of the transitional and concluding provisions of the Territory Planning Act of 2001). 80. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which entered into force on 1 January 1989, provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by civil servants, committed in the course of or in connection with the performance of their duties. The State's liability is strict, i.e. no fault is required on the part of the civil servant in the commission of the unlawful acts or omissions (section 4 in fine). Section 7 of the Act provides that the action in responsibility must be brought against the authority employing the civil servant concerned. Section 4 of the Act provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission of the civil servant. Section 8(2) of the Act provides that if another statute provides for a special manner of indemnification, the Act does not apply. 81. By paragraph 2 of Article 399 of the Code of Civil Procedure, a person who has an enforceable pecuniary claim (e.g. a judgment debt) against the State or a state body receives payment out of funds earmarked for that purpose under the institution's budget. 82. The writ of execution evidencing the claim must be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative body should undertake the necessary steps to ensure that funds become available under the budget for the following year. 83. Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code expressly prohibited enforcement proceedings against state institutions. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended. 84. According to data published by the Bulgarian National Bank, the average exchange rate of the United States dollar in February 1991 (the first month for which such data is available), was BGL 24.32. In July 1998, when the municipality carried out a fresh valuation of Ms Metodieva's house (see paragraph 49 above), the average rate was BGL 1,799.15. In June 2000, when the municipality again reassessed the value of the house (see paragraph 52 above), the rate was BGN 2.06. In August 2002, when the third valuation was carried out (see paragraph 55 above), the average rate was BGN 2.00. In February 2005 (the latest month for which such data is available), the average rate was BGN 1.50.
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train
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001-58758
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ENG
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FRA
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CHAMBER
| 2,000
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CASE OF CALOC v. FRANCE
| 1
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No violation of Art. 3;Preliminary objection rejected (incompatibility ratione materiae);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
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9. At 2 p.m. on 29 September 1988 the applicant reported to the police station (gendarmerie) at Le Lorrain, in Martinique, to be questioned in connection with a complaint lodged by a contractor, Mr Vildeuil, the applicant's former employer, who suspected him of having sabotaged his two bulldozers. 10. At 2.30 p.m. the applicant was taken into police custody. According to the report drawn up by Mr Bavarin, the police officer in charge of the investigation, the applicant ran off after learning that his wife had told the police officers that he sometimes got up during the night. He was caught fifty metres further on and was taken, struggling, back to the police station. There he offered further resistance, kicking out. He was restrained with the assistance of the brigade commander, Mr Gaillard. 11. At 5 p.m. the applicant was examined by Dr Thomas, who, after taking his blood pressure and carrying out a cardiovascular examination and an auscultation of the lungs, found nothing amiss. 12. The applicant was questioned again from 7 p.m. to 11 p.m. and denied having committed the offence. However, he did not dispute that he had run away from the police station and had resisted the police officers who were attempting to arrest him. According to the record of the interview, which took place at 10 p.m., the applicant stated: “At 2.30 p.m., when I came to the police station following your request, you told me that you suspected me of having sabotaged Vildeuil's bulldozers ... You said that my wife had told you that I sometimes got up during the night, and that is when I ran off. You managed to catch me fifty metres further on; I struggled to break free, but I had no intention of getting away. When you took me to the station, I again put up a struggle because I didn't want to go to prison. It is true that I tried to get away, but if I had managed to escape, I would have come back. I stamped my feet when you held me on the premises, and if I kicked any of you, it was unintentionally. ... When I tried to run away, it was to see my wife and get her to come to the police station so that she could tell you in front of me whether I went out at night. ...” 13. At 11.30 p.m., because there was substantial, consistent evidence to justify charging him with forceful resistance to a public officer, the applicant was placed in a security cell, where he remained until 8 o'clock the following morning (30 September). When questioned again by the senior police officer (officier de police judiciaire), he admitted having caused the damage and signed a statement to that effect at 10.30 a.m. He was allowed a rest from 10.30 a.m. to 11.30 a.m. At 11.30 a.m. he was questioned once again and confirmed his previous confessions, adding that he was sorry that he had “jostled” the police officers while attempting to escape. 14. At 1 p.m., after signing the record of his detention in police custody and his last statement, which, like the earlier ones, had been read aloud to him because he had stated that he could not read or write French very well, the applicant was released. 15. On 1 October 1988, the day after being released from custody, the applicant was examined by Dr Kéclard. The medical certificate drawn up by the doctor stated: “[The applicant] has heavy bruising on the right anterior deltoid, with impaired mobility of the right shoulder. There are also signs that both wrists have been bound, causing pain and reduced mobility. Lastly, he complains of lumbar pain and problems with movement; the pain is accompanied by temporary scoliosis due to muscular contraction. His condition requires him to stop work for eight days and to receive treatment.” The doctor prescribed eight days' sick-leave. On 9 October 1988 he extended the sick-leave until 20 October 1988. 16. On 18 November 1988 the applicant lodged a complaint against the Le Lorrain police with the Fort-de-France public prosecutor, alleging assault occasioning actual bodily harm and relying on the certificate issued on 1 October 1988. 17. In the complaint the applicant stated: “On Thursday 29 September [1988] ... I was received [at the police station] at 2.15 p.m., and before I had even sat down, the police officer ... started reading out a list of questions. He told me that I had put sand in Mr Vildeuil's tractors, and I said that that was not true ... He then said that he would go and get my wife. I said no, because, knowing my wife, I was sure that she would have refused to follow him out of fear and she would have been worried. The police officer followed me menacingly and I ran towards the car. He then shoved and punched me, saying that I had been trying to leave and would not have come back – even though I had turned up at the station as requested. I told him to let go of me and we went back to the station. He continued to grip me more and more firmly while pushing me about, and flung me on to the front doorstep with a judo throw. The officer called two of his colleagues, who arrived straight away. They were wearing shorts but were bare-chested. One of them sat astride me and twisted my arm behind my back, another put his foot on my head, and the third one, after fetching a bag of handcuffs and passing it to the one who was sitting on my back, held my feet. They handcuffed me, put the chain around my neck and fastened it to my other arm. I was lying on the ground, practically strangled by the chain. ... The officers then sent me to the cell, where I remained until the next day without anything to eat ... They let me out the next day, 30 September, and handcuffed me to a chair leg. The police officer questioned me again and asked me ... if I had put sand in a tractor. I said no ... The officer called me a liar and a thief ... I didn't argue and I said that I [had] rights. He made fun of me and made me sign a piece of paper, without even reading out what he had written on it. I signed the document without knowing what it was about, not only because of my reading difficulties but also because of his threatening tone, everything I had just gone through and the worsening pain in my shoulder...” 18. On 30 November 1988, in view of the substance of the complaint, the public prosecutor's office initiated a police investigation. 19. On 12 December 1988 a further complaint was lodged against the applicant by a Mr Remir, who likewise suspected him of damaging machinery, and a police investigation was started. 20. On 23 February 1989 at 8.30 a.m. the applicant was taken into police custody in connection with the investigation; he remained in custody until 8 o'clock the following morning. He was questioned by Mr Munier, of the Le Lorrain police (see paragraph 65 below), and admitted the offence. 21. Between 4 p.m. and 6 p.m. the applicant was questioned about the circumstances in which he had been held in police custody on 29 and 30 September 1988. During the interview the applicant stated: “On 29 September 1988 I reported to the Le Lorrain police station, as I had been asked to do ... I made to leave the building to find my wife. I did so rather quickly ... The police officer caught up with me in the street fifty metres away from the police station ... He held me and I grabbed his arm so that I would not have to follow him to the station. He dragged me to the police station courtyard and as he said he was going to lock me up, I tried to escape. I struggled because he was holding on to me. Two other officers, not in uniform, came to help him get me inside the building. They came because I was gesticulating wildly ... The three of them then restrained me, handcuffed me and put me in the cell. Five or ten minutes later, when I had calmed down, they took the handcuffs off. ... At one point [one of the police officers] took me out and handcuffed one of my hands to a chair. When he questioned me, I admitted having sabotaged Vildeuil's bulldozer by putting sand in the engine. It is true I confirm that I committed that offence ... I did not write a letter to the public prosecutor. Since my arm hurt as a result of the struggle with the police officers, I went [to see a doctor] ... who told me to see a lawyer. I accordingly went to see Mr Manville [who wrote a letter] ... I knew when I signed the letter that it was to lodge a complaint against the police officers, but I did not really understand what was written in the letter; I understood only part of it. I maintain that the police officers did all the things mentioned in the letter, but they did them only because I was putting up resistance and struggling as I did not want to stay at the police station: I wanted to go back and see my wife. When I signed the letter I understood what it meant. I lodged a complaint against the police officers because I was worked up and annoyed with them and I like being free and not locked up. I now regret what I did because I know I was wrong.” 22. On 27 February 1989 police officers from a different force (the La Trinité gendarmerie) were instructed by the public prosecutor's office to obtain information about the complaint lodged by the applicant on 18 November 1988. On 28 February 1989, from 9.20 a.m. to 10 a.m., officers from the La Trinité police interviewed Dr Kéclard at his surgery as a witness. During that interview Dr Kéclard stated: “... On the morning of 1 October I did indeed examine Adrien Caloc. He presented with cervical and lumbar pains and showed signs of bruising. He informed me that he had been beaten by the Le Lorrain police. The patient did not indicate the date of the events, but my findings suggested that they could have taken place the previous day or the day before that. At his request I issued a detailed medical certificate ... On the same day I ordered an X-ray of his cervical vertebrae, lumbar vertebrae and right shoulder. On 3 October 1988 the patient brought back the X-rays ... The examination did not reveal any lesions to the bones or joints. I saw Caloc again on 12 October 1988 at his request; as his right shoulder was still causing him pain, I prescribed additional medical treatment. On 29 October 1988, since the medical treatment had not alleviated the pain, I referred him to the physiotherapist. I should add that as on 29 October 1988 Mr Caloc complained of his left shoulder, I ordered an X-ray of that shoulder; the results did not indicate any lesions to the bones or joints. I prescribed treatment for the left shoulder only. My client followed the course of treatment and in fact the physiotherapist informed me that the treatment had had a beneficial effect. I have not seen Mr Caloc since 29 October 1988. When I examined Mr Caloc on 1 October 1988, he did not mention any pain in his left shoulder. It was not until 29 October 1988 that he complained of pain in that region, without alluding to what had caused the pain. When I examined my patient's left shoulder, I did not observe any loss of mobility or any deformation, but because he complained of pain, I ordered the X-ray and subsequently the physiotherapy.” 23. The applicant was likewise interviewed by officers from the investigation unit of the La Trinité force and held in police custody from 3.30 p.m. on 28 February 1989 until 11 a.m. on 1 March 1989. It appears from the record of the interview that he was taken into custody on the instructions of the public prosecutor for the purposes of an investigation into the prima facie offence of bringing false accusations against the police officers. 24. During the questioning the applicant stated: “After being summoned by you, I came to see you of my own accord. I acknowledge that I have taken note of the statement I made to the Le Lorrain police on 23 February 1989 [in connection with the second set of proceedings brought against the applicant] ... I did not agree with the statement ... and, not wishing to annoy the policemen, I signed the statement, but it was not my true signature. I should like to give an explanation of the events which led me to lodge a complaint with the public prosecutor against the Le Lorrain police officers. ... As I didn't want the officers to go to my house, I decided to leave the police station ... The police officer ... caught up with me on the road and told me to return to the police station. I followed the police officer, after putting up some resistance. Once we were in the police station courtyard, the officer caused me to fall to the ground so he could get me into the building. At that moment, two other officers came to his assistance. I wish to state that I was hit by the officers for no reason. ... While I was in custody ... I did receive a visit from a gentleman who was wearing ordinary clothes. He took my blood pressure and asked if everything was all right. I replied yes, but I didn't know that he was a doctor. I had not asked for a medical examination. If I had known he was a doctor, I would have told him that I had been beaten by the police officers. ...” 25. On the following day (1 March 1989) the applicant was again interviewed. The record of the interview includes the following passage: “Question: Were you subjected to any violence by the police officers after the man came to take your blood pressure? Reply: All the acts of violence I have reported were carried out before the man visited me. I was not beaten by the police officers after that and was not subjected to any other ill-treatment. Question: Were the acts of violence you mention carried out while you were being arrested or afterwards? Reply: All the blows were inflicted while the officers were restraining me ...” 26. After being released from custody, the applicant was interviewed by the Fort-de-France public prosecutor, to whom he repeated his statements. 27. On 1 March 1989, likewise, Dr Thomas, who had examined the applicant while he was in police custody, was interviewed by officers from the La Trinité police investigation unit. During the interview the doctor stated: “It is correct that on 29 September 1988, in the afternoon ..., at the request of the Le Lorrain police, I examined [the applicant] ... According to the police officers, this person was very aggressive. I must stress that I was acting at the instance of the police. I arrived at the police station in ordinary clothes, without my white coat, carrying my bag. When I arrived, the police officers greeted me, saying 'Good afternoon, Dr Thomas' as they presented to me the person I was to examine, telling him that I was a doctor. He could not have failed to realise that I was a doctor. I cannot remember whether the medical examination took place in front of the police officers. The patient appeared calm. I questioned him in creole, I think, asking if he was in any pain. He replied that he had nothing to report. I carried out a thorough medical examination of the patient: blood pressure, cardiovascular examination, auscultation of the lungs and a physical examination. I did not notice any marks – no signs of any blows, no haematomas nor anything else – during the examination. I cannot remember whether the patient called me 'Doctor'. I can state categorically that during the examination I did not observe any suspicious marks on the patient's body and the patient did not report anything to me. ...” 28. Also on 1 March 1989 it was decided that no further action should be taken on the applicant's complaint, on the ground that the information brought to the knowledge of the public prosecutor's office did not, as it stood, warrant the institution of criminal proceedings. 29. On 3 March 1989 the applicant lodged a further complaint with the senior investigating judge, alleging assault occasioning actual bodily harm and applying this time to join the proceedings as a civil party. The complaint referred by name to police officers Bavarin, Munier and Marchal. 30. In his complaint the applicant stated: “On 29 September 1988 I was summoned to the Le Lorrain police station ... Since I had never sabotaged Vildeuil's bulldozers, let alone the one belonging to Mr Remir [who on 12 December 1988 had likewise lodged a complaint accusing the applicant of sabotage] ... I denied the charge to begin with. But after being subjected to serious violence, which was confirmed medically by Dr Kéclard, I admitted the facts even though they were untrue. The first policeman who questioned me told me, when I denied the charge, that my wife had already admitted that I was the one responsible for sabotaging ... Vildeuil's vehicle. I therefore told the police officer that I was prepared to go and ask my wife for an explanation. That was when the officer prevented me from leaving and started hitting me. I protested against his unlawful violence, and it was then that two other police officers – the commanding officer and another officer – chained me up, as I said before, hit me and put me in the security cell. I was under duress, and because my shoulder and the small of my back were hurting, I was constrained to admit the offence ... I wish to draw your attention [to the fact] that the doctor who came to see me at the instance of the police never told me he was a doctor; he did not examine me and just took my blood pressure with an apparatus. ...” 31. On 15 March 1989, having regard to the applicant's complaint against the police officers and pursuant to Article 687 of the Code of Criminal Procedure, the Fort-de-France public prosecutor applied to the Criminal Division of the Court of Cassation to designate the court to be responsible for the investigation or trial of the case. 32. On 14 April 1989 the applicant's lawyer filed further pleadings with the Court of Cassation. 33. In a judgment of 31 May 1989 the Court of Cassation dismissed the application, holding that as matters stood it was unnecessary to designate a court because, as the amount of sick-leave on grounds of total unfitness for work did not exceed eight days, the facts, assuming them to be made out, amounted to a minor offence (contravention) rather than a more serious one (délit). 34. On 15 June 1989 the applicant again lodged a civil-party application against the named police officers, alleging assault occasioning actual bodily harm, and on the same day he paid into court the sum of 5,000 French francs, set by the senior investigating judge. 35. On 13 September 1989 the public prosecutor's office applied for a judicial investigation in respect of the three police officers named in the applicant's complaint, and for an expert medical opinion to determine how long the applicant had been totally unfit for work. 36. On 15 September 1989 the investigating judge appointed a medical expert, Dr Cayol, to determine how long the applicant had been unfit for work. 37. In his report dated 29 September 1989 the medical expert concluded as follows: “Having familiarised myself with Dr Kéclard's medical certificate and taken into account the information available from the questioning and the [medical] examination of 29 September [1988], I can accept that on 1 October 1988 [the applicant] presented a bruise on the right shoulder (after having fallen from an upright position) and pain when using his wrists and the lumbar region, problems which caused: (a) total physical incapacity for three days, (b) temporary total unfitness for work for nineteen days. At present [the applicant] is, medically speaking, physically fit to carry on his usual activities without any changes.” 38. In submissions dated 5 January 1990 the public prosecutor sought to have the applicant's application to join the proceedings as a civil party declared inadmissible, on the ground that even if the facts of which the applicant had complained were established, they could only amount to the minor offence of assault occasioning actual bodily harm and not to a more serious offence, and therefore could not be the subject of a civil-party application lodged under Article 85 of the Code of Criminal Procedure. Those submissions were accepted by the investigating judge, who declared the application inadmissible in an order of 10 January 1990. 39. On an appeal by the applicant, the Indictment Division of the Fort-de-France Court of Appeal upheld the investigating judge's order on 12 March 1990. On 13 March 1990 the applicant appealed on points of law and on 1 October 1990 he filed his full pleadings. 40. In a judgment of 22 January 1991, served on the applicant on 12 March 1991, the Criminal Division of the Court of Cassation quashed the judgment and remitted the case to the Indictment Division of the Basse-Terre Court of Appeal in Guadeloupe, for the following reasons: “In holding as they did without providing a more adequate explanation, although it was also apparent from the expert medical opinion that the alleged acts of violence had caused the appellant to be unfit to resume work for nineteen days and although the appellant had maintained in his complaint that he had been chained up, the judges did not provide sufficient justification for their decision. In merely ... upholding the impugned order, which declared inadmissible the complainant's application to join the proceedings as a civil party ..., the Indictment Division disregarded the import and scope of the principle [that civil actions and criminal proceedings are independent of each other].” 41. On 2 April 1991 the applicant filed his pleadings with the Indictment Division of the Basse-Terre Court of Appeal. 42. In a judgment of 16 May 1991 the Indictment Division delegated to its president the power to make directions for any further inquiries into the facts. 43. On 12 August 1991 the President of the Indictment Division directed that the court should inspect the scene of the events, and the visit was scheduled for 2 September 1991. Evidence was taken from the applicant on the same day. He stated: “During the night I spent at the police station I was handcuffed to a wall and I remained standing against the wall all night. They had handcuffed both my hands, pulling me apart; to be more precise, each handcuff was attached to a chain. Being in that uncomfortable position caused, among other things, an injury to my left shoulder ...” 44. In an order of 2 October 1991 the President of the Indictment Division appointed a second expert, Dr Ensfelder, who on 27 December 1991 submitted a report in which he stated: “The incident at the Le Lorrain police station on 29 September 1988 resulted in pain in the lumbar region and the wrists, and a bruise on the right shoulder (an X-ray did not reveal any bone fractures) which required medical treatment supplemented by physiotherapy to restore function. In view of the nature of those injuries and the treatment prescribed, the twenty days ordered by the attending physician can reasonably be accepted as a period of total unfitness for work. The occupation of a heavy-plant driver makes considerable demands on the joints of the upper limbs, in particular the shoulder joint, and cannot be carried on unless that joint is functioning properly.” 45. The expert report was notified to the applicant on 18 March 1992. 46. On 24 June 1992 the President of the Indictment Division sent a letter of request to the President of the Metz Court of Appeal, seeking to have charges brought against police officer Marchal, who had in the meantime been transferred to the French mainland. 47. On 27 July 1992 police officers Munier and Bavarin were interviewed at their first examination by the investigating judge and were charged with assaulting the applicant. Mr Marchal was charged on 25 August 1992. On 20 October 1992 the President of the Indictment Division requested information from the commanding officer of the Martinique police (gendarmerie), who replied on 23 October. 48. On 10 November 1992 the President of the Indictment Division directed that the court should inspect the scene of the events. 49. On 7 December 1992 the applicant was examined by the investigating judge. The following is an extract from the record of the examination: “I informed [the applicant] that, according to information I had obtained after Mr Marchal had been charged ..., Mr Marchal had not been in Martinique at the material time – that is to say, on 29 and 30 September 1988. [The applicant]: I still wish to maintain my complaint against Mr Marchal ... but I don't know the names of the white policemen who hit me ... I knew police officer Bavarin, who is West Indian. I maintain that the three officers beat me. It was Bavarin who threw me to the ground; I fell on my left shoulder and he climbed on top of me to immobilise me and called two policemen in shorts ...; it was after the doctor examined me, after the doctor came, that I was ill-treated: they fastened a chain to me and put it around my neck – or to be more precise, they fastened the chain to my arms and neck and left me in a corner of the room, in the police station; I was chained up like that all day and all night with nothing to eat; I maintain that I was ill-treated before and after the doctor came; I repeat that I fell on my left shoulder and had a pain in that shoulder which required fifteen days of massage; it was when the officers pressed themselves against me (before the doctor came) that they caused pain in my right shoulder. I maintain categorically that violence was inflicted on me before and after the doctor came.” 50. On 25 January 1993 the President of the Indictment Division held a confrontation between the applicant and police officers Munier and Bavarin. The following is an extract from the record of the confrontation: “I pointed out [to the applicant] that, according to Mr Munier ..., he had not been at the Le Lorrain police station at the material time ... [The applicant] replied: Police officer ... Munier, whom I recognise ..., was definitely at the police station ...; he was one of the three policemen who hit me. Mr Munier, who is here now, kicked me on the backside. I pointed out [to the applicant] that this was the first time he had stated that he had been kicked on the backside. He replied: I maintain that Mr Munier did kick me on the backside. I asked [the applicant] who had handcuffed him. He replied: It was Mr Bavarin who handcuffed me and put the chain around my neck. Mr Bavarin punched me all over. I pointed out [to the applicant] that Dr Kéclard, who had examined him shortly after the events, had not mentioned any blows all over his body. [The applicant] replied: I fell on my left shoulder and received the most blows on the left side of my head. Mr Munier: I confirm the statements I made at my first examination on 27 July 1992. As to the statements which [the applicant] has just made, I can only say that they are untrue; I was not there. ... Mr Bavarin: I confirm in their entirety the statements I made at my first examination on 27 July 1992. I repeat that I never hit [the applicant]. [The applicant]: When Mr Bavarin told me that my wife had said that I had put sand in the engine, I wanted to fetch my wife. When I went off to fetch her, Mr Bavarin held me in the street and punched me. He punched me on my side and all over. I did not tell Dr Kéclard that I had been punched on the side; I mentioned my left shoulder, which hurt the most, and that was what I told the doctor. I asked [the applicant] why Dr Kéclard had referred to his right shoulder in the medical certificate. [The applicant] replied: I was hit on the left shoulder and I felt pain in my right shoulder ...” 51. On 8 March 1993 the President of the Indictment Division directed that the court should inspect the scene of the events. 52. On 26 March 1993 the President of the Indictment Division, in the presence of Dr Cayol and Dr Ensfelder, interviewed Dr Thomas. The following is an extract from the interview: “Question ...: It appears from the medical certificate issued by Dr Kéclard that on 1 October 1988 ... [the applicant] presented with heavy bruising on the right anterior deltoid, with impaired mobility of the right shoulder; signs that both wrists had been bound, causing pain and reduced mobility; and, lastly, lumbar pain ... due to muscular contraction. Could the witness possibly have failed to observe [the applicant's] condition, in the absence of any complaint on his part, when he examined him at the Le Lorrain police station on the afternoon of 29 September 1988? Reply: I questioned [the applicant] and examined him (inspection, auscultation, palpation and mobilisation). [The applicant] did not complain of anything and I did not notice anything abnormal on his body. But it is quite possible that [the applicant] experienced the classic phenomenon found in road accidents, where a person who does not complain of anything immediately after the accident or for the next few hours feels pain two or three days afterwards. It is not inconceivable that that is what happened to [the applicant]. I asked Dr Cayol for his opinion. He said: Where bruising results from muscle or ligament damage, the after-effects are frequently delayed for a period that varies according to the intensity of the traumatic impact and may be as long as two or three days, and the pain arising from inflammation is likewise delayed until that moment. Dr Ensfelder: I agree entirely with the opinion of my colleague Dr Cayol. ... Where bruising results from muscle or ligament damage, mobility is not impaired immediately, contrary to what occurs with fractures or dislocations ...” 53. In additional submissions dated 25 May 1993 the Principal Public Prosecutor at the Basse-Terre Court of Appeal sought to have police officer Gaillard examined and to add to the file the papers in the proceedings brought against the applicant for forceful resistance to a public officer. 54. In a judgment of 17 June 1993 the Indictment Division ordered further inquiries into the facts. 55. After searching for the new address of police officer Gaillard, who had been transferred to the French mainland in 1989, the President of the Indictment Division of the Basse-Terre Court of Appeal sent a letter of request to his counterpart at the Douai Court of Appeal on 13 September 1993, seeking to have evidence taken from the police officer in question. 56. When examined on 21 October 1993 Mr Gaillard stated: “At the material time I was the commanding officer of the Le Lorrain police in Martinique and was in charge of [police officers] ... Bavarin, ... Munier and ... Marchal. ... On the very morning of the events – I was off duty that day – Mr Bavarin went to [the applicant's] home, where he met [the applicant's] wife. ... In the early afternoon I heard shouting outside my window. I went to the window, where I saw a man, who must have been [the applicant], running away from the police station. Mr Bavarin was giving chase a few metres behind. I went down straight away to lend Mr Bavarin assistance. I was not in uniform. We restrained [the applicant] in the street ... By the time I arrived, Bavarin had already caught up with [the applicant] and the two of them were fighting, as [the applicant] was lashing out in all directions. We had to use force to restrain him and take him back to the station. Since we did not have any handcuffs, we propelled him along with his arms held behind his back; he later complained of pain in his shoulder. Proceedings were subsequently brought against him for forceful resistance to a public officer. Once inside the police station, we let go of [the applicant], and once again he rolled about on the floor; we consequently had to restrain him again and we handcuffed him while he was still on the ground. While those events took place, only Mr Bavarin and I were present ... [The applicant] subsequently calmed down. I personally asked Bavarin what had happened, and he told me that [the applicant] had run away on realising why he had been summoned to the police station. I went back home just as police officers Munier and Marchal were arriving. Bavarin, who was in charge of the investigation, then questioned [the applicant], in the company of Marchal and Munier. In the afternoon I went down to the police station and was able to make sure that everything was proceeding normally and that no violence had been inflicted on the person of [the applicant] ... I can attest that he was not subjected to any violence. The only violence, if you can call it that, occurred while [the applicant] was being arrested, and it was necessary in view of his state of extreme agitation ...” 57. On 2 December 1993 the Indictment Division ordered the file on the proceedings to be forwarded to the Principal Public Prosecutor, following the completion of the further inquiries. However, on 14 December 1993 the Principal Public Prosecutor's Office submitted that additional inquiries should be carried out. On 26 January 1994 the applicant filed pleadings with the Indictment Division. 58. In a judgment of 10 February 1994 the Indictment Division ordered further inquiries to be carried out with a view to establishing the dates on which Mr Marchal had travelled to the French mainland. On 11 April 1994 the President of the Indictment Division contacted Air France to that end; in a letter of 25 April 1994 Air France gave a negative reply. 59. On 9 May 1994 the accused, the applicant, the witness and their lawyers were summoned to attend a general confrontation on 12 September 1994. 60. On 12 September 1994 the President of the Indictment Division held a further confrontation between the applicant and police officers Munier, Marchal and Bavarin, during which Mr Gaillard also gave evidence as a witness. The record of the confrontation includes the following statements: “Mr Gaillard: In my statement of 21 October 1993 I said that by the time I returned home, Mr Munier and Mr Marchal had arrived. Six years after the events ... it is quite possible that I made a mistake; all I know is that [Marchal] went to the mainland for six or seven days ... [The applicant] stated: Police officer Marchal, who is here in front of me, was not in Le Lorrain on the two days in question. ... [The applicant] confirmed that Mr Munier, Mr Bavarin and Mr Gaillard had been present at the material time ... Mr Bavarin: I confirm my previous statements: I did not hit [the applicant] at all, either while arresting him or afterwards. When we were rolling on the ground I tried as hard as possible not to hurt him. ... I can state that later on, when we were inside the police station, I did not hit him, tie a chain around him or ill-treat him in any way ... In view of the fact that [the applicant] had tried to escape, I or another police officer handcuffed him while he was being questioned, but later, when we put him in the security cell, we took the handcuffs off. Whenever he was in the office, and even during periods of rest, we kept the handcuffs on him, as there was a chance that he might run away. I can confirm that when I and a colleague, whose name I no longer remember, put [the applicant] in the security cell, we removed the restraints (the handcuffs) from him – I can't remember exactly whether it was my colleague or I who took the restraints off – so that he was not bound in any way; in fact, that is how I always proceed. I called the doctor because I thought that [the applicant] might have injured himself when he fell. [The applicant]: [After the doctor left], I remained in the cell and Bavarin hung me up by the arms. Question: What did he hang you on? [The applicant]: It was dark, so I couldn't see. I stayed hanging up until the next day, [and] in the morning he let [me] go and took me to his office to confess the truth. He wrote a lot down and made me sign a lot of documents. I stayed inside without anything to eat. Question [to Mr Bavarin]: Did you or did you not attach him to anything? Mr Bavarin: I did not attach or suspend [the applicant] in any way; indeed, security cells are designed in such a way that you can't hang anything up, for the detainees' safety. [The applicant]: When they put me in the security cell, there were three police officers, Bavarin, Munier and Gaillard, and I remained handcuffed in the cell. It was Bavarin who hung me up; Munier kicked me; and Gaillard was standing there and didn't do anything to me; ... I arrived at 2.30 p.m. and they put me in the security cell shortly afterwards. It was not until late in the evening that they hung me up in the cell; it was Bavarin who hung me up and I stayed like that all night. Mr Bavarin: At no time did I hang [the applicant] up in the security cell in any manner whatsoever. [The applicant]: I don't know what they attached me to; as I said, it was dark. When day broke it wasn't very light in the security cell. The cell was not lit up; I didn't see a lamp or a switch or anything. I was hung up by a chain with my arms apart. I can't tell you the size of the chain; there were handcuffs at both ends, but I didn't see how big the links in the chain were. Question: How did Mr Bavarin manage to hang you up? [The applicant]: He's the one who knows what it's like inside the cell; I don't know. ... Bavarin put the handcuffs on both my arms; he's the only one who knows how he hung me up. Question [to Mr Gaillard]: How are security cells set out? Mr Gaillard: There were two security cells in the police station at the time, and they were fully in conformity with the regulations; there were no hooks or bars inside them. As far as I recall, there were air vents of 8 mm or 10 mm, slightly broader than a cigarette. Our handcuffs are a standard design and cannot possibly be used to hold a person's arms apart. I fail to see how we could have hung someone up in the security cell when we had been having trouble restraining him. I can state that when Mr Bavarin took [the applicant] into the security cell in the evening, I was not there. The light switch for the security cell is outside the cell; the light bulb is embedded in the thickness of the wall inside a block of reinforced glass. Question [to Mr Bavarin]: How do you account for the marks which the doctor observed on [the applicant's] wrists? Mr Bavarin: Very often when you put restraints on people, they leave marks on their wrists.” 61. In a judgment of 15 December 1994, delivered after the applicant had filed pleadings on 7 October and 23 November 1994, the Indictment Division held, in accordance with the Principal Public Prosecutor's submissions of 25 October 1994 and after reiterating the applicant's and the police officers' accounts and the medical findings, that there was no serious evidence against the officers in question. 62. It held: “Whether the three persons placed under investigation should be committed for trial depends on the answers to the following questions: 1. Did any violence occur? Caloc referred initially to a scuffle (29 September 1988 and 23 February 1989); he later referred to blows, without giving any further details ('I was hit', 'beaten' – 28 February 1989), and then to unspecified blows but also to being chained up all night (2 September 1991) and all afternoon (7 February 1992); lastly, besides that form of ill-treatment, he spoke of specific blows on his buttocks, his side, the left-hand side of his head and all over his body (25 January 1993). Police officers Bavarin and Gaillard mentioned a scuffle, while the latter stated that Caloc had been taken back to the police station with both his arms held behind his back. They categorically denied that they had inflicted any blows or used a chain. Caloc's statements, the acknowledgment by the two police officers that they used force and Dr Kéclard's medical certificate establish that some violence did occur. 2. What form did the violence take? Caloc and the police officers disagreed on this point, but only from 28 February 1989 onwards. The noticeable escalation in Caloc's successive statements as regards the severity of the violence he suffered does not make his evidence persuasive, unless it can be corroborated by the certificate issued and the statements made by Dr Kéclard. The only visible lesion observed by the doctor was a bruise on the right shoulder. It might have been the result of a blow, but it could also have been caused by a fall. No signs of any blows were observed in the regions mentioned by Caloc at a later stage. It has therefore not been established that he was 'hit' or 'beaten'. The pain, scoliosis and marks indicating that both wrists had been bound may, however, be consistent with a fall, a scuffle and being chained up. 3. When did the violence occur? According to the police officers, in the early afternoon, at about 2.15 p.m., when they had to use force to restrain Caloc, who was putting up resistance after running away. According to the complainant, in the early afternoon, while he was offering resistance to the police officers – in any event, before Dr Thomas's visit (statements from September 1988 to March 1989) – or before and after the doctor's visit, including the following night (later statements). What weight can be attached to the police officers' statement? Their version of the events is coherent, consistent in time and credible as a whole; their disagreement on two specific points does not affect the overall account. There remains the possibility that they concealed their knowledge of events that had occurred after they restrained Caloc. What weight can be attached to Caloc's statements? The statements he gave at different times contain a fundamental contradiction, which naturally diminishes their credibility. When was he telling the truth? According to the complainant, from March 1989 onwards, since the statements made before that date had been taken by police officers, including two of the officers under investigation. The statements had, he argued, been distorted by his fear of the police officers and his comprehension difficulties as no interpreter was present. Those obstacles had disappeared when [he] was able to speak to a judge with the assistance of an interpreter. Moreover, his later statements, which referred to violence being inflicted well beyond the early afternoon, were, in his submission, corroborated by two circumstances: firstly, no physical anomalies had been noted during Dr Thomas's visit, yet a number of lesions had subsequently been observed by Dr Kéclard; secondly, he had denied the offence on 29 September, yet a confession had suddenly been obtained the following day. Accordingly, he argued, something had happened between the first and second medical examinations and between the denials and the confessions. However, that reasoning is not in any way consistent with the evidence. Even leaving aside the initial record drawn up by Mr Bavarin, it is clear that in his statements of 23 February, which were made with the assistance of an interpreter, Caloc gave exactly the same version of the events. Admittedly, when he was interviewed again five days later by police officers, this time from the La Trinité force, he retracted those statements, maintaining that he had not wanted to 'annoy' the police officers, but on the very same day (28 February) he reiterated his account, stating clearly: 'All the acts of violence which I have reported were carried out before the man [Dr Thomas] visited me ... All the blows were inflicted while the officers were restraining me.' This third record, which was signed by Caloc in front of the officers from the La Trinité police, against whom there could not have been any suspicion of the acts of violence of which he complained, plainly corresponded finally to the truth in his eyes and cannot be erased by his subsequent statements. If any violence had occurred while he was being questioned or 'chained up', he would not have failed to mention it on that occasion. It should be noted that the allegation of a chain being tied around his neck and attached to the wall of the cell was not made spontaneously by Caloc. He did not refer to that incident until his first examination on 2 September 1991 by the President of the Indictment Division of the Basse-Terre Court of Appeal, although it had been mentioned much earlier in documents drawn up by his lawyer (the pleadings filed with the registry of the Court of Appeal on 1 March 1990, the day before the hearing in that court's Indictment Division). The allegation is, moreover, wholly incompatible with the standard official design of security cells, and Caloc was confused about the matter at the general confrontation on 12 September 1994. The fact that Caloc did not complain of any pain to Dr Thomas but did to Dr Kéclard two days later does not necessarily mean that any violence occurred in the intervening period, since, as the three doctors interviewed on 26 March 1993 pointed out, pain is sometimes not felt until two to three days afterwards. Nor were the confessions of 30 September necessarily the result of ill-treatment meted out the night before. Caloc was entirely at liberty to retract them shortly afterwards. Yet he did not do so until the hearing on 13 March 1989, having in the meantime confirmed them to other police officers and a member of the State legal service. There is therefore no proof at all that Adrien Caloc was ill-treated after the police officers' initial efforts to restrain him; only at that time was he subjected to any violence, the physical effects of which were noted by Dr Kéclard. 4. Who was responsible for the violence? Certainly not Mr Marchal, who was nonetheless formally accused by Caloc before he withdrew his accusations at the last confrontation. It has been established that that officer was in mainland France at the material time. Nor was Mr Munier responsible, since he was not at the police station at the time of the initial events and only returned later, while Caloc was being questioned. The violence was indisputably perpetrated by Mr Bavarin and Mr Gaillard, who acknowledge that they used force. However, the complainant has lodged no complaint against the latter officer. 5. Was the violence unlawful? In his first version Caloc acknowledged that he had 'run off' or left the police station 'in a hurry'. He admitted to having 'put up some resistance', 'gesticulating wildly' as the police officers sought to restrain him. In his second version he tried to deny that episode, but the observations made above on the respective weight to be attached to Caloc's two versions are also valid here. The use of force to restrain Caloc while he was offering resistance to the police officers who were arresting him was perfectly legitimate. The violence inflicted on that occasion did not go beyond what is acceptable in such matters: it can be concluded from the medical findings that there was a scuffle and a fall, but that no blows were struck and no weapons were used. The marks that appeared on Caloc's wrists were those commonly left by handcuffs. The answer to the fifth question is therefore 'no'. In conclusion, it appears after a thorough assessment of the case file that there is no serious evidence against the police officers concerned or against any other person.” 63. After the applicant had appealed on points of law on 19 December 1994 and filed full pleadings on 20 June 1995, the Criminal Division of the Court of Cassation upheld the Indictment Division's judgment on 6 March 1996, holding: “The Indictment Division, referring to the expert medical opinions and the evidence and statements obtained during the police investigation and the judicial investigation, set out its reasons for holding that there was not sufficient evidence of intentional violence by anybody on the person of [the applicant].” 64. After being held in police custody from 29 to 30 September 1988, the applicant was charged with intentional damage to another person's property and forceful resistance to a public officer, and the file on Mr Vildeuil's complaint was forwarded to the public prosecutor's office. 65. Following a further complaint against him, lodged on 12 December 1988 by another heavy-plant owner, Mr Remir, the applicant was again taken into police custody by the Le Lorrain police, in the person of Mr Munier, on 23 February 1989 at 8.30 a.m. and was detained until 8 o'clock the following morning. He admitted the offence and gave statements about his initial period in police custody in September 1988 (see paragraph 20 above). 66. On 24 February 1989 the applicant appeared before the Fort-de-France Criminal Court in accordance with the direct-committal procedure, but asked for time to prepare his case. He was released under court supervision and was accordingly required to report to the Le Lorrain police station on 27 February and 16 March 1989. The hearing was adjourned until 13 March 1989. 67. At the hearing, according to the court record, there was a dispute between the public prosecutor and the defendant's lawyers when the public prosecutor refused to exclude a witness. The lawyers went to find the Chairman of the Bar, who demanded an apology from the public prosecutor for stating that he would not be told what to do by lawyers who knew nothing about procedure. When the public prosecutor refused to apologise and asked for it to be noted in the record that the lawyers had advised him to take another look at his copy of the Code of Criminal Procedure and had called him an incompetent bully, all the lawyers present left the courtroom, having had their request for an adjournment refused, and the hearing therefore continued without them. The police officers confirmed their statements, while the applicant argued that he had admitted the offence because he had been hit. In addition, evidence was heard from the doctors (Dr Thomas had also given evidence during the police investigation on 1 March 1989). 68. In a judgment of 10 April 1989 the Fort-de-France Criminal Court found the applicant guilty of intentional damage to another person's property and forceful resistance to a public officer, and gave him a six-month suspended prison sentence. 69. Appeals against the judgment were lodged by the public prosecutor's office on 11 April, the complainant on 14 April and the applicant on 17 April 1989. 70. On 7 December 1989 the Criminal Appeals Division stayed the proceedings in respect of the charges of intentional damage and forceful resistance until a final decision had been given on the applicant's criminal complaint and civil-party application alleging assault during his time in police custody (see above). 71. In judgments of 5 April and 29 November 1990 the Criminal Appeals Division again stayed the proceedings for the same reasons. 72. According to the information in the file, the proceedings against the applicant have not since been resumed by the public prosecutor's office. 73. Article 687 of the Code of Criminal Procedure (since repealed) provides: “Where a senior law-enforcement officer [officier de police judiciaire] is likely to be charged with a criminal offence, allegedly committed in the area in which he performs his duties, whether or not in the course of those duties, ..., the public prosecutor dealing with the case shall without delay submit an application to the Criminal Division of the Court of Cassation, which shall proceed and determine the matter in accordance with the procedure for settling conflicts of jurisdiction and shall designate the court responsible for the investigation or trial of the case.” 74. It is clear from previous cases that the procedure laid down in Article 687, which was in force at the material time, must be set in motion without delay by the public prosecutor – regardless of whether the proceedings were instituted by the prosecution or by the complainant – as soon as the senior law-enforcement officer is accused and therefore likely to be charged. Otherwise, the investigating judge and, consequently, the Indictment Division have no jurisdiction (Criminal Division, 7 November 1973, Bulletin criminel no. 405; 22 June 1978, ibid., no. 210; Full court, 31 May 1990, ibid., no. 221). In addition, a senior law-enforcement officer named in a complaint as the perpetrator of an offence must be regarded as likely to be charged within the meaning of Article 687; it is not necessary to find that there is sufficient evidence to warrant the charge. Lastly, the procedure laid down in Article 687 must be set in motion by the public prosecutor, regardless of whether proceedings were instituted by means of direct committal or on a complaint lodged with a civil-party application (Criminal Division, 15 January 1968, D. 1969, 509, note by J.-M.R.).
| 1
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train
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001-23701
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ENG
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HUN
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ADMISSIBILITY
| 2,004
|
MAZSA and PAPP v. HUNGARY
| 4
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Inadmissible
| null |
The applicants, Mr István Mázsa and Mr Sándor Papp, are Hungarian nationals, who were born in 1959 and 1958, respectively, and live in Becsehely and Galambok, Hungary. They are represented before the Court by Mr L. Noll, a lawyer practising in Nagykanizsa, Hungary. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1987 the applicants instituted proceedings before the Tapolca District Court seeking damages from a company and its board members. On 28 April 1989 the court allowed their action. On appeal, on 8 June 1990 the Veszprém County Regional Court modified the first-instance judgment and reduced the amount of damages awarded. This judgment became final. The judgment was not executed. On 7 July 1993 the defendants requested the District Court to re-open the case as the final judgment had been based on false information. On 14 April 1994 the court accepted their request and ordered the case to be re-opened. On the applicants’ appeal, on 24 June 1994 the Regional Court annulled the first-instance order and remitted the case to the District Court, holding that the defendants had failed to append the documents cited in their request. Subsequently, the District Court again ordered the re-opening of the case. The applicants’ appeal against this order was dismissed on 19 April 1996 by the Regional Court. On 23 February 1999 the District Court annulled the final judgment of 8 June 1990 and ordered the defendants to pay a reduced amount of damages to the applicants. On the appeals of both parties, on 27 August 1999 the Regional Court modified parts of the first-instance judgment of 28 April 1989 in so far as they concerned the applicants and upheld the final judgment of 8 June 1990. A copy of the decision of 27 August 1999 was received, with a view to its despatch, at the Tapolca District Court on 28 September 1999. It was posted by registered mail at the Tapolca Post Office on 30 September 1999. On Friday, 1 October 1999 it was received at the Nagykanizsa Post Office with a view to its delivery. The Government have submitted the avis de réception attached to the letter containing the decision. They maintain that the handwritten date of service appearing on the avis de réception is 1 October 1999. A letter sent by the Legal Directorate of the Hungarian Postal Service corroborated that the decision was served on the applicants’ lawyer on that date. The applicants have submitted a copy of the decision which was allegedly stamped on arrival at their lawyer’s office on Sunday, 10 October 1999. The Government submit that no postal delivery takes place on Sundays in Hungary.
| 0
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train
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001-80897
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ENG
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FRA
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CHAMBER
| 2,007
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CASE OF PARTI NATIONALISTE BASQUE - ORGANISATION REGIONALE D'IPARRALDE v. FRANCE
| 1
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No violation of Art. 11 or 11+10;Not necessary to examine P1-3
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Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Loukis Loucaides
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4. The applicant party is established as an association registered on the basis of the Associations Act of 1 July 1901. Its name in Basque is Euzko Alderdi Jeltzalea – Iparraldeko Erakundea (Basque Nationalist Party – Iparralde Regional Organisation), and its registered office is in Bayonne (France). “Iparralde” is the Basque designation for part of south-western France. Its constitution of 19 August 1996 states that it is “formed as a regional branch of the EAJ-PNB in the provinces of Laburdi (Labourd), Benafarroa (Lower Navarre) and Zuberoa (Soule)” and adopts “the national ideology of the EAJ-PNB” and “the traditional principles and modus operandi of the EAJ-PNB to the extent that they are compatible with the present Constitution”. The EAJ-PNV (Euzko Alderdi Jeltzalea – Partido Nacionalista Vasco; the French abbreviation is EAJ-PNB) is a political party established under Spanish law whose aim is to defend and promote Basque nationalism. 5. The applicant party states that its activities are the same as those of any political party: it devises political programmes, puts forward candidates for elections and takes part in election campaigns. 6. In order to be able to receive funds, in particular financial contributions from the EAJ-PNV, the applicant party formed a funding association in accordance with section 11 of the Political Life (Financial Transparency) Act of 11 March 1988. On 16 September 1998 it applied to the National Commission on Election Campaign Accounts and Political Funding (Commission nationale des comptes de campagnes et des financements politiques – “the CCFP”) under section 11-1 of the same Act for authorisation of the funding association. On 22 January 1999 the CCFP rejected the application, giving the following reasons in its decision: “... [The CCFP] has been asked to authorise the funding association for the Parti nationaliste basque as that political organisation’s funding association within the meaning of section 11 of the Act of 11 March 1988 as amended. It was noted in the Commission’s opinion published in the Official Gazette of 18 November 1998 ... and was acknowledged by the [applicant] party’s chairman in his letter of 20 January 1999 that the party receives funds from the Spanish Basque Nationalist Party. Section 11-4 of Law no. 88-227 of 11 March 1988, as amended by section 16-1 of Law no. 95-65 of 19 January 1995, prohibits the funding of a political party by any foreign legal entity [personne morale]. The Parti nationaliste basque receives financial support from the Spanish Basque Nationalist Party, whose official recognition under Spanish law does not in any way remove its status as a foreign legal entity. Accordingly, this unlawful source of funding, which accounts for most of the resources of the Parti nationaliste basque, precludes the party from having a funding association authorised in accordance with the law. ...” 7. On 22 June 1999 the applicant party applied to the CCFP to reconsider its decision. The application was refused on 2 July 1999 in a decision worded as follows: “... As to the [alleged] absence of a ban on the financing of a French political party by a foreign political party: Having compared the provisions of Article L. 52-8 of the Elections Code, applicable to election campaigns, and section 16-1 of the Act of 19 January 1995, the applicant contends that section 16-1 ... simply states that only a political party can fund another political party and that, contrary to the position regarding election campaigns, no provision of any statute or regulations expressly prohibits the funding of a political party by another political party established under the law of a foreign country. This argument disregards the fifth subsection of section 11-4 of the Act of 11 March 1988, as amended by the Acts of 15 January 1990 and 19 January 1995, which provides: ‘No funding association or financial agent may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ Pursuant to section 11 of the Act of 11 March 1988, the intervention of a funding association or financial agent is compulsory for the receipt of funds. It thus follows from these two provisions, read together, that a party cannot receive funds from a political party that is a foreign legal entity. As to the [alleged] infringement of the Community principle of the free movement of capital and [alleged] incompatibility with developments in national electoral law: These two principles conflict with express provisions of French law. Firstly, the free movement of capital does not prevent local law from regulating certain aspects of this principle. Secondly, the transnational representativeness of parties does not necessarily presuppose financial support from abroad and, contrary to what the applicant argues, the prohibition of such support does not in any way impair the full exercise of the right to vote and to stand for election. ...” 8. On 3 September 1999 the applicant party applied for judicial review of that decision to the Conseil d’Etat, which dismissed the application on 8 December 2000 in a judgment worded as follows: “... Section 11 of the Political Life (Financial Transparency) Act (Law no. 88-227 of 11 March 1988), in the wording resulting from Law no. 90-55 of 15 January 1990, provides that political parties and their territorial and specialist organisations ‘collect funds through the intermediary [of an agent] duly designated by them, which may be either a funding association or an individual’. Section 11-1, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, provides that ‘authorisation to act as a political party’s funding association shall be given by the National Commission on Election Campaign Accounts and Political Funding’. It follows from the first subsection of section 11-6, inserted into the Act of 11 March 1988 by the Act of 15 January 1990, that the granting of authorisation is subject to the funding association’s compliance with the requirements of sections 11-1 and 11-4 of the Act. Among the requirements concerned are those set forth in the penultimate subsection of section 11-4, which provides: ‘No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity.’ ... Substantive legality The applicant group argues that the Commission erred in its application of section 11-4 of the Act of 11 March 1988 and that, should the Commission’s interpretation be held to prevail, the statutory provisions cited in support of its decision should be struck down as being contrary to the Constitution and incompatible with France’s international obligations. As to the alleged erroneous application of section 11-4 of the Act of 11 March 1988: ... the penultimate subsection of section 11-4 of the Act of 11 March 1988 prohibits funding associations from receiving financial contributions ‘from a foreign State or a foreign legal entity’. Foreign political parties, which belong to the category of foreign legal entities, fall within the purview of that prohibition. The amendments resulting from the Act of 19 January 1995 to the second subsection of section 11-4 with the effect, firstly, of prohibiting a legal entity from funding a party or a political group and, secondly, of excluding ‘political parties and groups’ from this prohibition on account of the role conferred on them by Article 4 of the Constitution of 4 October 1958 had neither the purpose nor the effect of exempting foreign political parties from the prohibition on the funding of a French political party by any foreign legal entity. Consequently, the applicant group has no basis for arguing that the impugned decision was based on an erroneous application of the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988 in conjunction with the second subsection of that section. As to the alleged breach of Article 11 of the Declaration of the Rights of Man and of the Citizen: It is not for the Conseil d’Etat, acting in its judicial capacity, to assess whether the law is compatible with the Constitution. Accordingly, the argument that section 11-4 of the Act of 11 March 1988 contravenes Article 11 of the Declaration of the Rights of Man and of the Citizen, to which the Preamble to the Constitution refers, fails. As to the alleged incompatibility of the law with France’s international obligations: As regards the Convention for the Protection of Human Rights and Fundamental Freedoms: The applicant group relies on the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10, paragraph 1, of which secures freedom of expression to everyone ‘without interference by public authority and regardless of borders’ and Article 14 of which provides that the enjoyment of the rights and freedoms set forth in the Convention is to be secured ‘without [discrimination] on any ground such as ... national ... origin ...’. Even accepting, as the applicant group argues, that the rules on the conditions for funding political parties have a bearing on the right to freedom of expression within the meaning of paragraph 1 of Article 10 of the Convention, which includes, as well as the freedom to hold opinions, ‘the freedom to receive and impart information and ideas’, paragraph 2 of the same Article nonetheless provides that ‘[t]he exercise of these freedoms, since it carries with it duties and responsibilities’, may be subject to such ‘restrictions ... as are prescribed by law and are necessary in a democratic society’ to the extent that they satisfy one or other of the requirements set forth in that paragraph, among which is ‘the prevention of disorder’. Political groups and parties falling within the purview of Article 4 of the Constitution of the French Republic are intended to contribute to the exercise of suffrage in the implementation of national sovereignty. In prohibiting foreign States and foreign legal entities from funding national political parties, the legislature sought to preclude the possibility of creating a relationship of dependency which would be detrimental to the expression of national sovereignty. The aim thus pursued is linked to the ‘prevention of disorder’ within the meaning of paragraph 2 of Article 10 of the Convention. On account of both the justification of this measure and the fact that the right to freedom of expression is affected only indirectly by the rules governing the funding of political parties, and in view of the margin of appreciation which Article 10, paragraph 2, affords the national legislature, the provisions of section 11-4 of the Act of 11 March 1988 are not incompatible either with the requirements of Article 10 of the Convention, or indeed with those of Article 14. As regards Community law: The applicant group argues that since the resources obtained by the funding association whose authorisation has been refused stem from a political party with its registered office in a member State of the European Community, the provisions of the penultimate subsection of section 11-4 of the Act of 11 March 1988, in so far as they apply to a situation governed by Community law, are incompatible with a number of provisions of the Treaty establishing the European Community. ... Thirdly, even supposing that the rules governing the funding of political parties may, in certain respects, have a bearing on the free movement of capital between member States as guaranteed by Article 56 of the EC Treaty, that Article, as Article 58 clearly indicates, does not affect the right of member States to ‘take measures which are justified on grounds of ... public security’. Regard being had both to the aim it pursues and to the limited impact it has on the free movement of capital, the prohibition set forth in the penultimate subsection of section 11-4 of the Act of 11 March 1988 is to be counted among the measures that may be taken by a member State under Article 58 of the Treaty. Accordingly, the submission that the Act is incompatible with Article 56 must be dismissed. Fourthly, the provisions of section 11-4 of the Act of 11 March 1988, which, as stated above, are intended to avoid creating any relationship of dependency between political parties in the performance of their function and a foreign State or a foreign legal entity, are likewise not incompatible with the provisions of Article 191 of the Treaty, which appear in a part of the Treaty dealing with the Community institutions and more specifically the European Parliament, and which read: ‘Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.’ Accordingly, and even supposing that Article 191 creates any rights in respect of private individuals, this submission must fail. ...” 9. The first paragraph of Article 4 of the Constitution of 4 October 1958 provides: “Political parties and groups shall contribute to the exercise of suffrage. They shall be formed and carry on their activities freely. They shall respect the principles of national sovereignty and democracy.” Section 7 of the Political Life (Financial Transparency) Act (Law no. 88227 of 11 March 1988) reaffirms that “political parties and groups shall be formed and shall carry on their activities freely”, adding that they have legal personality and are entitled to take part in court proceedings and to acquire movable and immovable property, by way of gift or for consideration, and that they “may perform any actions consistent with their purpose, including establishing and running newspapers and training institutions in accordance with the statutory provisions in force”. 10. The financing of politics in general and political parties in particular is governed by law (main source: technical files on the Senate’s website, www.senat.fr). 11. In addition to the operating costs they have to meet in the same way as any other association, political parties incur significant expenditure during election campaigns. They have two main sources of funds: private funding, which is generally modest, and State funding, which nowadays accounts for a decisive share. 12. Like any association, political parties may charge membership fees. In practice, however, these account for only a very small proportion of their resources. 13. The Act of 11 March 1988 (as amended) gives them the further possibility of receiving donations from individuals (donations from other legal entities are in principle prohibited); however, voluntary contributions from individuals are traditionally modest. The following provisions of the Act of 11 March 1988 (as amended) are relevant to the present case: “Political parties and the territorial or specialist organisations they may designate for this purpose shall collect funds through the intermediary of an agent duly designated by them, which may be either a funding association or an individual.” “Authorisation of a political party’s funding association shall be granted by the National Commission on Election Campaign Accounts and Political Funding referred to in Article L. 52-14 of the Elections Code, provided that the sole object of the association is the funding of a political party and that its articles of association comply with the provisions of the following subsections of this section. The authorisation shall be published in the Official Gazette. The articles of an association authorised to act as a political party’s funding association must include: (1) the delimitation of the geographical area within which the association is to carry on its activities; and (2) an undertaking to open a single bank or post-office account into which all donations received for the funding of a political party are to be deposited.” “The political party shall declare in writing to the prefecture of the département in which its registered office is situated the name of the individual it has chosen as its financial agent. The declaration must be accompanied by the express consent of the person designated and must specify the geographical area within which the financial agent is to perform his or her duties. The financial agent must open a single bank or post-office account into which all donations received for the funding of the political party are to be deposited.” “Donations made by duly identified individuals to one or more associations authorised as funding associations or to one or more financial agents of the same political party may not exceed 7,500 euros per annum. Other legal entities, with the exception of political parties or groups, may not contribute to the funding of political parties or groups, either by making donations in any form to their funding associations or financial agents or by providing them with property, services or other direct or indirect benefits for less than the usual price. The funding association or financial agent shall provide the donor with a receipt. A decree issued after consultation of the Conseil d’Etat shall lay down the conditions for drawing up and using such receipts. This decree shall also determine the procedure whereby receipts issued for donations by individuals of amounts lower than or equal to 3,000 euros shall not mention the name of the receiving party or group. All donations of more than 150 euros to a funding association or financial agent of a political party must be made by cheque. No funding association or financial agent of a political party may receive direct or indirect contributions or material assistance from a foreign State or a foreign legal entity. Notices and documents issued by the funding association or financial agent to third parties for the purpose of soliciting donations must indicate, as appropriate, the name of the association and the date of its authorisation or the name of the agent and the date of the declaration to the prefecture, and also the political party or group for which the sums collected are intended.” “Anyone who makes or accepts donations in breach of the provisions of the preceding section shall be liable to a fine of 3,750 euros or one year’s imprisonment or both.” “The authorisation of any association that has failed to comply with the requirements laid down in sections 11-1 and 11-4 of this Act shall be revoked. In that event, or where the summary statement mentioned in section 11-1 is found not to have been transmitted, the votes obtained in the geographical area of the association’s activity by the political party or group which requested its authorisation shall be discounted, for the following year, from the total referred to in the first subsection of section 9 above.” “No political party or group which has obtained authorisation for a funding association or has appointed a financial agent may receive donations from duly identified persons other than through the intermediary of such association or agent. In the event of a breach of this requirement, the provisions of the last subsection of section 11-7 shall apply.” 14. Every year, appropriations are set aside in the Budget Bill for political parties and groups; one half is allocated according to their results in the last election to the National Assembly and the other half according to their representation in Parliament (section 8 of the Act of 11 March 1988 as amended). The first portion of these subsidies is distributed among parties and groups which put forward candidates who each obtained at least 1% of the votes cast in at least fifty constituencies in the most recent election to the National Assembly, or which put forward candidates solely in one or more overseas départements or in St Pierre and Miquelon, Mayotte, New Caledonia, French Polynesia or Wallis and Futuna who obtained at least 1% of the votes cast in all constituencies in which they stood. The second portion is distributed among parties and groups eligible for the first portion, in proportion to the number of members of parliament belonging to or attached to them (section 9 of the Act of 11 March 1988 as amended). State subsidies are now the main source of political parties’ funding (80,264,408 euros (EUR) was distributed among more than forty parties or groups in 2002). In addition, the State grants parties resources which may be regarded as indirect funding. Outside election campaign periods, political organisations represented by parliamentary groups in the National Assembly or the Senate are entitled to “air time”, allowing them to broadcast on public radio stations and television channels; they are also granted certain tax concessions (reduced-rate corporation tax) on some of their own income (for example, from leasing out their buildings and undeveloped land). 15. Except in the case of the election of département councillors in cantons with fewer than 9,000 inhabitants or municipal councillors in municipalities with fewer than 9,000 inhabitants, all candidates intending to receive donations for the organisation of their campaigns are required to do so through a financial agent, who is the sole person entitled to collect funds to cover campaign costs and the payment of expenses (except for those borne by a political party or group). Donations from individuals are capped at EUR 4,600 per candidate per campaign. Contributions from other legal entities, with the exception of political parties and groups, and from foreign States or foreign legal entities are prohibited (Articles L. 52-4 and L. 528 of the Elections Code). Election expenditure is subject to a ceiling according to the number of inhabitants in the constituency concerned (Article L. 52-11 of the Elections Code). The financial agent must keep campaign accounts recording all receipts and expenditure relating to the election campaign. The accounts must be certified by an accountant and submitted to the scrutiny of the National Commission on Election Campaign Accounts and Political Funding, which approves or rejects them. If the accounts are approved, the State reimburses candidates who obtain at least 5% of the votes cast in the first round in the form of a lump sum of up to 50% of the maximum permitted expenditure in the constituency in question, within the limits of the amounts actually spent (see, in particular, Article L. 52-11-1 of the Elections Code). The State bears the costs associated with “official election material”, defined as the cost of paper, printing of ballot papers, circulars, posters and official billposting fees (these costs are reimbursed on the basis of an official scale to candidates obtaining at least 5% of the votes cast). 16. At its 46th plenary meeting (9-10 March 2001), the Venice Commission adopted guidelines on the financing of political parties (document CDL-INF (2001) 8), the relevant parts of which read: “The Venice Commission: Being engaged in the promotion of fundamental principles of democracy, of the rule of law and the protection of human rights, and in the context of improving democratic security for all; Noting with concern problems relating to the illicit financing of political parties recently uncovered in a number of Council of Europe member States; Taking into account the essential role of political parties within democracy and considering that freedom of association, including that of political association, is a fundamental freedom protected by the European Convention on Human Rights and is one of the cornerstones of genuine democracy, such as that envisaged by the Statute of the Council of Europe; Paying particular attention to State practice in the area of financing of political parties; Recognising the need to further promote standards in this area on the basis of the values of European legal heritage; Has adopted the following guidelines: 1. For the purpose of these guidelines, a political party is an association of persons one of the aims of which is to participate in the management of public affairs by the presentation of candidates to free and democratic elections. 2. Such political parties may seek out and receive funds by means of public or private financing. A. Regular Financing a. Public Financing 3. Public financing must be aimed at each party represented in Parliament. 4. In order, however, to ensure the equality of opportunities for the different political forces, public financing could also be extended to political bodies representing a significant section of the electoral body and presenting candidates for election. The level of financing could be fixed by legislator on a periodic basis, according to objective criteria. Tax exemptions can be granted for operations strictly connected to the parties’ political activity. 5. The financing of political parties through public funds should be on condition that the accounts of political parties shall be subject to control by specific public organs (for example by a Court of Audit). States shall promote a policy of financial transparency of political parties that benefit from public financing. b. Private Financing 6. Political parties may receive private financial donations. Donations from foreign States or enterprises must however be prohibited. This prohibition should not prevent financial donations from nationals living abroad. Other limitations may also be envisaged. Such may consist notably of: a. a maximum level for each contribution; b. a prohibition of contributions from enterprises of an industrial, or commercial nature or from religious organisations; c. prior control of contributions by members of parties who wish to stand as candidates in elections by public organs specialised in electoral matters. 7. The transparency of private financing of each party should be guaranteed. In achieving this aim, each party should make public each year the annual accounts of the previous year, which should incorporate a list of all donations other than membership fees. All donations exceeding an amount fixed by the legislator must be recorded and made public. ...” 17. On 22 May 2001 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1516 (2001) on the financing of political parties, the relevant parts of which read: “... 7. The Assembly believes that the rules on financing political parties and on electoral campaigns must be based on the following principles: a reasonable balance between public and private funding, fair criteria for the distribution of State contributions to parties, strict rules concerning private donations, a threshold on parties’ expenditures linked to election campaigns, complete transparency of accounts, the establishment of an independent audit authority and meaningful sanctions for those who violate the rules. 8. Accordingly, the Assembly considers that: A. As regards sources of finance i. States should encourage citizens’ participation in the activities of political parties, including their financial support to parties. It should be accepted that membership fees, traditional and non-controversial sources of finance, are not sufficient to face the ever increasing expense of political competition. ii. Political parties should receive financial contributions from the State budget in order to prevent dependence on private donors and to guarantee equality of chances between political parties. State financial contributions should, on the one hand, be calculated in ratio to the political support which the parties enjoy, evaluated on objective criteria such as the number of votes cast or the number of parliamentary seats won, and on the other hand enable new parties to enter the political arena and to compete under fair conditions with the more well-established parties. iii. State support should not exceed the level strictly necessary to achieve the above objectives, since excessive reliance on State funding can lead to the weakening of links between parties and their electorate. iv. Besides their financial contributions, States may contribute indirectly to financing political parties based on law, for example by covering the costs of postage and of meeting rooms, by supporting party media, youth organisations and research institutes; and also by granting tax incentives. v. Together with State funding, private funding is an essential source of finance for political parties. As private financing, in particular donations, creates opportunities for influence and corruption, the following rules should apply: a. a ban on donations from State enterprises, enterprises under State control, or firms which provide goods or services to the public administration sector; b. a ban on donations from companies domiciliated in offshore centres; c. strict limitations on donations from legal entities; d. a legal limit on the maximum sum of donations; e. a ban on donations by religious institutions. ...” 18. In Recommendation Rec(2003)4 of 8 April 2003 on common rules against corruption in the funding of political parties and electoral campaigns, the Committee of Ministers of the Council of Europe recommended that the governments of member States “specifically limit, prohibit or otherwise regulate donations from foreign donors” (Article 7).
| 0
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train
|
001-60722
|
ENG
|
CYP
|
CHAMBER
| 2,002
|
CASE OF SERGHIDES AND CHRISTOFOROU v. CYPRUS
| 3
|
Violation of P1-1;Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 with regard to access to court;Just satisfaction reserved
| null |
8. In 1959, the applicant acquired freehold ownership of plot 565, Nicosia, with a frontage on Jason Street, which is now called Georgios Grivas Digenis Avenue. She was also issued with a Certificate of Registration of Immovable Property by the Land Registry Office, Registration No. B662, dated 28 April 1959. The surface area of plot 565 was 23,488 square feet. On 16 September 1959 the applicant leased plot 565 to Mobil Oil Cyprus Ltd. On 7 October 1959 Mobil, in its capacity as the representative of the applicant, applied to the municipality of Nicosia and obtained a building permit for the construction of a petrol-station, a carwash and other ancillary structures. In 1969 the lease was renewed until September 1973, with the option to extend until September 1977. In paragraph 1 of the third page of the lease, the rented property was described as being “situated at Grivas Digenis Avenue on plot 565”. Paragraph 5(e) of the lease provided that the landlord authorised the tenant as her agent to sign all applications concerning the plants and works which Mobil would construct, reconstruct, operate and continue to operate on the plot, and generally to do all things necessary on her behalf. 9. On 30 March 1973, Notice No. 612 was published in the Official Gazette of the Republic No. 1002, pursuant to the Streets and Buildings Regulation Law, Cap. 96, by the Municipal Committee of Nicosia, aimed at widening Grivas Digenis Avenue. 10. According to the text of paragraph 1 of the Notice, the affected plots were the following: all plots with frontage on a certain specified part of the Avenue (that is, the part of the Avenue between Prodromos Street and Th. Dervis Street) and certain plots with frontage on both the Avenue and other side roads. (The numbers of these “corner plots” were expressly set out in the Notice.) 11. However, the Notice did not mention that plot 565 was part of the land taken for the widening of the street. 12. The Notice provided that any objection against the widening scheme should be raised within seventy-five days of the publication of the Notice in the Official Gazette. 13. On 11 July 1973, Mobil filed with the Municipality an application for a building permit to make minor alterations to a station built in 1959, the pumps’ shelter and an oil ditch. The distance of the new construction from the newly aligned Grivas Digenis Avenue was more than 10 feet, the distance required by Regulation 6(3) of the Streets and Buildings Regulations. 14. Upon receipt of the application, the Municipality addressed to the applicant, through her duly authorised agent, a letter dated 24 July 1973. It was expressly provided in that letter that the plans of the street-widening scheme relating to the Grivas Digenis Avenue should be taken into account. A copy of the official plan which showed the effect of the street-widening scheme was attached to the letter. 15. According to the Government neither the applicant nor Mobil protested. 16. On 27 March 1978 the building permit was issued. By letter of 28 March 1978, the Municipality of Nicosia requested the Office of the Land Registry and Survey to register as part of the public domain, by virtue of section 13 (1) of the Streets and Buildings Regulation Law, Cap. 96, the part of plot 565 affected by the street-widening scheme. At some time between 1978 and 1979, the District Land Registry Office of Nicosia registered the disputed area of 2,060 square feet as part of Grivas Digenis Avenue. 17. According to the applicant, the Government Survey Plan and the applicant’s title were amended without anyone notifying her. In the Land Register, the ceding of the disputed area to the road was described as follows : “By purchase from the Government after compulsory acquisition + By grant. A public road. Fees: gratis”. The applicant alleges that she was never notified about this amendment of the Register which contains a false declaration. Moreover, Mobil was never notified, as no mention of the expropriation was made in the conditions attached to the building permit which had been granted. Even the letter sent to Mobil on 24 July 1973 only stated that the street-widening scheme would have to be taken into consideration, giving no specific indication that the disputed area would be compulsorily ceded to the road. 18. Although the street-widening plan was made in 1978, the actual widening was not effected until September 1989. On 5 September 1989 Notice of Acquisition No. 1391 was published in Gazette No. 2439. Again, however, the applicant’s plot did not appear to be affected. According to the Government, this was due to the fact that the part of the plot affected by the street-widening scheme had already become part of the street through the earlier procedure, pursuant to sections 12 and 13 of the Streets and Buildings Regulation Law, Cap. 96. 19. The applicant claims that the first time she became aware of the situation was after receiving a Government Survey Plan on 4 September 1989 which she had requested from the Land Registry for the purpose of filing an objection to taxes imposed on some of her immovable property. 20. As the original 1959 registration certificate for plot 565 was lost, the applicant requested a further official copy, which she received on 30 December 1992. However, the certificate had been changed in relation to the surface area of the plot and contained the declaration – “Mode of Acquisition: By virtue of purchase by the Government after Compulsory Acquisition and by virtue of cession to the public road”. 21. On 17 November 1989 the applicant lodged an application with the Supreme Court of Cyprus, sitting at first instance, against both the Municipality of Nicosia and the Republic. She asked the court to declare the Land Registry’s Office decision to take away 2,060 square feet of her land, as well as the decision to declare that piece of land to be part of a public road, void and without any legal effect. The applicant invoked Article 23 (2) and (4) of the Constitution (see Relevant Law below). 22. On 22 January 1990 the application was fixed for directions before the Supreme Court on 16 March 1990. On 23 January 1990 the Republic filed its opposition. On 16 March 1990 the court directed the Municipality to file its opposition by 23 April 1990. On that date as well as on 15 May 1990 and 11 June 1990, the Municipality applied for consecutive extensions. The applicant’s lawyer stated on each occasion that he did not object. On 20 June 1990 the Municipality filed its opposition. On 19 September 1990 the applicant filed her observations. On 6 December 1990 and 8 February 1991 the Republic and the Municipality applied for an extension of the time-limit for filing their observations in reply. These observations were filed on 14 April 1991 and 8 May 1991. On 12 June 1991 and 13 September 1991 the applicant’s lawyer was granted two further extensions for submitting additional observations. 23. On 22 January 1992 the Supreme Court reserved its decision, which was not rendered until 2 February 1993. 24. On 8 December 1992 the applicant transferred the ownership of plot 565 to her children by way of donation. According to the relevant Declaration of Transfer submitted by the Government, she transferred the totality of her legal title in plot 565 without any reservation whatsoever. This fact was not brought to the knowledge of the Supreme Court by the applicant. 25. According to the applicant, as she was seriously ill, she transferred the ownership of 21,428 square feet of land out of the total 23,488 square feet which she had originally held in 1959, with a half share to each to her two children – Mrs A. Christoforou and Dr G.A. Serghides. The remaining 2,060 square feet which she did not transfer is the disputed area. The entry of this transfer in the Land Registry Office appears to have been made on 23 February 1993. 26. On 2 February 1993, the Supreme Court rejected the application as out of time, it having been filed more than seventy-five days after Notice No. 612 had been published in the Official Gazette. It held that the letter of 24 July 1973 to Mobil from the Municipality constituted sufficient notice. It further held that the acts and/or actions of the Municipality of Nicosia and the Republic of Cyprus as regards the expropriation of 2060 square feet of the applicant’s land were not executory administrative acts, and thus could not be annulled by virtue of Article 146 of the Constitution. It concluded that the street-widening scheme did not amount to a deprivation of property but only to a restriction on property having regard to the total surface area of the property and the affected land. 27. On 9 March 1993, the applicant filed an appeal on points of law with the Supreme Court. 28. On 5 September 1996 the parties were notified by the Registrar that the appeal was fixed for hearing on 12 December 1996. On that date the lawyer for the Municipality applied for an adjournment of the hearing, to which the applicant’s lawyer did not object. On 20 January 1997 the Supreme Court adjourned the hearing for want of time. On 3 April 1997 the hearing commenced but was not completed. On 15 May 1997 then on 1 July 1997 the hearing was further adjourned upon applications made by the lawyers of the applicant and the Municipality respectively. The hearing was completed on 10 September 1997 and judgment was reserved. 29. On 27 February 1998 the Supreme Court dismissed the appeal on a procedural point, without examining the merits of the case. It held that, as the applicant had transferred her property, she no longer had locus standi in respect of the land taken by the Municipality in 1978. 30. In neither of the procedures before the Supreme Court did the applicant ever contend that she had had no notice of the publication of the street-widening scheme that affected her property. 31. The relevant Articles of the Constitution provide as follows: “(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved. (2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article. (3) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court. (4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a commune for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only (a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; (b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; (c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.” “The legislative, executive and judicial authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient application of the provisions of this part.” “(1) The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a claim made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such an organ or authority or person. (2) Such a claim may be made by a person whose existing legitimate interest, which he has either as a person or by virtue of being a member of a community, is adversely and directly affected by such a decision or act or omission. (3) Such a claim shall be made within seventy-five days of the date when the decision or act was published or not published and, in case of an omission, when it came to the knowledge of the claimant.” 32. The relevant Sections of this law provide as follows: “In this Law alteration, addition or repair, when used with reference to buildings, means any structural alteration, addition or repair whereby any dimension of such building is altered ... building means any construction, whether of stone, concrete, mud, iron, wood or other material and includes any pit, foundation, wall, roof, chimney, veranda, balcony, cornice or projection or part of a building, or anything affixed thereto, or any wall, earth bank, fence, paling or other construction enclosing or delimiting or intended to enclose or delimit any land or space.” “No person shall (a) lay out or construct a street; (b) erect, or suffer or allow to be erected a building or demolish or reconstruct or make any alteration, addition or repair to any existing building, or suffer or allow any such demolition or construction or any such alteration, addition or repair to be made; (c) lay out or divide any land... into separate sites, (d) divide any building ... into separate tenements; (e) start to do any of works or matters herein-before set out without a permit first obtained from the appropriate authority as provided in subsection (2).” “(1) Notwithstanding any provision contained in this Law, a competent authority may, with the object of widening or straightening any street, prepare or have prepared plans showing the width of such a street and the direction that it shall take. (2) When any plans have been prepared under subsection (1), the competent authority shall deposit such plans in its office and shall also have a notice published in the Gazette and in one or more local newspapers and deposited in its office, open to inspection by the public at all reasonable times, for a period of seventy-five days from the date of the publication of the notice in the Gazette. (3) At the expiry of the period set out in subsection (2), the plans shall, subject to any decision of the Supreme Court after a claim is filed as provided for in section 18 of this law, become binding on the competent authority and on all persons affected thereby and no permit shall be issued by the authority save in accordance with such plans.” “(1) Where a permit is granted by a competent authority and such permit entails the new alignment of any street, in accordance with any plan which has become binding under section 12 of this law, any space between such alignment and the old alignment, which is left over when a permit is granted, shall become part of that street without the payment by the authority of any compensation whatsoever: (2) When a permit is granted under subsection (1), the District Lands Office shall, upon application by any interested party, cause the necessary amendments to the relevant registrations to be effected and the amended registration shall be held final notwithstanding that any certificate relating thereto remains unaltered.” 33. On 25 June 1976 the Supreme Court held that section 12 of the Streets and Buildings Regulation Law, Cap. 96, was not contrary to Article 23 of the Constitution, because it resulted only in the imposition of restrictions or limitations on the right of property and, particularly, on the use of such property for the purposes of building development, which were absolutely necessary in the interests of town and country planning within the meaning of Article 23 (3) of the Constitution (Neophytos Sofroniou and Others v. the Municipalty of Nicosia and Others judgment of 25 June 1975). 34. By a judgment of 23 May 1997 in the case of Kyprianides and Others v. the Municipality of Nicosia, the Supreme Court ruled that no claim for damages could be introduced when the disputed area was less than 15% of the original area. This judgment was subsequently confirmed in the case of the Attorney General v. F. Iacovides (Civil Appeal No. 9965, judgment of 29 September 1998). 35. As regards section 12(3), the Government affirm that the publication of such a scheme does not result in the acquisition by the competent authority of the part of the property affected thereby. It merely imposes restrictions and limitations upon future plans for the development of such property. If an application is made for the issue of a building permit in relation to such property, the permit must be in accordance with the plans of the streetwidening scheme. The provisions of section 13 come into play in the event of the issue of a building permit. Then the affected part of the property becomes part of the street. 36. The Government contend that it follows that in the present case the alleged expropriation of 2,060 square feet of the applicant’s land was not brought about by any administrative act or decision of the competent authority but by operation of law. The relevant statutory provisions operated automatically as soon as the building permit was issued, that is on 27 March 1978. The procedure that followed for the registration of the area was not an executory administrative act but merely an act of implementation because the said area had already become part of the street on the date on which the permit was issued. 37. The relevant sections of this Law provide as follows: “In the present Law ‘owner’ means the person entitled to be registered as the owner of any immovable property whether he is actually registered or not.” “No transfer or voluntary charge affecting any immovable property shall be made in the District Lands Office by any person unless he is the registered owner of such property ...” “The area of land covered by a registration of title to immovable property shall be the area of the plot to which the registration relates in any Government Survey Plan or any plan made to scale by the Director: Provided that where the registration cannot be related to any such plan, the area of land concerned shall be that to which the holder of the title may be entitled by adverse possession, purchase or inheritance.” “From and after the date of the coming into operation of this Law, every registration made and every certificate issued in connection with any transfer of land or building, or any devolution thereof by inheritance, shall be deemed to include all immovable property connected therewith to which the transferor or deceased was entitled.” 38. Section 4 of this law provides as follows: “Where any property is required to be compulsorily acquired for the purpose of a public benefit, the acquiring authority shall cause a notice of the intended acquisition in the form set out in the Schedule hereto ... to be published in the official Gazette of the Republic, containing a description of the property intended to be acquired, stating clearly the purpose for which it is required and the reasons for the acquisition, and calling upon any person interested in such property to submit to such authority within a specified time, being not less than two weeks from the date of the publication thereof, any objection which he may wish to raise to such acquisition ...” 39. The relevant regulations provide as follows: “(a) Judgments are delivered as soon as possible after the end of the proceedings and cannot be reserved for a period longer than six months. (b) If the Court fails to comply with the provisions of sub-paragraph (a), any concerned party may apply to the Supreme Court according to Regulation 5.” “If a decision which has been reserved ... [or] continues to be reserved for a period which exceeds nine months, the case is ipso jure fixed before the Supreme Court for the delivery of the order which is necessary in the circumstances, pursuant to Regulation 5 of the Regulations.” “In considering the application lodged according to Regulation 3, the Supreme Court may ... (b) make an order for the issue of the reserved judgment by a specific date and, in case of non-compliance, order a re-hearing by another court.” 40. Regulation 5(1) provides as follows: “The respondent may within twenty-one days from the service of the application, file with the registry and serve at the applicant’s address for service an opposition thereto ...”
| 1
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train
|
001-84971
|
ENG
|
BGR
|
CHAMBER
| 2,008
|
CASE OF KOSTADINOV v. BULGARIA
| 3
|
Violations of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award
|
Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
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7. On 18 January 1999 a preliminary investigation was opened against the applicant for robbery. On the same day, the applicant was charged with the offence and remanded in custody upon a decision of an investigator which was confirmed by the public prosecutor's office. It was alleged that the applicant, together with another individual, had robbed an individual of 17,480,000 old Bulgarian levs (BGL; approximately 8,964 euros (EUR)) and in the process had used force and rendered the victim unconscious. In ordering that the applicant be remanded in custody the investigator referred to, inter alia, the personality of the detainee, the gravity of the offence and, in general terms, the likelihood that he might abscond or re-offend. 8. The applicant filed an application for release on 27 January 1999, which was dismissed by the Pazardzhik District Court on 3 February 1999. The court found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, and that it was likely that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence warranting an exception to the requirement of mandatory detention was found to exist. 9. On 1 March 1999 the applicant filed another application for release arguing, inter alia, that in the course of the preliminary investigation it had been established that the amount which he had allegedly taken from the victim had been only BGL 5,000,000 (approximately EUR 2,564) because the latter had been robbed on more than one occasion on the day in question. 10. The applicant's application for release was dismissed by the District Court on 15 March 1999, which found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, that he might obstruct the investigation and that due to his lack of income he was likely to re-offend. In conclusion, no evidence warranting an exception to the requirement of mandatory detention was found to exist. 11. On 29 March 1999 the applicant filed his third application for release claiming, inter alia, that there was no evidence that he would abscond, re-offend or obstruct the investigation, that he suffered from jaundice and that his health was deteriorating as a result of his detention. 12. The applicant's application for release was dismissed by the District Court on 23 April 1999, which found, inter alia, that the applicant had been charged with a serious intentional offence, which warranted mandatory detention, that he was in good health and that there were indications that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence was established to exist warranting an exception to the requirement of mandatory detention. 13. The applicant contended that the charges against him were amended on 9 June 1999, which the Government did not challenge. 14. The preliminary investigation against the applicant was partially terminated on 30 June 1999. The only outstanding charge against him concerned common robbery of BGL 17,480,000 (approximately EUR 8,964). 15. The applicant filed his fourth application for release on 1 July 1999, which was examined by the District Court on 27 July 1999. The court found in favour of the applicant and released him on bail of 200 new Bulgarian levs (approximately EUR 102). It found, inter alia, that the applicant had no criminal record and had good character references, and that the preliminary investigation had already been completed. 16. The applicant was released on the same day, 27 July 1999. 17. The preliminary investigation against the applicant was further partially terminated on 8 October 1999 as a result of its findings pertaining to the amount and currency of the stolen money. The only outstanding charge against the applicant concerned common robbery of 5,000 German marks (approximately EUR 2,564). 18. An indictment against the applicant was filed with the District Court on an undetermined date. 19. In a judgment of an unspecified date the District Court acquitted the applicant. That judgment was subsequently upheld, also on an unspecified date, by the Pazardzhik Regional Court. 20. Between 18 January and 1 July 1999 the applicant was detained at the Pazardzhik Regional Investigation Service detention facility. From 1 July to 27 July 1999 he was detained at the Pazardzhik Prison. 21. The applicant contended, in respect of both detention facilities, that there had been (a) insufficient oxygen in the cells; (b) inadequate hygiene, the use of a bucket for the sanitary needs of the detainees and the presence of parasites (fleas and wood worms), skin infections (scabies) and rodents (mice and rats); (c) insufficient natural light; (d) no special recreational area; (e) unhealthy food; (f) no access to literature, newspapers, magazines, radio or television; (g) no possibility for the applicant to meet with his attorney in private at his initiative; and (h) no possibility to maintain active correspondence. 22. The applicant's contentions in respect of the conditions of detention at the above facilities are corroborated by the signed declarations of two other detainees, Mr D. Alexov and Mr R. Dobrev. 23. 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)). 24. On the basis of the relevant law before 1 January 2000, when ruling on applications for release of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004). 25. The State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”: renamed in 2006) provided at the relevant time that the State was 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). 26. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004). 27. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public. 28. The Pazardzhik Regional Investigation Service detention facility and the Pazardzhik Prison were visited in 1995. 29. The CPT found that most, albeit not all, of the investigation service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained. 30. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided. 31. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited. There was no radio or television. 32. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the investigation service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances. 33. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency. 34. The CPT established that the Pazardzhik Regional Investigation Service detention facility had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell. 35. Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other investigation service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed. 36. In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities. 37. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements. 38. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and outofcell activities. In some places, the situation had even deteriorated. 39. In the Plovdiv Regional Investigation Service detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”. 40. During the 2002 visit some improvements were noted in the country's investigation service detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day. 41. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.
| 1
|
train
|
001-77831
|
ENG
|
AUT
|
CHAMBER
| 2,006
|
CASE OF STANDARD VERLAGS GMBH AND KRAWAGNA-PFEIFER v. AUSTRIA
| 3
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Violation of Art. 10;Not necessary to examine Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
4. The first applicant is the owner of the daily newspaper “der Standard”, the second applicant was at the material time the chief editor of its internal politics section. 5. In the issue of “der Standard” of 9 October 1998 the second applicant published an article about the Austrian Freedom Party (Freiheitliche Partei Österreichs, “the FPÖ”) in its regular section “commentary”. So far as material, it read as follows: “Sacrifice of the decent The FPÖ is becoming ever truer to itself and many people are developing an increasingly similar image of it. For any organisation, whether a movement, party or whatever, is moulded by those at the top – how they interact with one another, which people they choose, how they cope with crises. All of this rubs off and has its effects. In the case of the FPÖ leader Jörg Haider this means: people are useful idiots, you can entice them with fine words, appeal to their nobler principles and, indeed, use them as long as they are of service to your own interests. Dealings within the FPÖ are correspondingly cunning. Haider has never even been soft towards his closest friends and backers and has dropped them as soon as they no longer fitted in with his plans. Friedrich Peter, Mario Ferrari-Brunnenfeld and Krimhild Trattnig are all examples. Others, such as Walter Meischberger or Gernot Rumpold, are allowed all kinds of liberties because they know too much. They have not been damaged either by convictions for tax evasion or by any other slip-ups. The MP Hermann Mentil was not excluded from the FPÖ on that account and was not scorned by his former colleagues because proceedings had been instituted against him for fraud. That is of little consequence to Jörg Haider, especially as he would otherwise have to bar himself from the FPÖ. After all, Haider was convicted in criminal proceedings at first instance because he had ruined a person’s good reputation and prospects for the future. A conviction, in any event, is of a different order from the institution of proceedings. Mentil was in fact dropped because in the Rosenstingl case Haider needs as many sacrificial victims as possible, to show to the public as and when required.” 6. The article alluded to Mr Haider’s conviction of 1 October 1998 by the Vienna Regional Criminal Court, which had found him guilty of attempted defamation of a university professor, D., in that he and his then lawyer Mr B., who had at the material time become Minister of Justice, had prepared a video-taped statement for the purpose of having it broadcast by the Austrian Broadcasting Corporation which contained defamatory statements about D. The broadcast had been refused, after a number of TV journalists and other staff of the Broadcasting Corporation had seen the video-tape. 7. This background was not mentioned in the above article but “der Standard” had reported on Mr Haider’s conviction in its issue of 2 October 1998. It read as follows: “Criminal court convicts Haider Lawyer Böhmdorfer also convicted of defamation The FPÖ federal party leader, Jörg Haider, and his lawyer, Dieter Böhmdorfer, were convicted of attempted defamation on Thursday and fined 167,400 schillings and 257,400 schillings respectively. The convictions relate to their ongoing six-year legal dispute with D. [full name], an Innsbruck-based expert in financial law, who was thwarted in his bid to become President of the Audit Office when Mr Haider embroiled him in a motorway-building scandal. Mr Haider had repeatedly been asked to withdraw his allegations in the course of civil proceedings over the past few years. Since no such action was taken, he and his lawyer have now been convicted at first instance by a criminal court. Both have appealed. In 1992 Mr Haider blocked Mr D.’s candidacy for the post of President of the Audit Office by accusing him of having been involved in a major scandal of the time concerning the building of the Pyhrn motorway. Mr D. lodged a complaint and obtained an order from the Supreme Court requiring Mr Haider to withdraw his accusations in a television broadcast. But according to Thursday’s judgment, the videotape prepared for that purpose once again contained defamatory accusations. As the tape was not broadcast, however, the court ruled that the offence should be classified merely as attempted defamation.” 8. Mr Haider brought two sets of proceedings against the applicants as regards the statement “After all, Haider was convicted in criminal proceedings at first instance because he had ruined a person’s good reputation and prospects for the future” contained in the issue of “der Standard” of 9 October 1998. 9. On 14 October 1998 Mr Haider brought private prosecution proceedings for defamation under the Media Act (Mediengesetz). 10. On 23 November 1999 the applicants made submissions to the St. Pölten Regional Court (Landesgericht) drawing its attention to the Vienna Court of Appeal’s judgment of 14 May 1999 in the preliminary injunction proceedings (see paragraphs 22-23), which had found that Mr Haider’s interest in the protection of his reputation was outweighed by the public interest in receiving the information at issue. 11. On 24 March 2000 the St. Pölten Regional Court ordered the applicant company to pay compensation of 20,000 Austrian schillings (ATS) to Mr Haider and to publish the judgment. 12. Referring to Section 6 of the Media Act, the Regional Court found that the statement at issue fulfilled the elements of defamation (üble Nachrede) under Article 111 of the Criminal Code. Having regard to the judgment against Mr Haider of 1 October 1998, the applicant company had failed to prove the truth of its statement that Mr Haider had ruined D.’s good reputation and his prospects for the future. Although the distinction between an attempted and a completed offence was, as a general rule, not relevant for proving the truth of a statement concerning a person’s conviction, the applicant had claimed that the defamation committed by Mr Haider had had the effect of ruining D.’s good reputation and his prospects for the future. However, as Mr Haider had only been convicted of attempted defamation, D. had not suffered any actual damage and the judgment did not establish any causal link between Mr Haider’s offence and the alleged negative consequences for D. 13. The Regional Court acquitted the second applicant of the charge of defamation under Article 111 of the Criminal Code, finding that she had been present in court on 1 October 1998, when the judgment against Mr Haider had been read out and had gained the impression that he had ruined D.’s good reputation and future perspectives. Consequently, she had not acted with criminal intent. 14. The applicant company and Mr Haider appealed. The applicant company contested in particular the Regional Court’s view that it had failed to establish the truth of its allegation. It argued that the distinction between a conviction for the completed offence and a conviction for the attempted offence was contrary to established case-law under the Media Act. Further, it complained that the Regional Court had failed to deal with its requests for the taking of evidence. 15. On 10 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company’s appeal. Upon Mr Haider’s appeal, it convicted the second applicant of defamation und ordered her to pay a fine of ATS 15,000 (15 days’ imprisonment in default) suspended on probation. 16. In the Court of Appeal’s view the second applicant, being an experienced journalist must have known the impression which her statement made on the reader. She had claimed to have acted in good faith, however under Article 111 (3) of the Criminal Code, the defence of good faith was not available where the defamatory statement at issue had been published in the media. The court repeated that the truth of the impugned statement had not been established. The second applicant had inappropriately linked Mr Haiders’s conviction with events relating to D.’s candidature for President of the Audit Office dating years back. 17. Finally, the appellate court noted that the Regional Court, without giving reasons, had dismissed the applicant’s requests for taking of evidence, namely to hear professor D. and a number of staff members of the Austrian Broadcasting Corporation as witnesses in order to show that D.’s reputation had been ruined, as the latter had actually seen the video tape containing defamatory statements about him. The appellate Court found, firstly, that the requests at issue were irrelevant, as the article had not claimed that D.’s reputation and perspectives for the future had been ruined with regard to staff members of the Austrian Broadcasting Corporation. Secondly, it noted that the applicants had not repeated their request in due form after the hearing before the Regional Court had been postponed once. 18. The judgment was served on the applicants’ counsel on 23 November 2001. 19. On 22 January 1999 Mr Haider filed an action under 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and a request for a preliminary injunction. 20. On 6 March 1999 the St. Pölten Regional Court issued a preliminary injunction ordering the applicants to refrain from stating that Mr Haider had been convicted since he had ruined a person’s good reputation and perspectives for the future. 21. The Regional Court had regard to the content of the article as a whole and considered that, against this background, the reference to Mr Haider’s conviction was not aimed at informing about the judgment against him, but was used to criticise his character. The main thrust of the article was not a political criticism of the FPÖ and its leadership but an attack on Mr Haider with the aim of disparaging him. Thus, the court concluded that the boundaries of acceptable criticism had been transgressed. 22. On 14 May 1999 the Vienna Court of Appeal allowed the applicant’s appeal and dismissed Mr Haider’s request for a preliminary injunction. 23. Having regard to the judgment of 1 October 1998 against Mr Haider, the court found that the incriminated sentence contained a true statement of facts. The offence of defamation was defined as accusing another of behaviour such as to make him contemptible and lower him in public esteem. It could therefore be equated with ruining a person’s good reputation and perspectives for the future, in particular in a case like the present one where D. had been a candidate for a public office. The dissemination of true statements of fact could only violate the interests of the person concerned if there was no prevailing public interest in receiving the information. However, information about the personal credibility of a politician, demonstrated by his conviction for defamation, was in the public interest, in particular in pre-election times when the general public gathered information about the different parties and their representatives. 24. On 29 September 1999 the Supreme Court rejected Mr Haider’s extraordinary appeal on points of law, finding that it did not raise an important legal issue. 25. In the main proceedings the St. Pölten Regional Court gave judgment on 28 July 2002, ordering the applicants to refrain from the statement at issue, to withdraw it and to publish its judgment. 26. It observed that the notion of defamation in Article 1330 of the Civil Code had to be construed in the light of the criteria established by criminal law. The civil courts were not formally bound by a judgment of the criminal courts. However, it was the Supreme Court’s established case-law that a person convicted of a criminal offence could not argue in any subsequent proceedings that he had not committed that offence. The Regional Court therefore considered itself bound by the Vienna Court of Appeal’s final judgment of 10 October 2001 in the proceedings under the Media Act (see paragraphs 15-17). 27. On 12 February 2003 the Vienna Court of Appeal dismissed the applicants’ appeal. 28. It confirmed the first instance court’s view as regards the binding effect of the applicants’ conviction under Section 6 of the Media Act and added that the weighing of interests between the protection of Mr Haider’s good reputation on the one hand and the public interest in receiving the information was inherent in the conviction and could not be assessed anew in the civil proceedings. 29. On 26 June 2003 the Supreme Court rejected the applicants’ extraordinary appeal on points of law. 30. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows: “1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... 3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 31. Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim for compensation. 2. The same applies if anyone is disseminating facts, which jeopardize another person’s reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...” 32. It is the Supreme Court’s constant case-law that a person who has been convicted in criminal proceedings cannot argue in subsequent civil proceedings that he has not committed the offence at issue (lead-case 1 Ob 612/95, 17 October 1995, SZ 68/195). The Supreme Court has also held that a judgment under Section 6 of the Media Act has this binding effect in subsequent civil proceedings (6 Ob 105/97b, 16 October 1997).
| 1
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train
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001-22712
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ENG
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NLD
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ADMISSIBILITY
| 2,002
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TEKDEMIR v. THE NETHERLANDS
| 4
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Inadmissible
| null |
The applicant, Abdullah Tekdemir, is a Turkish national of Kurdish origin, who was born in 1949 and currently lives in the Netherlands. He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in The Hague. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 July 1995 the applicant left Turkey. He arrived in the Netherlands on 16 July 1995 where, on 18 July 1995, he applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 26 July 1995, assisted by an interpreter, he was interviewed by an official of the Ministry of Justice about the reasons for his asylum request. By letter of 8 August 1995, the applicant submitted his corrections and additional remarks to the record of this interview. The applicant stated that he had left his hometown for İstanbul on 10 March 1995. He had been apprehended and questioned by the authorities in 1991 on suspicion of having transported PKK members. He was released after having convinced the authorities of his innocence. He further stated that, on six occasions between August 1994 and March 1995, he had been apprehended and questioned by the authorities in relation to his son’s refusal to do military service, and that he had been beaten during interrogation. However, this had not been his reason for leaving. He had left because he was being sought by the authorities. He explained that, together with another person, he had owned a bus, and on two occasions - i.e. in February and March 1995 respectively - the PKK had forced him to transport PKK members. The PKK members he had been forced to transport in March 1995 had carried out a bomb attack on the Gayreteppe Anti-Terror Branch office. According to the applicant, the authorities were looking for him since he had transported PKK members in 1995. As he had already been suspected of a similar act in 1991, the applicant decided to flee. On 23 January 1996 the applicant filed an objection (bezwaarschrift) in which he complained that his request for asylum or a residence permit had not been determined speedily. On 23 January 1996 he submitted the grounds for his objection. On 23 February 1996 the State Secretary of Justice (Staatssecretaris van Justitie) accepted the applicant’s objection that his request for asylum or a residence permit had not been determined speedily, but rejected the applicant’s request. The State Secretary noted that the applicant had declared, inter alia, that together with another person, he had owned a bus and that on two occasions - i.e. in February and March 1995 respectively - the PKK had forced him to transport PKK members. Furthermore, between August 1994 and his departure from Turkey the applicant alleged that he had been questioned and beaten by Turkish officials on six occasions in relation to his son’s evasion of military service, that he did not belong to or sympathise with any prohibited organisation in Turkey and that he had not undertaken any activities against the Turkish authorities. The State Secretary held that the mere fact of belonging to the Kurdish minority in Turkey was an insufficient ground for granting asylum and that it had not appeared that the applicant had attracted the negative attention of the Turkish authorities. Moreover, as the applicant had stated that the reason for his departure from Turkey was not the fact that he had been questioned on six occasions about his son, but that he feared that he was wanted by the Turkish authorities for having transported PKK members, the State Secretary held that the applicant’s fear remained entirely unsubstantiated. The State Secretary further decided that the applicant was not to be allowed to remain in the Netherlands pending the examination of a possible objection against this decision. On 11 March 1996 the applicant filed an objection against the decision of 23 February 1996. On the same day, he filed a request with the President of the Hague Regional Court (arrondissementsrechtbank) for an injunction to suspend his expulsion pending the outcome of the proceedings on the objection. On 6 June 1996 the State Secretary reminded the applicant that he was not allowed to await the outcome of the objection proceedings in the Netherlands. The applicant’s request for an injunction was heard on 9 July 1996. The court’s examination of the request was deferred for an indefinite period, given that uncertainties had arisen with respect to the position of Turkish Kurds. The applicant’s objection against the decision of 23 February 1996 was rejected on 12 December 1996 by the State Secretary. The latter stated that the applicant remained eligible for expulsion. On 20 December 1996, the applicant filed an appeal with the Hague Regional Court sitting in Zwolle. The applicant further requested this court to issue an injunction against his expulsion pending the appeal proceedings. In its judgment of 9 March 1998, the Hague Regional Court in Zwolle rejected the applicant’s appeal and request for an injunction. It held, inter alia: “... There are no concrete indications that the Turkish authorities will persecute the <applicant> upon his return. It is true that, in 1991, he had been detained for two days on suspicion of having transported terrorists, but was able to convince the authorities of his innocence. He was later unconditionally released. It has not appeared nor has it been found established that he has encountered further problems in this connection. <The applicant> further states that since August 1994 he was questioned six times in relation to the refusal of his son Yılmaz to perform his military service and that on the last occasion on 6 March 1995 the authorities had given him one week to report on his son. He did not do so; nor did he await the consequences of his failure to do so since he left for İstanbul. In addition <the applicant> states that in February and March 1995 he had been forced to transport PKK fighters. During his stay in İstanbul, <the applicant> learned that in the meantime the authorities had become aware of this. His wife and children were questioned by the authorities because they were looking for <the applicant>. His children would have been ill-treated during those interrogations. Whatever may be the case, <the applicant> has not made out a plausible argument that he is in fact wanted by the Turkish authorities for his alleged activities. There is no concrete information about his alleged persecution. The letters of family members submitted by <the applicant> cannot serve as such. These letters cannot be regarded as emanating from an objective verifiable source. Noting the fact that the applicant has already been residing in the Netherlands for a certain period of time, he could be expected to have substantiated his alleged fear of persecution by way of documents or other means. He has not done so, and that seriously undermines the plausibility of his allegations. ... it has not been established that the applicant has attracted the negative attention of the Turkish authorities. ... This leads to the conclusion that <the applicant> has not made out a plausible case that he can claim with justification admission to the Netherlands as a refugee. ... From what has been considered in relation to the applicant’s request for asylum, it follows that ... in <the applicant’s> case no facts or circumstances have appeared which can be considered grounds on which it could be held that he runs a real risk, if forcibly expelled to Turkey, of being subjected to treatment contrary to Article 3 of the Convention or comparable provisions in other treaties; he is not eligible, accordingly, for a residence permit on those grounds.” On 7 April 1998 an order for the applicant’s expulsion was issued to the Aliens Police (vreemdelingenpolitie) in the applicant’s place of residence. The applicant’s opposition (verzet) against the judgment of 9 March 1998 was rejected on 1 July 1998 by the Hague Regional Court sitting in Zwolle. The applicant’s further request for an injunction against his expulsion pending the outcome of the opposition proceedings was rejected on 27 July 1998. On 7 September 1998 the applicant left his then place of residence, which was known to the immigration authorities, for an unknown destination. On 4 October 1998, after a police officer had reported a public order disturbance, the applicant was apprehended and detained so that his residence status could be checked. When it appeared that his asylum request had been rejected, the applicant was placed in aliens’ detention with a view to his expulsion. On 5 October 1998 the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. On the same day he filed an appeal with the Hague Regional Court against the decision to place him in aliens’ detention. On 9 October 1998 the applicant was interviewed by an official of the Ministry of Justice about the reasons for his second asylum request. On that occasion the applicant stated that he based his second request on the same grounds as those advanced in support of his first asylum request. On 14 October 1998 the Hague Regional Court rejected the applicant’s appeal against the decision to place him in aliens’ detention. It noted that the applicant’s second asylum request was lodged after he had been placed in aliens’ detention. The court held that prima facie the request did not appear to have much chance of success. Noting that the applicant did not hold either a valid residence permit or a valid proof of identity and that he did not have sufficient means of subsistence, the court ruled that the Netherlands authorities’ fears that the applicant would seek ways to prevent his expulsion could not be considered unfounded. It noted in this connection that his presence in the Netherlands was illegal and that he had removed himself from the control of the immigration authorities. The court concluded that his placement in aliens’ detention had been in accordance with the law. It further did not find it established that there were no prospects for the applicant’s expulsion within a reasonable time. Given that the applicant could not be expelled pending a determination by the State Secretary on the applicant’s second asylum request and that, according to the relevant statutory provision, this decision had to be taken within four weeks, the Regional Court held that in these circumstances it was not unreasonable to prolong the applicant’s placement in aliens’ detention until the decision had been taken. On 29 October 1998 the State Secretary rejected the applicant’s second request for asylum and ruled that the applicant was not allowed to await the outcome of a possible appeal in the Netherlands. On 30 October 1998 the applicant filed an appeal against this decision with the Hague Regional Court and requested this court to issue an injunction against his expulsion pending the examination of his appeal. In his submissions of 30 October 1998 the applicant mentioned that his cousin C.X. had been a vice-president of the political party HEP and had been murdered in 1994 by counter-guerrilla forces, that his other cousin B.X., who had played a leading role in politics, had also fled from Turkey. On 6 November 1998, the applicant filed a second appeal with the Hague Regional Court against the decision to place him in aliens’ detention. On 18 November 1998, the Hague Regional Court rejected this appeal. It held that, contrary to the applicant’s arguments, his second asylum request had no apparent chance of succeeding and there were therefore prospects that he would be expelled within a reasonable time. Assuming that the request for an injunction against the applicant’s expulsion would be examined diligently, the Regional Court considered that a continuation of the applicant’s placement in aliens’ detention could not be regarded as unlawful or unreasonable. On 22 January 1999 the applicant filed a third appeal with the Hague Regional Court against the decision to place him in aliens’ detention. On the same day, in the proceedings on a second asylum request lodged by A.X., a brother of B.X. and C.X. and to whom the applicant claimed to be related, the Hague Regional Court held that - in the light of new information submitted by A.X. about problems encountered in Turkey by the widow of his brother C.X. - the State Secretary could not have rejected A.X.’s second asylum request on the mere basis of a reference to the findings in A.X.’s first asylum proceedings. It considered that A.X. should be requested to substantiate his alleged family ties with C.X., who was a prominent leader of the HEP, and with C.X.’s other brother B.X., who had already been granted a residence permit in the Netherlands. Consequently, the Regional Court accepted A.X.’s appeal as well-founded and ordered the State Secretary to take a new decision on A.X.’s second asylum request. It further granted A.X.’s request for an injunction against his expulsion pending a new decision by the State Secretary. On 11 February 1999, the Hague Regional Court rejected the applicant’s third appeal against the decision to place him in aliens’ detention. It held that, contrary to the applicant’s arguments, his request for an injunction against his expulsion did not have a sufficient chance of succeeding. It therefore held that the State Secretary could consider that the applicant’s placement in aliens’ detention needed to be maintained. By letter of 16 February 1999 the Netherlands branch of Amnesty International requested the Immigration and Naturalisation Department of the Ministry of Justice to be given access to the applicant so as to conduct an examination of his physical condition and the specific circumstances of his case. Amnesty International further requested that the applicant should not be expelled during this examination. In this letter, Amnesty International expressed its concerns about the applicant’s situation in that he belonged to a politically active family, that his cousin - vice-president of the political party HEP which together with the DEP party had merged into the political party HADEP - had been murdered in Turkey, that two of the applicant’s sons had refused to do military service and that his son Mahır had been admitted to hospital in Turkey with a broken back. On 12 March 1999 the Netherlands Branch of Amnesty International repeated its request for access to the applicant. On 10 March 1999, following a hearing held on 5 February 1999, the Hague Regional Court sitting in Zwolle rejected the applicant’ appeal against the decision of 29 October 1998 as well as his request for an injunction against his expulsion. It ruled that the applicant’s second request for asylum was not based on any new facts or circumstances, and recalled its decision of 9 March 1998 in which it had held that it had not been established that the applicant was wanted by the Turkish authorities. Insofar as the applicant had argued that the Regional Court, on 9 March 1995, had unjustly held that it was for the applicant to substantiate his alleged fear of persecution, the Regional Court considered that a new asylum procedure was not meant to be a disguised form of appeal against a recent decision having obtained the force of res iudicata. According to the court, the applicant’s submissions on this point did not concern facts or circumstances that could not have been raised in the course of the proceedings on his first asylum request. This was not altered by the applicant’s allegation that this failing was caused by inadequate assistance by various legal aid advisers. Insofar as the applicant could be considered as relying on the ruling of 22 January 1999 in the case of A.X., the Regional Court noted that in that decision A.X. had been ordered to prove his alleged family tie with C.X. The court considered that in the present case there was no reason to issue such an order as the applicant had never invoked a similar family tie in his first asylum request, insofar as a family tie with C.X. could be assumed at the outset. The Regional Court agreed with the State Secretary that it was strange that the applicant, who claimed to have travelled with A.X. to the Netherlands, had not relied on his kinship in the proceedings on his first asylum request. The Hague Regional Court found nothing in the applicant’s submissions that could lead to a different finding than the one reached on his first asylum request. It was noted in this connection that, during his first interview, the applicant had stated that he was not involved in politics, that he had been forced on two occasions to transport PKK supporters and that it had appeared that he had little knowledge about the Kurdish flag and anthem. As the applicant had based his second asylum request on grosso modo the same grounds as his first request, the Regional Court concluded that the appeal was ill-founded. The Regional Court did not find it established that the applicant, if expelled to Turkey, would face a real risk of treatment contrary to Article 3 of the Convention. On 15 March 1999 the applicant filed a third request for asylum. On the same day, he filed a fourth appeal against the decision to place him in aliens’ detention with a view to his expulsion. This appeal was rejected by the Hague Regional Court on 24 March 1999, holding inter alia; “The Regional Court is of the opinion that the submissions made on behalf of the alien cannot lead to the finding that the placement in aliens’ detention must now be considered unlawful. It is established that the Hague Regional Court sitting in Zwolle, by decision of 10 March 1999, has declared the applicant’s appeal ill-founded and that the second asylum proceedings of the alien have thereby ended. In view of the foregoing, the alien is, in the court’s opinion, eligible for expulsion. This is not altered by the fact that the alien has filed a third asylum request as it has not been established that this request would be automatically granted. The Regional Court further finds that the decisions of Amnesty International and of the European Court <of Human Rights> concerning cousins of the alien in themselves do not imply that the alien is currently not eligible for expulsion, or that after a further review of his third asylum request would not be eligible for expulsion. Also, the intention to request the European Court for an injunction against the alien’s expulsion does not imply that the prospects of expulsion should now be regarded as absent. Insofar as new asylum proceedings are running, a decision must follow within 28 days. It has not appeared that the <State Secretary> has not been diligent as to the procedure for expediting the investigation. Account has been taken of the fact that, in connection with the alien’s second asylum request, the <State Secretary> could not present the alien earlier <to the Turkish authorities> but will now do so on 25 March 1999. The <State Secretary> cannot be held responsible insofar as this cannot take place in connection with the alien’s third asylum request. As there is no indication that the applicant’s presentation to the Turkish authorities is chanceless, the Regional Court is of the opinion that this investigation needs to be awaited. It has further not been established that the alien has any mental/psychic problems such as would warrant the lifting of his placement in aliens’ detention. The Regional Court further notes that the applicant’s placement has at this stage not exceeded six months. The argument raised on this point therefore lacks foundation. It has not been established that the application or execution of the placement in aliens’ detention in respect of the alien is in violation of the Aliens Act (Vreemdelingenwet) or, after balancing all interests involved, in all reasonableness must be considered unjustified.” On 23 March 1999 the applicant was medically examined by an Amnesty International doctor. In the course of this examination, the applicant stated that, as a result of having been tortured in detention in 1994 and/or 1995, his feet were injured to such an extent that, after his release, he required medical treatment. He stated that he had received this treatment from Dr Halit Riza in the Bingöl State Hospital. On 24 March 1999 the Netherlands branch of Amnesty International informed the Immigration and Naturalisation Department of the Ministry of Justice that, according to the findings of its doctor, the applicant had been subjected to torture. On 25 March 1999 with the assistance of an interpreter, the applicant was interviewed by an official of the Ministry of Justice on the grounds given for his third request for asylum. On 12 April 1999 the State Secretary rejected the applicant’s third asylum request. The applicant was further informed that he was not allowed to remain in the Netherlands pending the outcome of a possible appeal. By letter of 13 April 1999, the Netherlands branch of Amnesty International informed the Immigration and Naturalisation Department of the Ministry of Justice that it considered that the applicant’s case had been insufficiently examined and, for that reason, it could not be excluded that the applicant, if expelled to Turkey, would be exposed to a real risk of human rights violations contrary to the 1951 Geneva Convention Relating to the Status of Refugees. It further transmitted a copy of the provisional report dated 7 April 1999 of the doctor who had examined the applicant on 23 March 1999. On 14 April 1999 the applicant filed an appeal with the Aliens Division of the Hague Regional Court against the decision of 12 April 1999. He further requested the Regional Court for an injunction against his expulsion pending the outcome of the appeal proceedings. On 28 April 1999 the applicant filed a fifth appeal with the Hague Regional Court against the decision to place him in aliens’ detention. On 25 May 1999 the Netherlands branch of Amnesty International transmitted the report dated 9 May 1999 on the applicant’s medical examination of 23 March 1999 to the Immigration and Naturalisation Department of the Ministry of Justice. According to this report, the applicant’s account of ill-treatment was consistent and understandable and the doctor’s findings on the basis of the medical examination were consistent with long-term effects of the acts of torture described by the applicant. On 28 May 1999 the Hague Regional Court rejected the fifth appeal filed by the applicant against the decision to place him in aliens’ detention with a view to his expulsion. It held, inter alia: “The Regional Court considers as regards the issue of diligence <as to the applicant’s expulsion> that the alien could not be expelled earlier on grounds of the requests filed by him for admission as a refugee and <requests for an> for the issue of an injunction against his expulsion. It is true that the <applicant’s> placement in aliens’ detention has now exceeded a period of six months. However, the Regional Court is of the opinion that the applicant is partly to blame for this long duration. Indeed, a third request for asylum has been filed in the meantime and as long as no decision has been taken on that request, no acts can be undertaken aimed at the alien’s expulsion. In the court’s opinion, the <State Secretary> cannot be blamed for the fact that these matters a long time. Noting the contents of the case-file and the <State Secretary’s> submissions during the hearing, the Regional Court finds that in casu there are sufficient prospects for the applicant’s expulsion. Account has been taken in particular of the fact that the alien was presented to the Turkish authorities on 25 March 1999 and that the latter have taken the application for an laissez-passer into consideration. Therefore, at this juncture the Regional Court sees no reason for finding that the placement in aliens’ detention, in all reasonableness, can no longer be regarded as justified.” On 24 June 1999 the applicant filed a sixth appeal against the decision to place him in aliens’ detention. This appeal was rejected by the Hague Regional Court on 8 July 1999. By letter of 8 July 1999 the applicant’s lawyer requested the Hague Regional Court to adjourn the hearing on the applicant’s appeal and injunction request filed on 14 April 1999 scheduled for 9 July 2000, as for various reasons set out in her letter she had not yet had an adequate opportunity to prepare satisfactorily the case with the applicant On 27 July 1999 the State Secretary requested the Hague Regional Court to suspend the examination of appeals, including requests for injunctions against expulsions filed by asylum seekers of Kurdish origin, as it had appeared that two such asylum seekers had encountered serious problems after they had been expelled to Turkey. On 17 August 1999 the applicant filed a seventh appeal against the decision to place him in aliens’ detention. On 31 August 1999 the State Secretary informed the Dutch Parliament that, given reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the Hague Regional Court heard the applicant’s appeal of 17 August 1999, declared it founded and lifted the detention order. The applicant was consequently released from aliens’ detention. On 1 October 1999, following a hearing held on 9 July 1999, the Acting President of the Hague Regional Court rejected the applicant’s appeal against the decision of 12 April 1999 as well as the applicant’s request for an injunction against his expulsion. The President held: “6. It must be assumed at the outset that the situation in Turkey is not such that aliens coming from that country can be considered in general and automatically as refugees. The applicant must therefore make out a plausible case that there exists facts and circumstances directly relating to him personally that justify his fear of persecution within the meaning of refugee law. The applicant has not succeeded in doing so. In agreement with the <State Secretary> the President finds that no credence can be attached to the alleged acts of torture. These acts were raised by the applicant for the first time in the context of his third asylum request as an essential basis for that request, whereas it remains unexplained why he scarcely devoted any attention to this <element> during his interviews held on 26 July 1995 and 9 October 1998. Also, in the context of his opposition to the decision of the Regional Court of 9 March 1998 he entirely passed over the acts of torture which he now puts forward. The medical reports submitted do not enhance the credibility of his allegations. The note of the medical adviser contains only a reproduction of the subjective (not objectively verifiable) account of the applicant, and his conclusion that the scars “could fit” the alleged acts of torture does not provide a decisive answer. The question to what extent the applicant’s account is comparable to that of his two cousins has already been examined in the decision of this court of 10 March 1999. Unlike the cited cousins, the applicant has not or hardly been politically active, so that no reliance on the principle of equality can be placed. It has also not been established that the applicant would have become involved in any way with the political acts of his cousins. 7. Having regard to the above, the President finds that the <State Secretary> in the challenged decision has justly maintained his refusal to grant the applicant asylum. 8. Pursuant to Article 3 of the Convention it must be examined whether it is plausible that the applicant will face a real risk of being subjected to torture, or to inhuman or degrading treatment or punishment. Having regard to consideration 6. it has not been established that the forced return of the applicant to Turkey would result in a violation of Article 3 of the Convention. 9. Neither have compelling reasons of a humanitarian nature appeared on grounds of which the <State Secretary> could in all reasonableness not deny a residence permit.” On 16 December 1999 the State Secretary informed the Dutch Parliament that, given the results of an investigation into the facts forming the basis for the temporary suspension of expulsion of Turkish nationals of Kurdish origin, the suspension of expulsion of persons belonging to this category had been lifted again. The admission, residence and expulsion of aliens were regulated at the material time by the 1994 Aliens Act (Vreemdelingenwet), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001 the 2000 Aliens Act entered into force, replacing the 1994 Aliens Act. The Netherlands authorities pursue a restrictive immigration policy in view of the high population density in the Netherlands and the problems to which this gives rise. Admission is only granted on the basis of treaty obligations such as under the Geneva Convention Relating to the Status of Refugees of 28 July 1951, if the individual’s presence serves an essential Dutch interest or if there exist compelling reasons of a humanitarian nature. This policy is laid down, inter alia, in the 1994 Aliens Act Implementation Guidelines, which is a body of directives drawn up and published by the Ministry of Justice. Under Article 15 of the 1994 Aliens Act, aliens may be admitted as refugees if they come from a country where they have well-founded reasons to fear persecution on the grounds of their religious, ideological or political convictions or their nationality, or on grounds of membership of a particular racial or social group. In Dutch law, the term “refugee” is interpreted on the basis of the categories of persons referred to in Article 1 of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the Protocol of 31 January 1967. Pursuant to Article 32 § 1 (a) of the 1994 Aliens Act, an alien who has applied for admission as a refugee cannot be expelled pending proceedings on an objection filed against a first negative decision, unless it is clear beyond reasonable doubt that there is no danger of persecution within the meaning of Article 15 of the 1994 Aliens Act. If the Minister has decided that expulsion should not be suspended pending the objection proceedings, expulsion may nevertheless by prevented by obtaining an interim measure to this effect from the President of the Hague Regional Court. An appeal against a rejection of an objection against a refusal to grant admission as a refugee may be filed with the Hague Regional Court. No further appeal lies against the final decision taken by this court. An alien who has been granted entry to the Netherlands but is not or is no longer eligible for admission is obliged to leave the country pursuant to Article 15d § 2 of the 1994 Aliens Act. If he or she does not leave voluntarily, expulsion may follow (Article 22 § 1 of the 1994 Aliens Act). Article 26 of the 1994 Aliens Act, insofar as relevant, provides: “1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention: a. alien whose expulsion has been ordered; b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered; c. aliens who are not entitled to residence in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee. 2. Placement in aliens’ detention will not be ordered when - and will be terminated as soon as - the alien indicates that he wants to leave the Netherlands and has the possibility to do so. 3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.” An alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before the Hague Regional Court. If this court concludes that there are no prospects of expulsion within a reasonable time, it may order that the measure of placement in aliens’ detention be lifted. According to Dutch case-law, the interest of an alien in being released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it may be the case that this point in time is attained at an earlier or later point in time than the six months period have passed. It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control. Article 34a of the 1994 Aliens Act provides as follows: “1. A measure taken under this Act which has the effect of a limitation on freedom of movement or deprivation of liberty shall, for the purposes of Article 8:1 § 1 of the Administrative Law Act, be considered as being on a par with a decision. 2. The court shall examine a first appeal against a decision having the effect of a deprivation of liberty within two weeks, either during the preliminary examination under Article 8:44 § 1 of the Administrative Law Act or during a court hearing. 3. If the appeal is directed against a decision referred to in the second paragraph, the court shall determine the time of the trial proceedings without delay and in any event not later than two weeks after the date of transmission of the appeal. In deviation from Article 8:42 § 2 of the Administrative Law Act, the delay referred to in that Article cannot be prolonged. 4. The Regional Court hands down its written decision, unless immediately at the court hearing a decision is handed down orally, within two weeks following the close of the investigation <at the hearing>. By way of deviation of Article 8:66, second paragraph, of the General Administrative Law Act, the delay referred to in that provision cannot be extended. 5. Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved cannot in all reasonableness be regarded as justified, it declares the appeal <filed> under this provision founded and orders that the measure be lifted or a change effected to the manner of its execution.” Although no appeal lies against a decision of the Regional Court on the lawfulness of detention under the Aliens Act, an appeal to the Court of Appeal (gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in unlawful detention for expulsion purposes. Furthermore, appeals have been admitted in cases where it was alleged that, in the proceedings before the Regional Court, fundamental legal principles (fundamentele rechtsbeginselen) have been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127; The Hague Court of Appeal, 7 April 2000, Jurisprudentie Bestuursrecht 2000, nrs. 147; and The Hague Court of Appeal, 18 May 2000, Jurisprudentie Bestuursrecht 2000, nr. 142). There is no time-limit for filing an appeal against an order for placement in aliens’ detention and in principle a person placed in aliens’ detention can file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point. Pursuant to Article 86 of the Aliens Decree, the Minister of Justice must send a notification to the competent court when an alien has spent four weeks in aliens’ detention where the person concerned has not himself filed an appeal against this decision. This notification is considered on a par with a first appeal within the meaning of Article 34a § 2 of the 1994 Aliens Act.
| 0
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train
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001-77910
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ENG
|
HRV
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ADMISSIBILITY
| 2,006
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SARATLIC v. CROATIA
| 4
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Inadmissible
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Christos Rozakis
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The applicant, Mr Dušan Saratlić, is a Croatian national, who was born in 1950 and lives in Belanovica, Serbia. He was represented before the Court by Mr M. Mihočević, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned a house in Okučani, where he lived until May 1995, when he left Croatia, due to military operations in the area. On 28 November 1995, in line with the applicable legislation, the Croatian authorities gave the applicant’s house for temporary use to P.R. and his family, refugees from Bosnia and Herzegovina. On 20 October 2000 the applicant filed a request for repossession of his property with the competent administrative authority. On 1 March 2001 the Okučani Housing Commission (Stambena komisija Okučani) (“the Housing Commission”) set aside its decision of 28 November 1995, establishing the right of the applicant to repossess his house. In its decision, the Housing Commission established that P.R. enjoyed a right to stay in the applicant’s house until he was provided with adequate housing by the State. On 4 December 2002 the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo) (“the Ministry”) issued a decision allowing the applicant to repossess his house. On the same day the Ministry invited the applicant to contact its competent regional office in order to repossess his house and/or receive compensation for the prolonged inability to use it, in accordance with the relevant legislation. On 24 February 2002 the applicant instituted civil proceedings before the Nova Gradiška Municipal Court (Općinski sud u Novoj Gradiški) requesting the court to order P.R. and his family to vacate his house. On 14 March 2003 the Municipal Court issued a judgment ordering P.R. to vacate the house. The defendant appealed against the judgment. On 13 May 2003 the Ministry sent a letter to the applicant with a proposal to settle the case in respect of the damage suffered by the applicant. The Government submitted that on 10 June 2003 the applicant’s representative, Ms K.V., a lawyer practicing in Vukovar, Croatia, signed a sale contract in respect of the applicant’s house with the Agency for Real Property Transactions (Agencija za pravni promet i posredovnaje nekretninama, hereinafter “the Agency”). She received the settled price and also stated that the applicant had renounced all claims for damages in respect of the use of his house. On 14 August 2003 the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu) upheld the first instance judgment of 14 March 2003. On 23 September 2003 the applicant filed an application with the Nova Gradiška Municipal Court seeking enforcement of the judgment adopted by the same court and ordering the eviction of P.R. The enforcement order was issued on 9 October 2003. However, on 27 October 2003 the applicant’s representative, Ms M.T., a lawyer practicing in Slavonski Brod, withdrew the application for an enforcement order stating that the applicant had no further interest in pursuing these proceedings and therefore sought that the proceedings be terminated. The applicant states that the above sale contract of 10 June 2003 was signed without his knowledge or consent. However, he did not dispute that he himself had hired Ms K.V. as his legal representative. On 13 May 2005 the Agency filed a criminal complaint with the Osijek Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Osijeku) stating that the power of attorney presented by Ms K.V. was falsified. On an unspecified date the applicant left Croatia allegedly because he had received death threats. He moved to Serbia. Section 2 of the Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995, 7/96) provides that property, situated in the previously occupied territories and belonging to persons who had left Croatia, should be in the possession and under the control of the State. The relevant part of the Act on Termination of the Temporary Takeover and Control of Certain Property Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no.101/98) provides that persons, whose property was given to others for accommodation during their absence from Croatia, are to file a request for repossession of their property with the competent local authority. The Act on the Areas of Special State Care (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/96, 57/96 (correction), 124/97, 73/00, 87/00 (correction), 69/01, 94/01, 88/02, 26/03 (consolidated text)), as amended by the 2002 Amendments, provides as relevant: Sections 8, 9 and 17 provide that a temporary occupant has the right to housing. Section 27 provides that the Ministry shall compensate the damage suffered by the owner who has submitted a request for repossession of his property prior to 30 October 2002 but to whom the property has not been returned by that date.
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train
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001-114579
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ENG
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LTU
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CHAMBER
| 2,012
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CASE OF DACHNEVIČ v. LITHUANIA
| 4
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No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
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Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
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5. The applicant was born in 1944 and lives in Šalčininkai. 6. In May 2002 the applicant approached the Children’s Rights Protection Agency of Šalčininkai District Council for a determination of whether she could become the legal guardian of her grandson, J.B. The Government specified that the Agency had provided the applicant with the information requested, but the applicant had never submitted an official application for guardianship. 7. On 26 April 2003 M.B., who did not possess a driver’s licence, was driving a car and caused a car accident. As a consequence, the applicant’s grandson J.B., who had been a passenger in the car, died from his injuries. He was 16 years old. Two other passengers were seriously hurt. 8. The applicant was granted the status of a victim in criminal proceedings in respect of M.B. When being questioned by an investigator on 10 and 20 June 2003, she stated that she did not speak the Lithuanian language. On the latter date, the applicant submitted a civil claim which was written in Russian and translated by a translator from a police station. She claimed 12,311 Lithuanian litai (LTL) in respect of pecuniary damage, listing expenses which she had incurred in connection with her grandson’s funeral. The applicant also claimed LTL 5,000 in respect of non-pecuniary damage. 9. On 17 September 2004 the Šalčininkai District Court, following criminal proceedings, found M.B. guilty of dangerous driving which had resulted in the death of a person (Article 281 § 5 of the Criminal Code). He was sentenced to four years’ imprisonment, but the execution of the sentence was suspended for two years. The court did not pronounce on whether M.B. had been driving while intoxicated. During the hearing, where the applicant, an interpreter, M.B. and his lawyer were present, the applicant asked that LTL 15,000 be awarded to her in compensation for pecuniary and non-pecuniary damage. The prosecutor asked the court to grant the request. M.B. stated that he could pay the applicant LTL 500 each month. The criminal court left the applicant’s civil claim to be examined in separate civil proceedings. 10. On 5 April 2005 the applicant instituted civil proceedings, claiming LTL 11,260 for pecuniary and LTL 3,740 for non-pecuniary damage. She stated that before his death her grandson had lived with her, as his mother lived in the Republic of Kazakhstan and his father had another family. M.B.’s death had caused the applicant severe emotional distress. In the applicant’s understanding, the criminal court had already awarded her the sum of LTL 15,000 in disposing of the criminal proceedings. She noted that although two years had passed since the car accident, M.B. had not paid her the money. The applicant also referred to the possibility that, in the event that M.B. was in a difficult financial situation, compensation for the damage she had sustained might be paid to her in several instalments rather than as a lump sum. The Government have provided the Court with an invoice from a law firm to the effect that on 6 April 2005 the applicant paid LTL 30 for “legal services”. 11. On 2 June 2005 the applicant presented the court with an estimate of her loss in connection with her grandson’s death. She claimed LTL 15,000 in total. That sum consisted of LTL 11,260 for pecuniary damage, which included a detailed calculation of her grandson’s burial costs, and LTL 3,740 in compensation for non-pecuniary damage. 12. In a written response M.B. asked the court to grant the claim in part and to award the applicant LTL 4,000. 13. Seeing the potential for the parties to reach a friendly settlement, on 14 June 2005 the judge held a preliminary hearing. The applicant, an interpreter, M.B. and his lawyer were present. As is evident from the transcript of the hearing, after the judge had explained the parties’ rights to them, the applicant asked the court to include a calculation of her expenses in the case file. M.B.’s lawyer, without making any other observations or statements, asked that documents concerning M.B.’s salary and family situation also be included in the file. Both requests were granted. When asked to present her arguments and claims on the merits, the applicant stated that during the criminal proceedings she, the prosecutor, M.B. and his lawyer had agreed that M.B. would pay her LTL 15,000 in compensation under both heads. However, M.B. had paid nothing so far. The applicant argued that her financial situation was not good. She had no further requests. M.B. acknowledged the civil claim in part, but stated that the sum of LTL 15,000 was too high. The court held that the case should be decided following a court hearing with the participation of the parties and an interpreter. 14. On 6 July 2005 the applicant sent the court a letter, raising the claim for compensation in respect of non-pecuniary damage by LTL 5,000 and requesting that she be awarded LTL 8,740 in total under that head. She noted that her family had been suffering for more than two years and implied that no steps towards reconciliation had been taken on M.B.’s part. 15. According to the transcript of the Šalčininkai District Court hearing of 8 July 2005, the applicant, an interpreter and the lawyer for M.B. took part in that hearing. It was also noted that the judge had explained the parties’ rights to them and that the parties understood them. The judge also asked the parties to put forward any requests, if they had any. The applicant asked the court to include her modified compensation claim in the case file. Given that the other party did not object, the judge accepted the modified claim. When hearing the case on the merits, the applicant again explained to the court that during the criminal proceedings the parties had come to an oral agreement that M.B. would pay her LTL 15,000, but to that day he had paid nothing. She presented a very detailed calculation of her expenses, based on invoices, for her grandson’s funeral and headstone construction costs. All in all, the applicant asked the court to award her the sum of LTL 11,260 in compensation for pecuniary damage and LTL 3,740 in compensation for non-pecuniary damage. The lawyer for M.B. acknowledged that, given that her client had already been found guilty in criminal proceedings, only the question of damages remained. She also accepted that the applicant had suffered non-pecuniary damage because of her grandson’s death. That being so, the lawyer asked the court to grant the applicant’s civil claim in part and to award her payment of the costs which were justified by invoices. As to non-pecuniary damage, the lawyer asked the court to make an award which would be reasonable and fair, taking into account the economic situation in Lithuania and the fact that M.B. only had a low salary and had no other property. The judge noted that the court’s decision would be announced on 12 July 2005. 16. On 12 July 2005 the Šalčininkai District Court granted the applicant’s claim in part. The court took notice of M.B.’s conviction for dangerous driving and held that, consequently, it was not necessary to prove his liability in the civil proceedings. M.B. was ordered to fully compensate the pecuniary damage he had caused to the applicant by her grandson’s death. Having had regard to the documents before it, the court awarded the applicant LTL 7,936 in compensation for pecuniary damage. 17. As to non-pecuniary damage, the Šalčininkai District Court took note of the applicant’s claim that the loss of her grandson had caused her great mental suffering. For the court, it was nonetheless important to point out that the car accident had been caused by M.B.’s recklessness, and not deliberately. It was also relevant that M.B. was relatively poor: he had a job but his salary was low (the court did not specify the level of salary in the decision), and he had no other property or income. Moreover, M.B. was a young person, therefore “the amount of compensation was not to ruin his life”. Relying on the above arguments, the Šalčininkai District Court awarded the applicant LTL 3,000 in compensation for non-pecuniary damage. 18. The applicant appealed, arguing that the award of damages was too low and asking that the case be remitted to the first-instance court for fresh examination, “in accordance with Article 326 § 1 (4) of the Code of Civil Procedure”. She submitted, with references to specific provisions of that Code, that the first-instance court had breached the principle of adversarial proceedings, the principle of the parties’ procedural equality and a person’s right to State legal aid. The applicant argued that she, as a Russian-speaking person of old age and little education, had not been able to properly exercise her rights at the hearing and effectively assert her claim. Neither had she been able to effectively support her claim by evidence. 19. In her appeal, the applicant also wrote that the judge hearing her case at the Šalčininkai District Court, just before the preliminary hearing concerning her claim and without noting it down in the transcript, had suggested to her that she find a lawyer. According to the applicant, the lawyer she approached had asked her to pay LTL 2,000 for legal services. The applicant had no such money and had therefore had to represent herself before the court of first instance. According to her, the same lawyer in fact had represented M.B. before the court. Only after the first-instance court had adopted the decision on the merits had the applicant found out that she had had the right to free legal aid, paid for by the State. In her view, had she had a lawyer, she would have been in a much better position to defend her interests and to obtain a court decision that would have fulfilled her expectations. 20. The appeal hearing before the Vilnius Regional Court took place on 25 October 2005, in the presence of the applicant and an interpreter. Neither M.B. nor his lawyer took part in that hearing, although M.B. had been informed of its date. As is evident from the transcript of the hearing, after the presiding judge explained the applicant’s rights to her, the applicant asked the court to admit in evidence two documents about her and her husband’s state of health. The request was granted. The applicant also submitted that she and her husband had been raising their grandson, J.B., as of 2001. After his death, there was no one to help them in the household. The applicant asked the court to grant her civil claim on the basis of the submissions that she had already made in writing. 21. By a ruling of 8 November 2005, the Vilnius Regional Court dismissed the applicant’s appeal. The court noted that at hearings on 14 June and 8 July 2005 the first-instance court had explained the applicant’s procedural rights to her, in the presence of an interpreter, and that the applicant had understood those rights. There was no information in the case file leading to the conclusion that the Šalčininkai District Court had breached the rules of civil procedure or the principles mentioned by the applicant. The court held that the applicant’s suggestion that her claim would have been fully granted if she had had a lawyer was unfounded, as a lawyer’s participation in proceedings could not guarantee a favourable outcome. Moreover, the fact that M.B. had been represented by a lawyer with whom the applicant had failed to conclude an agreement to represent her did not affect the lawfulness and fairness of the decision the first-instance court had adopted. 22. The Vilnius Regional Court noted that before the accident, the applicant’s grandson J.B. had lived with her for a couple of years and had often helped her, and that she had indeed lost the opportunity to communicate with him and to receive help from him. Nonetheless, the compensation award of LTL 3,000 for non-pecuniary damage which the first-instance court had made was reasonable. The lower court had also been correct in taking into account the fact that the applicant’s grandson had died because of M.B.’s recklessness and not because of a premeditated crime, as well as M.B.’s difficult financial situation. Lastly, the Vilnius Regional Court found that the written evidence about the applicant’s state of health that she had submitted to the appellate court did not give grounds to annul the first-instance court’s decision. 23. On 7 February 2006 the applicant submitted an appeal on points of law, drafted by a lawyer. She reiterated her argument that because she was a Russian-speaking person of old age, poor health and with little education, she had been unable to protect her interests properly in court without professional legal assistance. The applicant drew the Supreme Court’s attention to its ruling of 7 December 2005 (see paragraph 29 below), arguing that the lower courts should have taken the above factors into account. She also argued that the lower courts had wrongly established that M.B. had caused the car accident merely by not being careful. In the applicant’s view, M.B. had been openly reckless: he had had no driving licence and had been speeding. She did not argue that M.B. had been driving drunk. The applicant asked the Supreme Court to grant her civil claim in full and to award her the money she had paid for legal representation. M.B. did not lodge a response to the applicant’s appeal on points of law. 24. On 15 May 2006 the Supreme Court, in written proceedings, dismissed the applicant’s appeal on points of law. It noted that non-pecuniary damage was always to be compensated when a loss of life had occurred because of a crime. In this case, M.B. had not questioned his liability, the dispute thus concerning only the sum to be awarded in compensation for non-pecuniary damage. The Supreme Court also observed that the applicant’s grandson had died not because of M.B.’s premeditated actions, but because of his being reckless when driving and violating traffic rules. The lower courts had taken all the circumstances into account when assessing the amount of compensation. It was also noteworthy that the award of LTL 3,000 was close to the initial sum that the applicant had asked for in bringing the claim on 5 April 2005. Only later had she raised that claim by LTL 5,000 (paragraph 14 above). Should the Supreme Court raise the amount of compensation, it would mean re-evaluating the facts of the case de novo, and this was not within the competence of that court. The Supreme Court did not pronounce on the applicant’s claim that she had not been in a position to effectively defend her interests before the first-instance and appellate courts. 25. In response to a request for information by the Government, on 8 June 2011 Šalčininkai Council wrote that people living in the municipality are informed of free legal aid via a local newspaper, published in both the Lithuanian and Russian languages. They can also obtain leaflets on the subject at the council’s offices. Lastly, information about free legal aid is presented on billboards at the Šalčininkai District Court. Should a person request State legal aid, he or she can submit such a request without necessarily having to do so in the Lithuanian language. 26. The Code of Civil Procedure (hereinafter – “the CCP”) provides that court proceedings are conducted in the country’s official language, that is, Lithuanian (Article 11). Civil proceedings are adversarial and each party must prove the facts it relies upon (Article 12). 27. Practice direction no. A3-112 of the Supreme Court of 7 October 2004 reads as follows: “... The limits of a civil claim are defined by the ... entirety of the material legal basis [for the claim] indicated to the court (the subject of the claim) and by the evidence with which the requirements [of the law] are fulfilled (the factual basis of the claim). Since, according to Article 42 § 1 of the CCP, only the plaintiff has the right to change the subject or the basis of the civil claim, [or] to increase or decrease the claim, the court when adopting a procedural decision may not overstep the limits of the civil claim; i.e. may not change the subject of the civil claim (the court may not adjudge something that was not requested by the plaintiff (extra petita) or adjudge a higher amount than was requested (ultra petita), nor change the basis of the civil claim (in its decision the court cannot rely on facts that were not indicated by the plaintiff or evidence that the case file does not contain) (Article 265 § 2 of the CCP)).” 28. The Supreme Court’s ruling of 20 December 1999 in civil case no. 3K-3-904/1999 reads as follows: “... The principle of equality of arms has an immediate connection with the fundamental principles of civil proceedings – those of adversarial proceedings and control of the litigation by the parties (dispozityviškumas). It has been established by the CCP that all civil cases in all courts shall be examined in accordance with the principle of adversarial proceedings. This m, only assesses the evidence, establishes the responses are based. The court thus does not examine facts or collect evidence on its own initiative, but has to explain the parties’ rights to them and equally assist them in exercising those rights when the parties are in need of such assistance (for example, to obtain certain evidence on a party’s request, when that party does not have access to such evidence). The court however is not entitled to take the side of one of the parties and help [that party] to collect evidence, as in such a case not only would the principle of adversarial proceedings, but also the principles of equality of arms and impartiality of the court be violated ...” 29. On 7 December 2005 the Supreme Court, when assessing the pecuniary damage a claimant had sustained as a consequence of her injury during a car accident, noted that the claimant’s personality, age and state of health were circumstances to be taken into consideration when assessing her capacity to collect and present evidence (ruling in civil case no. 3K-3-643/2005). 30. On the issue of explaining the parties’ rights, in its ruling of 23 June 1999 in civil case no. 3K-3-323/1999 the Supreme Court held: “... The courts are bound by the CCP to explain to the persons taking part in the proceedings their rights and obligations ... Such [an] obligation on the court, however, does not mean that the court is bound to indicate what specific requests a party should submit or what specific means of defence against a civil claim a party should use in a particular case ...” 31. If the presiding judge considers that a party to civil proceedings is incapable of adequately protecting its rights, he or she may suggest that that party obtain legal representation (Article 161 of the CCP). 32. According to Article 182 § 3 of the CCP, in civil proceedings it is not necessary to prove de novo facts that have been proved in criminal proceedings in which a court judgment has entered into force. An appellate court may quash the first-instance court’s decision in part or in its entirety and refer the case for fresh examination (Article 326 § 1 (4)). An appeal on points of law must be drafted by a lawyer (Article 347 § 3). The court reviewing such an appeal is bound by the facts established by lower courts and may only decide questions of law (Article 353 § 1). 33. Free legal aid is regulated by the Law on State Legal Aid. It is provided by, inter alia, State-funded legal aid services (“Services”), municipal authorities and the Lithuanian Bar. Each municipal authority and Service must regularly inform local residents about the possibility of receiving free legal aid. The law defines two categories of legal aid. Primary legal aid, that is the provision of legal information, legal advice, and drafting of documents to be submitted to municipal authorities and State institutions, is provided for at the municipal level. When a person wishes to receive secondary legal aid, which consists of drafting procedural documents and representation in court, he or she must address the Service of that court’s geographical area and prove his or her eligibility, which depends on the individual’s financial means. 34. Pursuant to Article 281 § 5 of the Criminal Code, a person who has caused a car accident that has resulted in the death of a person may be punished by deprivation of liberty for up to eight years. 35. Article 6.263 of the Civil Code provides that pecuniary loss resulting from any bodily or property damage caused to another person and also, in cases established by the law, non-pecuniary damage must be fully compensated by the person liable. 36. Under Article 6.250 of the Civil Code, non-pecuniary damage is deemed to be a person’s suffering, emotional distress, inconvenience, mental shock, emotional depression, diminution of the chance to associate with others, and so on, as evaluated by a court in monetary terms. Non-pecuniary damage is to be compensated in all cases where it has occurred due to crime, injury to health or loss of life, as well as in other cases provided for by law. In assessing the amount of non-pecuniary damage, a court must take into consideration the consequences of such damage sustained, the extent to which the person who caused the damage was at fault, his financial status and any other circumstances of importance for the case, in addition to the criteria of good faith, fairness and reasonableness. 37. In their observations on the admissibility and merits the Government provided four examples of domestic case-law regarding compensation for wrongful death. They noted the 17 May 2005 decision of the Court of Appeal in case no. 2A-138/2005, wherein compensation in the sum of LTL 70,000 was awarded to each of two children whose father had died in a car accident; LTL 50,000 was awarded to his spouse and LTL 25,000 to each of his parents. In addition, the court awarded monthly maintenance costs for the children. The defendant in that case was the Chancellery of the Lithuanian Parliament, whose driver had caused the accident. By a decision of 4 October 2004 in civil case no. 3-3K-511/2004, the Supreme Court awarded LTL 50,000 each in respect of non-pecuniary damage to two minor children and their grandmother, whose mother and daughter, respectively, had died because of medical malpractice. Compensation for pecuniary damage in the sum of LTL 7,053 was also awarded. The court awarded LTL 145 per month to each of the children until they reached the age of majority. By a ruling of 26 April 2005 in civil case no. 3K-7-159/2005, the Supreme Court awarded the sum of LTL 7,000 in compensation for non-pecuniary damage to a mother whose son had been killed in a car accident. The sum of LTL 8,000 was awarded to compensate pecuniary loss. Lastly, the Government referred to the ruling of 28 August 2007 in civil case no. 2A-362/2007 by the Court of Appeal, where LTL 5,000 was awarded in compensation for non-pecuniary damage to the claimant, whose mother had been murdered. The court noted that the son was not in close contact with his mother.
| 0
|
train
|
001-68825
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,005
|
SCHEPER v. THE NETHERLANDS
| 3
|
Inadmissible
|
David Thór Björgvinsson;Mark Villiger
|
The applicant, Jan C.R.R. Scheper, is a Netherlands national who was born in 1968 and lives in Rijswijk. He was represented before the Court by Mr J. Boksem, a lawyer practising in Leeuwarden. On an unspecified date, the applicant was charged with having raped three drug-addicted street prostitutes, Ms A., Ms B. and Ms C., and an unrelated count of forgery. He was summoned to appear on 27 July 1999 before the Arnhem Regional Court (arrondissementsrechtbank) in order to stand trial on these charges. In the course of the adversarial proceedings before the Regional Court, the applicant admitted that he had had sexual intercourse with the three women, but denied having raped them. The three women were not heard before the Arnhem Regional Court. In its judgment of 24 March 2000, the Arnhem Regional Court convicted the applicant of having raped Ms A., Ms B. and Ms C. and of forgery, and sentenced him to four years imprisonment. In addition, having found that the applicant was suffering from a personality disorder and was dangerous, it further ordered his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege). It also ordered the applicant to pay Ms A., who had joined the criminal proceedings as a civil injured party (benadeelde partij) and had filed a claim for compensation of damage incurred, an amount of 5,300 Netherlands Guilders (“NLG”; i.e. 2,405.04 euros). The applicant filed an appeal with the Arnhem Court of Appeal (gerechtshof). On 22 August 2000, the Court of Appeal commenced its examination of the applicant's appeal and considered the request by the defence to summon Ms A., Ms B. and Ms C., as well as two ex-girlfriends, in order to give evidence before the Court of Appeal. After having deliberated, the Court of Appeal decided to adjourn its examination of this request. It considered, finding that insufficient reasons had been given for this request, that it could not determine the necessity to hear these witnesses. It requested the defence to submit a reasoned request for hearing witnesses well before 2 November 2004 when it would resume its examination of the appeal. The Court of Appeal resumed the proceedings on 2 November 2000. As its composition had changed in the meantime, the Court of Appeal fully recommenced its examination of the applicant's case. The applicant submitted that he had been unjustly convicted. He confirmed that he had had sexual contacts with Ms A., Ms B. and Ms C. but denied that he had raped them. He stated that Ms A. was a prostitute and he confirmed having taken her in his car. When heard before the Court of Appeal, Ms A. stated: “It is correct that I got into the car of the suspect. I did not know the suspect before, also not from the café. What this man has done is not normal. I had not expected the suspect to be here. This is a shock to me and I do not want to testify now. I have been heard in a detailed manner by the police for two days. I also do not understand that I must now act as a witness. I have received from the public prosecutor's department a notification for an injured party and that is the reason for my present appearance. I want compensation for what has been done to me. I now first want to consult my mother.” After the public prosecutor had informed the Court of Appeal that it was possible that Ms A. had only received the notification for an injured party but not the summons to appear as a witness, the Court of Appeal suspended the hearing in order to allow Ms A. to consult her mother. When it resumed the hearing, the Court of Appeal noted that Ms A. was no longer in the court room. Her mother stated before the court: “My daughter is now in the hall of the court. She had not expected having to appear as a witness. She no longer lives at home and has not seen the summons. My daughter does not wish to see [the applicant] anymore and does not wish to recall what has happened to her. She has tried for seven months to stop taking drugs but unfortunately without success, she is still addicted. She cannot face having to recount her story again.” The public prosecutor informed the Court of Appeal that it did not find it necessary to hear Ms A., that the last known address of Ms B. was a Groningen aftercare organisation and the last known address of Ms C. that of an Amsterdam police station. The public prosecutor submitted that summoning these two witnesses would be pointless, unless the defence had new addresses for these witnesses. The defence stated that it was important to take oral evidence from these witnesses and that it expected that, if the judicial authorities made the necessary efforts, it would be possible to summon them. After having deliberated, the Court of Appeal ordered the public prosecutor to make all possible efforts to take evidence from Ms A., Ms B. and Ms C. as well as from two male witnesses, Mr K. and Mr M., who had been proposed by the defence. It adjourned its further examination until 19 January 2001. The appeal proceedings were resumed on 19 January 2001. As its composition had changed again in the meantime, the Court of Appeal fully recommenced its examination of the applicant's case. It noted, inter alia, the submission of a written record of the evidence given by Mr K. on 19 December 2000 before the investigating judge (rechter-commissaris) at the Arnhem Regional Court, and that according to information provided by the investigating judge it had not been possible to hear Ms A., Ms B., Ms C. or Mr M. The defence stated that it waived its wish to hear Mr M. The defence further submitted that, although it understood that it was pointless and superfluous to summon the three victims, the taking of their evidence remained important for the defence and that, therefore, it did not formally waive its wish to hear them. The public prosecutor agreed with the defence that summoning the three victims would be pointless and proposed that the Court of Appeal would proceed with its examination of the applicant's appeal. The public prosecutor further did not find it necessary to hear Mr M. After having deliberated, the Court of Appeal decided that it did not see any merit in ordering fresh attempts to summon the three victims as it was unlikely that they would appear within an acceptable delay. It therefore rejected the request by the defence to summon them. Further noting that none of the parties wished to hear Mr M., it considered that it was no longer necessary to hear this witness. It heard the applicant, who admitted having had sexual intercourse with Ms A., Ms B. and Ms C. but denied having raped them. As regards the charges relating to Ms A. he added that he had had chocolate in his car, but denied having inserted chocolate into her vagina.. After having heard the parties' final pleadings, the Court of Appeal closed its examination and set a date for judgment. In its judgment of 2 February 2001, the Court of Appeal quashed the judgment of 24 March 2000 and convicted the applicant of having raped Ms A., Ms B. and Ms C. and of forgery. As regards the imposition of its sentence the Court of Appeal took into account that the applicant, in the course of a period of slightly more than one month, had on three occasions picked up a street prostitute in his car. As from the outset he then subsequently misled the woman by pretending, inter alia, that he could pay by providing drugs. He then committed very humiliating acts, in particular by inserting chocolate bars in the vagina of one of his victims. He fully ignored the victims' feelings and abused the very vulnerable position in which the victims, being street prostitutes, found themselves. Having found that at the material time the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree, whereas there was a considerable danger of recidivism of aggressive sexual offences against women, the Court of Appeal sentenced the applicant to four years imprisonment in combination with an order for his confinement in a custodial clinic. It also ordered the applicant to pay the injured party Ms A. compensation in an amount of NLG 5,300. The Court of Appeal based its conviction of the applicant of the rape of Ms A., Ms B. and Ms C. on the following means of evidence: - the applicant's statement before the Court of Appeal that he had had sexual intercourse with Ms A.; - the detailed statement given by Ms A. to the police in which she related, inter alia, that on 9 September 1998 in Arnhem she had seen her colleague and friend Ms X. sitting next to the driver in a car passing by, that shortly thereafter this car had stopped near to the telephone booth in which she had taken shelter from the rain and that Ms X. was no longer in the car, that she had then been picked up by the driver of this car who had subsequently raped her in a brutal and very painful manner in that, before forcing her to have intercourse with him, he had forcibly inserted several chocolate bars into her vagina, and that he had also taken photographs of her before he had allowed her to dress and leave the car; - a report on a medical examination of Ms A. on 9 September 1998 according to which her vagina was considerably soiled by chocolate; - the record of observations and findings (relaas van waarnemingen en bevindingen) drawn up by the reporting police officers M.H. and F.M., according to which staff of the Groningen police region had informed them, after the rape of Ms A. had been signalled in a police bulletin, that in August 1998 – both in Groningen and Amsterdam – a man had raped drug-addicted prostitutes in a similar manner, that in the Amsterdam case the perpetrator had also taken similar photographs as in the Arnhem case, that in all cases the suspect had been heard who had confirmed having had contacts with the victims but that these contacts had been consensual although he had not paid the prostitutes, and that the suspect had been identified as [the applicant]; - Ms X.'s recognition of the applicant as the driver of the car from a number of photographs of different persons shown to her on 2 March 1999, at which occasion she stated that his hair style on the photograph was different than when she had seen him; - Ms A.'s recognition of the applicant as her assailant from a number of photographs of different persons shown to her on 3 March 1999; - the detailed statement given by Ms B. to the police, in which she related inter alia that on or around 7 August 1998 in the Groningen region she had been forced to get into a car driven by a rather aggressive man who had subsequently raped her in a crude manner, and that she remembered the car's licence plate; - the record of observations and findings drawn up by the police officer who had taken down Ms B.'s criminal complaint on 18 August 1998. According to this record the description and licence plate of the car given by Ms B. corresponded to a car that was being used by the applicant and Ms B.'s description of her assailant corresponded to the applicant's features. The record further states that, on 26 August 1998, the reporting police officer had been informed by the Amsterdam police that the driver of a car with the same licence plate and whose physical features exactly matched the description given by Ms B., was being searched for having raped, sexually assaulted, threatened and unlawfully deprived of liberty a German street prostitute in Amsterdam, Ms C., who had filed a criminal complaint on 25 August 1998; - the applicant's statement to the police in which he confirmed that he had had sexual contacts with a prostitute in Groningen and in which he described the car in which he had then driven, the licence plate and description matching the information given by Ms B.; - the detailed statement given by Ms C. to the police, in which she related, inter alia, that on 26 August 1998 shortly after midnight in Amsterdam she had been picked up by a client in a car, that her friend had noted down the licence plate of this car, and that she had subsequently been raped in an aggressive and very painful manner by the driver of this car; and - the applicant's statement to the police in which he confirmed that he had had intercourse with a prostitute whom he had picked up in Amsterdam by the end of August 1998, and in which he described the car he had then driven, the description and licence plate matching the information given by Ms C. The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 11 June 2002. The Supreme Court found that Article 6 of the Convention did not prevent the use in evidence of the statements given by Ms A., Ms B. and Ms C. to the police despite the fact that neither the applicant nor his lawyer had been able to question them as a witness. In this respect the Supreme Court accepted as correct and not unreasonable the conclusion of the Court of Appeal that further attempts to make the three victims appear before the Court of Appeal would serve no useful purpose. The Supreme Court also accepted that the respective statements by Ms A., Ms B. and Ms C. were sufficiently corroborated by other means of evidence.
| 0
|
train
|
001-110543
|
ENG
|
MKD
|
CHAMBER
| 2,012
|
CASE OF SAŠO GORGIEV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 1
|
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary and non-pecuniary damage - award
|
Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
5. The applicant was born in 1972 and lives in Skopje. 6. The applicant worked as a waiter in a bar in Skopje. At 3.50 a.m. on 6 January 2002, R.D., a police reservist, fired a shot in the bar hitting the applicant in the chest. According to a medical certificate of 12 September 2002 issued by Skopje Clinical Centre , the applicant was urgently admitted in a “serious condition” (тешка општа состојба). The injuries sustained were described as follows: broken right clavicle and four broken ribs, injury to the subclavian artery, internal haemorrhaging and seizure of the brachial plexus nerves. His right arm was paralysed. The conclusion was that the applicant had sustained serious bodily injury with life-threatening damage and lasting consequences (витална загрозеност и трајни последици). He was operated on twice, the second time in April 2002 in the Clinical Centre of Belgrade, Serbia. 7. On 27 March 2003 the Skopje Court of First Instance (“the trial court”) convicted R.D. in absentia of “serious crimes against public security” (тешки дела против општата сигурност). He was sentenced to two years’ imprisonment. After the court had heard oral evidence from R.D., the applicant and six witnesses and examined other material evidence, it found that R.D., while intoxicated, had unintentionally pulled the trigger of his service gun and shot the applicant, who had been at a distance of one metre. The applicant was advised to pursue his compensation claim by means of a separate civil action. The decision became final on 8 May 2003. 8. R.D. started serving his sentence on 6 June 2008. On 23 June 2008 the trial court reopened the proceedings, at R.D.’s request. On 12 March 2009 the trial court found R.D. guilty again and sentenced him to two years’ imprisonment, suspended for four years. No information was provided as to whether that decision was the subject of an appeal or became final. 9. On 11 November 2002 the applicant, represented by Mr P. Šilegov, brought a civil action against the Ministry of the Interior (“the Ministry”) seeking compensation for pecuniary and non-pecuniary loss related to the injury sustained as a result of R.D.’s action. He claimed that the State should be held responsible, given that R.D., instead of being on duty in a police station, had shot him in the bar. He had used his service gun and had been in uniform. He claimed 28,000,000 Macedonian denars (MKD) in respect of non-pecuniary damage and MKD 208,480 for pecuniary damage (expenses related to his medical treatment). 10. After five adjournments, the Skopje Court of First Instance dismissed the applicant’s claim on 12 December 2003, finding that the Ministry lacked the requisite capacity to be sued for the damage caused by R.D., who, being a police reservist, was regarded a State official. The court established that between 7.30 p.m. on 5 January 2002 and 7.30 a.m. on 6 January 2002 R.D. had been on duty in a police station in Skopje. He had been assigned to stand guard (службена задача – стража) between midnight and 1 a.m. and between 6 a.m. and 7 a.m. on 6 January 2002. After 1 a.m. on 6 January 2002, instead of returning to the police station, R.D. had gone to the bar on his own initiative, without informing his superior or the latter’s replacement. He had been in uniform and had been carrying his service gun. In the bar, in the presence of other customers and under the influence of alcohol, he had pulled the gun out and shot the applicant, who had been in front of him at a distance of about 1.5 metres. The court found that the applicant had suffered damage as a result of R.D.’s action. However, in order for the Ministry to be held responsible under section 157 of the Obligations Act (see paragraph 19 below), the court said that “... certain conditions need to be met: the damage must be caused by an official (овластено службено лице), it must be sustained by a physical or legal person and, in particular, it has to be caused by an official in the performance of his or her duties. It also has to result from an unlawful action. The defendant (the State) will be held responsible only if the damage is caused in the course of or in connection with the performance of the official duties. An action will be regarded as carried out in the performance of a duty if it is part of the duties (функција) of the official. It is a a harmful action taken within working hours, in the official capacity of the person concerned and as part of his official duties. Damage may be caused outside official duties, but there must be a causal link with the performance of the duty or the duty itself ... in the present case, R.D. was not in the bar in an official capacity ... so the damage was not caused in connection with the performance of the Ministry’s duties, even though it was caused at a time when R.D. was supposed to be on duty. At the critical time and place R.D. was not acting in an official capacity but as a private person, despite the fact that it was within working hours; he was in uniform and used his service gun. R.D. is responsible for the action taken and damage caused. There is no causal link between his action and his duty ... The fact that [R.D.] was in uniform and used his service gun does not mean, in itself, that he was acting in an official capacity. R.D. did not use the gun in connection with the performance of his duties, but as a customer in the bar ... At the time when the damage occurred, R.D., as a police reservist, was an adult and trained in the use of the gun. The defendant, as the owner of the gun, is relieved, under section 163(2) of the Obligations Act, from responsibility, given that the damage occurred solely as a result of an unforeseeable action by its agent whose consequences could neither have been prevented nor removed.” 11. The court concluded that the applicant remained entitled to claim compensation from R.D. under section 141 of the Obligations Act (see paragraph 16 below). 12. On 3 March 2004 the applicant appealed, arguing that the Ministry was to be held responsible for R.D.’s actions, as he had acted while on duty, had been in uniform and had fired his service gun. In his submission, the Ministry’s responsibility derived from section 103 of the Employment Act (see paragraph 20 below) under which the Ministry could claim reimbursement from R.D. Lastly, he submitted that he had suffered irreparable damage as a result of the incident, as his right arm had become permanently paralysed. 13. On 27 April 2004 the Skopje Court of Appeal dismissed the applicant’s appeal, finding no grounds on which to depart from the lower court’s finding that R.D.’s actions in the bar were not related to his official duties as a police officer. It went on to find that when R.D. shot the applicant he had not been acting as a police officer and had not been performing official duties. There was accordingly no responsibility on the part of the Ministry. The court confirmed the applicant’s entitlement to claim compensation from R.D. 14. On 21 July 2004 the applicant lodged an appeal on points of law (ревизија) with the Supreme Court, arguing, inter alia, that the Court of Appeal had not addressed his arguments regarding the Ministry’s responsibility under the Employment Act. 15. On 31 May 2006 the Supreme Court dismissed the applicant’s appeal on points of law, reiterating the reasons given by the lower courts. 16. Section 141 of the Obligations Act sets out the general principle governing civil compensation claims. 17. Section 157 provides that the employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to these. The victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if the latter caused the damage intentionally or negligently. 18. Under section 160, the owner of a dangerous item (опасен предмет) is responsible for any damage caused by it. 19. Section 163(2) provides that the owner of a dangerous item can be relieved of responsibility if it can be shown that the damage was caused exclusively by an unforeseeable action on the part of the victim or a third person whose consequences could not have been prevented or removed. 20. Under section 103 of the Employment Act of 1993, as in force at that time, an employer was responsible for any damage caused by an employee while performing his or her duties or in relation to them. The employer could seek reimbursement of the compensation from the employee if the latter had caused the damage intentionally or negligently. 21. Section 24 of the Internal Affairs Act, as in force at the time, specified which agents were regarded as State officials. 22. Under section 26, State officials were required to perform their duties at all times, regardless as to whether they were on or off duty. 23. In a state of war or emergency, the Ministry could call up reservists in order to ensure public safety and prevent mass disorder (section 45(2) of the Internal Affairs Act). Reservists could be recruited for training or practice. During their period of service, reservists were regarded as State officials within the meaning of section 24 of the Act (section 46). 24. The Government provided a copy of a first-instance court decision concerning a compensation claim submitted against the Ministry and a police officer who had negligently fired his service gun inside the Ministry building, as a result of which the claimant sustained bodily injuries. The first-instance court found the police officer directly responsible and ordered him to pay the damages. It dismissed the claim against the Ministry on grounds of lack of capacity to be sued. No information was provided as to whether this decision became final (П.бр.1274/2007 of 2 July 2008). The police officer in this case was convicted of “serious crimes against public security” and sentenced to a suspended prison term (К.бр.751/06 of 21 February 2007). 25. Article 11 of the Basic Principles provides, inter alia, that: “Rules and regulations on the use of firearms by law enforcement officials should include guidelines that: (a) Specify the circumstances under which law enforcement officials are authorised to carry firearms... (b) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm; ... (d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.” 26. Article 37 of the Code provides that “the police may use force only when strictly necessary and only to the extent required to obtain a legitimate objective”. 27. The commentary to Article 37 of the Code reads, inter alia, as follows: “...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...”
| 1
|
train
|
001-23702
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,003
|
BURG and OTHERS v. FRANCE
| 1
|
Inadmissible
| null |
The applicants, Brigitte Burg, Régine Baumann, Véronique Gafanesch, Evelyne Pirro, Jean-Michel Plas and Dalila Bouherrou, are French nationals who were born in 1963, 1959, 1956, 1955, 1949 and 1961 respectively and live in Mulhouse, Flaxlanden, Rixheim, Ruelisheim and Illzach. They were represented before the Court by Mr F. Gaston, a lawyer practising in Poitiers. On 21 September 1995 the applicants applied to an employment tribunal in a dispute between themselves and their employer, contesting the grade in which they had been placed under an additional clause modifying a workplace agreement. On 29 April 1997 the employment tribunal gave judgment in their favour. On 24 June 1997 their employer appealed. On 16 December 1999 the Colmar Court of Appeal varied the first-instance judgment. On 26 March 2002 the Employment Division of the Court of Cassation dismissed an appeal on a point of law lodged by the applicants, ruling that their ground of appeal was “not such as to warrant admitting the appeal”, thus applying Article L. 131-6 of the Code of Judicial Organisation, as amended by Law no. 2001-539 of 25 June 2001, which had introduced a special procedure for the consideration of appeals on points of law. The relevant part of Article L. 131-6 of the Code of Judicial Organisation, as amended by Law no. 2001-539 of 25 June 2001, provides: “After pleadings have been filed cases before a civil division shall be tried by a bench of three judges of the division to which they have been assigned. The bench shall refuse to admit appeals which are inadmissible or not founded on a serious ground of cassation.”
| 0
|
train
|
001-80044
|
ENG
|
RUS
|
CHAMBER
| 2,007
|
CASE OF KHVOROSTINA AND OTHERS v. RUSSIA
| 4
|
Violation of Art. 6;Violation of P1-1
|
Christos Rozakis
|
4. The applicants are Russian nationals who live in the town of Korenovsk in the Krasnodar Region. They are former employees of the Architecture and Town Planning Department of the Korenovskiy District Council (hereafter – the Council). The three applicants were employed as engineers, one as a technician and one as a land engineer. 5. In January 2001 the applicants were dismissed from their positions. 6. The applicants sued the Council for reinstatement and wage arrears for the period from October 2000 to January 2001. 7. On 28 March 2001 the Korenovskiy District Court dismissed the applicants' claims for reinstatement but awarded them the amounts listed in the schedule. The judgment became final on 22 May 2001 when the Krasnodar Regional Court upheld it on appeal. The judgment remains unenforced because the Council does not have necessary funds. 8. The applicants asked the Justice of the Peace of the 153rd Court Circuit of the Korenovskiy District to award them wage arrears for the period from February to April 2001. 9. On 20 June 2001 the Justice of the Peace accepted their action against the Council and awarded them the amounts listed in the schedule. The judgment was not appealed against and became final. 10. Enforcement proceedings were instituted, but the judgment was not enforced because the Council did not have funds. 11. On 8 August 2002 the sums awarded by the judgment of 20 June 2001 were credited to the applicants' accounts. 12. The applicants lodged an action against the Council, complaining that the Council failed to enforce the judgments of 28 March and 20 June 2001. They sought payment of the amounts awarded under those judgments. 13. On 20 November 2002 the Justice of the Peace held that the Council should pay the applicants compensation for the delay in enforcement of the judgment of 28 March 2001 for the period from 22 May 2001 to 20 November 2002 (the amounts awarded are listed in the schedule). The judgment of 20 November 2002 was upheld on appeal on 24 December 2002. 14. Enforcement proceedings were instituted but the judgment of 20 November 2002, as upheld on appeal on 24 December 2002, remains unenforced because the Council does not have funds.
| 1
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train
|
001-71349
|
ENG
|
UKR
|
CHAMBER
| 2,005
|
CASE OF SKUBENKO v. UKRAINE
| 4
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Zoryana Bortnovska
|
9. The applicant was born in 1953 and lives in Kyiv. He is a former employee of the Institute of Semiconductor Physics of the Academy of Sciences of Ukraine (the “ASU”). 10. Between 1991 and 1995 the applicant, who was already a tenant of studio No. 35/5 in a communal apartment, petitioned various Ukrainian authorities seeking the right to reside in studio No. 35/6, which had become vacant in January 1995. By a decree of 10 July 1995, the Leningradsky District Council of Kyiv (the “LDC”) granted Mrs V.M.K. (a private person) the right to use that studio. 11. On 30 August 1995 the applicant lodged complaints with the Leningradsky District Court of Kyiv (the “Leningradsky Court”), seeking Mrs V.M.K.’s eviction from the studio. He also requested the court to issue him with a certificate granting him the right to occupy it. 12. On 22 November 1996 the Leningradsky Court rejected the applicant’s claims as being unsubstantiated. On 5 February 1997 the Kyiv City Court quashed this judgment and remitted the case for fresh consideration. 13. In December 1997 the applicant lodged his complaints with the Leningradsky Court against the ASU and the LDC, seeking to quash the decree of 10 July 1995 and to be allocated studio No. 35/6. By a judgment of 4 December 1997, the court quashed the decree of 10 July 1995 and recognized the applicant’s right to use the studio. The court ordered the respondents to take all necessary measures for the applicant’s enjoyment of his residential premises and the enforcement of the judgment of 4 December 1997. The judgment became final on 14 December 1997. 14. In January 1998 the applicant lodged the writ of execution with the Leningradsky District Execution Service of Kyiv. As a result, the certificate of Mrs V.M.K. granting her the use of studio No. 35/6 was annulled. 15. On 6 February 1998 the applicant lodged the writ of execution with the Starokyivsky District Execution Service of Kyiv (the “Starokyivsky Execution Service”) to oblige the ASU, one of the owners of the apartment, to certify that he could use studio No. 35/6. The execution proceedings were instituted on 23 February 1998. 16. Between April 1998 and February 1999, the applicant lodged several complaints with the Leningradsky Court, the Starokyivsky District Court of Kyiv (the “Starokyivsky Court”), the Kyiv City Court, the General Prosecution Service and the Kyiv Department of the Ministry of Justice, complaining about the failure of the Execution Service to enforce the judgment of 4 December 1997. 17. On 1 September 1998 the Starokyivsky Execution Service initiated administrative proceedings against the Logistics Director of the ASU who had failed to execute the judgment given in the applicant’s favour. 18. On 10 September 1998 the Logistics Department of the ASU informed the applicant and the Starokyivsky Court that the applicant had received the keys and free access to studio No. 35/6 in May 1998. 19. On 23 September 1998 the Starokyivsky Court fined the Logistics Director of the ASU for failure to comply with the judgment of 4 December 1997. 20. The Director appealed against this decision as he did not have the power to issue a certificate for the use of the apartment, which power lay with the LDC. The Kyiv City Court allowed the Director’s appeal on 4 November 1998. On 29 December 1998 the Starokyivsky Court dismissed the petition of the Starokyivsky Execution Service of 1 September 1998 by which it had initiated administrative proceedings against the Logistics Director of the ASU. 21. On 5 August 1999 the applicant was dismissed from his position at the ASU for alleged failure to appear at work for a lengthy period of time. 22. On 6 August 1999 the ASU issued resolution No. 1041 granting the applicant the use of studios Nos. 35/5 and 35/6. They also petitioned the LDC to issue a certificate (ордер) for the applicant’s use of those studios. 23. On 28 September 1999 the LDC issued decree No. 1329 authorising the applicant to use apartments Nos. 5 and 6 situated at 14, Dobrokhotov Street in Kyiv. 24. On 12 October 1999 the Kyiv Department of Justice informed the applicant about the execution of the judgment of 4 December 1997. 25. On 20 October 1999 the LDC issued a certificate (ордер на квартиру) to the applicant recognising his right to use the aforementioned apartments. 26. On 29 October 1999 the applicant informed the Court that the certificate for the use of the appartment was invalid as it concerned apartments No. 5 and 6, but not studios Nos. 35/5 and 35/6, specified in the judgment of the Leningradsky Court. 27. In January 2001 the ownership title of appartment No. 35 belonging to the ASU was transferred to the LDC. 28. In July 2003 the applicant was informed by the Communal Residence Department of the LDC that he would be provided with a certificate for his residential premises. 29. On 7 August 2003 the LDC issued decree No. 1411 acknowledging the applicant’s right to use studio No. 35/6 and issued him with a certificate of use on 2 September 2003. 30. The relevant provisions of the domestic law and practice are cited in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and the admissibility decision in the present case (Skubenko v. Ukraine, no. 41152/98, 6 April 2004).
| 1
|
train
|
001-59455
|
ENG
|
GBR
|
GRANDCHAMBER
| 2,001
|
CASE OF Z AND OTHERS v. THE UNITED KINGDOM
| 1
|
Violation of Art. 3;No separate issue under Art. 8;No violation of Art. 6;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award
|
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
|
9. The applicants are four full siblings: – Z, a girl born in 1982; – A, a boy born in 1984; – B, a boy born in 1986; – C, a girl born in 1988. 10. The applicants' parents were married in November 1981. 11. The family was first referred to social services in October 1987 by their health visitor due to concerns about the children and marital problems. Z was reported to be stealing food at night. Following the referral, a professionals' meeting, involving the relevant agencies, was held on 24 November 1987, at which it was decided that a social worker and health visitor should visit. The family were reviewed at a further meeting in March 1988 and as it appeared that concerns had diminished, the file was closed. 12. In September 1988 a neighbour reported that the children were locked outside the house for most of the day. 13. In April 1989 the police reported that the children's bedrooms were filthy. The family's general practitioner also reported that the children's bedrooms were filthy and that their doors were locked. The children's head-teacher, Mrs Armstrong, expressed concern in May 1989 and requested a case conference. In June 1989 the NSPCC (National Society for the Prevention of Cruelty to Children) and the emergency team made a referral after complaints by neighbours that the house was filthy and that the children spent most of the day in their bedrooms, rarely being allowed out to play, and crying frequently. In August 1989 the maternal grandmother complained to the social services about the mother's care and discipline of the children. 14. At a professionals' meeting on 4 October 1989, at which the social services, the applicants' head-teacher, the applicants' general practitioner and health visitor attended, it was decided that no social worker would be allocated to the family. The school was to monitor the older children's weight and the health visitor was to continue to visit the family regularly. It was agreed that the problem was one of limited and neglectful parenting rather than a risk of physical abuse, and that the parents should be assisted to manage their responsibilities better. 15. In October 1989, whilst the applicants were on holiday, their house was burgled. On entering, the police found it in a filthy state. Used sanitary towels and dirty nappies were discarded in a cupboard and the children's mattresses were sodden with urine. At a professionals' meeting on 13 December 1989, the health visitor requested that the four older children be placed on the Child Protection Register as she felt that their mother could not offer consistent care. This suggestion was rejected. However, a social-work assistant, Ms M., was assigned to the family. It was not considered appropriate to convene a case conference at this stage. Prior to the meeting, Z and A had mentioned to the head-teacher that A had been hit with a poker. It was decided that this statement would be investigated. 16. At a professionals' meeting on 23 March 1990, an improvement was noted in respect of the cleanliness of the house, the children's bedding being clean save on two occasions. However, it was reported that Z and A were taking food from bins at the school. There was still considered to be cause for concern, especially since the birth of another child was expected. 17. At a professionals' meeting on 11 July 1990, the applicants' headmistress reported a deterioration in the children's well-being; Z and A were still taking food from bins and A was soiling himself. Ms M. was visiting weekly at this stage and said that she was checking the children's bedrooms. She had noted that the children ate at 4 or 4.30 p.m. and then did not eat again until the morning. The children were also sent to bed at 6 p.m. It was planned to give the applicant's mother further assistance through a voluntary agency. 18. In or about September 1990, A and B were both reported to have bruising on their faces. The police investigated after neighbours had reported screaming at the applicants' home but apparently found no signs of bruising. They reported to the social services that “the conditions of the house were appalling and not fit for [the] children to live in”. 19. At a further professionals' meeting on 3 October 1990, the assistant social worker, Ms M., stated that she was concerned about the applicants' soiling and their mother's lack of interest. Apparently, the children were defecating in their bedroom and smearing excrement on their windows. The head-teacher expressed concern, particularly concerning the boys A and B, and stated that the children had described blocks of wood being placed against their bedroom doors. It was decided to continue monitoring the children. 20. At a professionals' meeting on 5 December 1990, a decision was made to arrange a case conference for January 1991 as a result of concern regarding the applicants' care and the state of their bedroom. Ms M. considered that standards in the boys' bedroom had dramatically dropped. She found the room to be damp and smelly. A's bed was broken and had a metal bar protruding from it. The bedding was damp and grubby with soil marks. 21. In a report dated 24 January 1991, the headmistress stated that A was shabby, ill-kempt and often dirty and that he had been raiding the playground bins for apple cores. Z was pathetic, lacking in vitality and frequently and inexplicably tearful, becoming increasingly isolated from the other girls in her peer group with unfortunate incidents in which detrimental remarks were made about her appearance. B presented as withdrawn, pathetic and bedraggled. He regularly arrived cold, was frequently tearful and craved physical contact from adult helpers. He also appeared to crave for food. She concluded that they were still concerned that the children's needs were not being adequately met and that home conditions and family dynamics were giving reasons for concern. 22. At the case conference held on 28 January 1991, Ms M. stated that the boys' bedroom had no light, carpet or toys and that their bedding was wet, smelly and soil-stained. Their mother did not change the beds. Their head-teacher stated that Z was tearful and withdrawn, A had been raiding school bins and was often dirty, and B was very withdrawn, craved attention and was ravenously hungry. The chairman of the conference concluded that, despite the many concerns about the parenting of the applicants and the conditions in the home, there was little evidence to support going to court. It was felt that the parents were not wilfully neglecting their children and, bearing in mind their own poor upbringing, it was considered that the applicants' parents were doing what they could and that continued support was required to try and improve the situation. It was decided not to place the children on the Child Protection Register. 23. On 5 March 1991 B was found to have “unusual” bruises on his back. 24. At a later social services meeting in April 1991, no change to the children's living conditions was noted. The head-teacher stated that Z and A were still taking food from bins and that A was becoming more withdrawn. Ms M. reported that the mother had stated that the children were taking food from the park bins on the way to school. 25. In July 1991 the applicants' mother informed social services that the children would be better off living in care. On 12 August 1991 the social services received a phone call from a neighbour who stated that the children were frequently locked outside in a filthy back garden, that they constantly screamed and that they were kept for long periods in their bedrooms where they smeared faeces on their windows. The maternal grandparents later told the guardian ad litem that Z, who was treated by her mother as a little servant, was expected to clean the excrement from the windows. 26. From 19 to 28 August 1991, the three older children spent some time with foster carers in respite care. The foster carers reported that A did not know how to wash, bathe or clean his teeth on arrival. He wet his bed every night and stole food from his brother. B was described as being “very frightened. He could not understand how he could play in the garden and the door was left open for him to come back in, he expected to be locked out”. He also had to be taught to use the toilet properly and to clean himself. 27. At a professionals' meeting on 18 September 1991, Ms M. stated that the conditions in which the boys were sleeping were deteriorating. The mattresses in the boys' bedroom were ripped and the springs were coming through. The boys were stealing food, and C had also been seen to do this. Their mother stated that she could not control them. It was decided not to arrange a child-protection meeting but to carry out a monthly weight check on the three older children at school, and for the health visitor to check the weight of the two younger children. It was also decided to arrange respite care for Z, A and B in the holidays as well as on one weekend in four. 28. In November-December 1991 C was found to have developed a squint. His mother failed to keep appointments at the eye-clinic over the following months. 29. At a professionals' meeting on 21 November 1991, it was reported that the applicants' mother had said that she could not control the applicants' behaviour which consisted of refusing to go to bed when asked and stealing food. It was considered that the home was in an acceptable condition, though the boys' room still needed attention. The children's weights were recorded. It was noted that Z had put on 2 lb in the previous two months whereas she had only put on 2.5 lb in the preceding two years. A had only put on 3 lb in a year. B had put on 0.5 lb in a year and was on the 50th centile for height. C was on the 25th centile for weight. There was a discussion about the three elder children being accommodated by the local authority to allow the mother “to get back on her feet”. The social services considered a six-week period whilst the general practitioner envisaged a period of eighteen to twenty-four months. 30. In December 1991 a social worker was introduced to the applicants' mother with a view to assisting her with shopping, budgeting and cooking. 31. Z, A and B were accommodated by volunteers between January and March 1992, and showed to have gained weight. In March and again in April, their mother asked if the boys, A and B, could be placed for adoption. 32. On 14 January 1992 C started to attend a nursery group at a family centre. She was noted to be unsocialised, lacking in confidence, unable to share, and with poor speech. 33. At a further professionals' meeting on 9 March 1992, it was decided that further respite care would be considered. The children's weights were noted, increases being seen for Z, A and B. 34. The children's parents divorced in April 1992. 35. At another professionals' meeting on 30 April 1992 it was decided that the applicants' mother's request that A and B be placed for adoption be followed up. The headmistress voiced concern over the fundamental pattern of the mother's care of the children, in particular in relation to Z's role in the home and the mothering role which she played. Ms M. reported that conditions were deteriorating for A and B. 36. On 10 June 1992 the applicants' mother demanded that the children be placed in care as she could not cope. She stated that if they were not removed from her care she would batter them. The applicants were placed in emergency foster care. The applicants were entered onto the Child Protection Register under the categories of neglect and emotional abuse after a child-protection meeting on 22 June 1992. 37. The applicants were all fostered separately. Initially, Z was noted to have dirty, ill-fitting clothes. She stated that she did not like living with her siblings as she did not like having to look after them all the time. A wet the bed every night, shunned physical contact and suffered from nightmares. B did not know how to use the toilet or toilet paper. C bonded very quickly with her foster parents. 38. On 8 October 1992 the local authority decided to seek care orders in respect of the children. Interim care orders were made on 7 December 1992. 39. A guardian ad litem, who was appointed on 18 January 1993, recommended that all the applicants should be the subject of care orders in order to protect them from further harm. She stated that there was “an abundance of evidence that the children have been subjected to physical and mental ill-treatment”. She noted that their health had also been neglected by their parents who frequently missed appointments with opticians and doctors. 40. All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother's behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”. 41. Full care orders were made in respect of the applicants on 14 April 1993 by Judge Tyrer sitting at Milton Keynes County Court. 42. In June 1993 the Official Solicitor, acting as the applicants' next friend, commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty arguing that the authority had failed to have regard to their welfare as was required by statute and should have acted more quickly and more effectively when apprised of their condition. It was argued that the local authority's failure to act had resulted in psychological damage. The application was struck out as revealing no cause of action, by Mr Justice Turner on 12 November 1993. 43. The applicants appealed to the Court of Appeal, which, on 28 February 1994, upheld the decision of Mr Justice Turner to strike out the application. 44. The applicants appealed to the House of Lords. On 29 June 1995 the House of Lords rejected their appeal, finding that no action lay against the local authority in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under the Children Act 1989 in respect of child care. The case is reported as X and Others v. Bedfordshire County Council [1995] 3 All England Law Reports 353. 45. Lord Browne-Wilkinson gave the leading judgment. In respect of claims for breach of statutory duty, he stated, inter alia: “... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ... When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.” 46. 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 AC 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 AC 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.” 47. Z and C, the two girls, were meanwhile adopted. The boys, A and B, were initially in foster care. Following the breakdown of B's adoptive placement, he was placed in a therapeutic residential placement in July 1995. After two years, he was again placed with foster parents where he remained, attending school in a special-needs group. In January 1996, A was placed in a therapeutic community, where he stayed for two years. He apparently had a number of foster placements which broke down. Records indicated that he had been in twelve different placements in eight years. He is currently in a children's home. 48. In March 1996, applications were made to the Criminal Injuries Compensation Board (CICB) on behalf of all the children by the adoption society to whom the local authority had delegated certain responsibilities. It was claimed on behalf of Z that she had suffered severe neglect and chronic deprivation which rendered it likely that specialist care would be necessary during her adolescence, a time where emotional repercussions of the abuse might become apparent; on behalf of A that he had suffered physical deprivation, emotional abuse, physical abuse and possible sexual abuse – he had suffered permanent physical scarring and was still receiving treatment from a child psychiatrist; on behalf of B that he had suffered extreme physical and emotional deprivation and shown signs of sexual abuse – he also had suffered permanent physical scarring and was receiving therapy; and on behalf of C that she had suffered extreme physical and emotional deprivation, and in addition that her need for eye treatment was not being met by her parents. 49. In February 1997, the CICB awarded 1,000 pounds sterling (GBP) to Z, GBP 3,000 to A and GBP 3,000 to B for injuries suffered between 1987 and 1992; it awarded GBP 2,000 to C for injuries suffered between 1988 and 1992. In a letter dated 20 May 1998 from the CICB to the Official Solicitor, it was stated: “The Board Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the Board could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury – physical or psychological – directly attributable to a crime of violence ... He was nevertheless satisfied, that setting aside 'neglect' the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child ...” 50. 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. Sections 1 and 2 of the Child Care Act 1980 provided that: “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.” 51. 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 I 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) ...; and in this Part 'development' means physical, intellectual, emotional, social or behavioural development; and 'health' means physical or mental health.” 52. 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. 53. 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.” 54. 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).” 55. The complaints procedure is provided by section 26 of the Children Act 1989: “Review of cases and inquiries into representations ... (3) Every local authority shall establish a procedure for considering any representations (including any complaint) made to them by - (a) any child ... who is not being looked after by them but is in need; (b) a parent of his; ... (e) such other person as the authority consider has a sufficient interest in the child's welfare to warrant his representations being considered by them, about the discharge by the authority of any of their functions under this Part in relation to the child. (4) The procedure shall ensure that at least one person who is not a member or officer of the authority takes part in - (a) the consideration; and (b) any discussions which are held by the local authority about the action (if any) to be taken in relation to the child in the light of this consideration. ... (7) Where any representation has been considered under the procedure established by the local authority under this section, the authority shall - (a) have due regard to the findings of those considering the representation; and (b) take such steps as are reasonably practicable to notify (in writing) - (i) the person making the representation; (ii) the child (if the authority consider that he has sufficient understanding); and (iii) such other persons (if any) as appear to the authority to be likely to be affected, of the authority's decision in the matter and their reasons for taking that decision and of any action which they have taken, or propose to take. (8) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate.” 56. The powers of the Secretary of State to investigate the actions of the local authority are set out in sections 81 and 84 of the Children Act 1989. “81. (1) The Secretary of State may cause an inquiry to be held into any matter connected with - (a) the function of the social services committee of a local authority, in so far as those functions relate to children; ... 84. Local authority failure to comply with statutory duty: default power of Secretary of State (1) If the Secretary of State is satisfied that any local authority has failed, without reasonable excuse, to comply with any of the duties imposed on them by or under this Act he may make an order declaring that authority to be in default with respect to that duty. ... (3) Any order under subsection (1) may contain such directions for the purpose of ensuring that the duty is complied with, within such period as may be specified in the order, as appears to the Secretary of State to be necessary. (4) Any such directions shall, on the application of the Secretary of State, be enforceable by mandamus.” 57. In England and Wales there is no single tort which imposes liability to pay compensation for civil wrongs. Instead there is a series of separate torts, for example, trespass, conversion, conspiracy, negligence and defamation. 58. 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. These criteria apply to claims against private persons as well as claims against public bodies. The leading case is Caparo Industries plc v. Dickman ([1990] 2 Appeal Cases 605). 59. 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. 60. The decision in X and Others v. Bedfordshire County Council ([1995] 3 All England Law Reports 353) is the leading authority in the United Kingdom in this area. It 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 leading judgment is reported at length in the facts above (see paragraphs 45-46 above). 61. Since X and Others v. Bedfordshire County Council, there have been two further significant judgments regarding the extent of liability of local authorities in child care matters. 62. The Court of Appeal gave judgment in W. and Others v. Essex County Council ([1998] 3 All England Law Reports 111). This case concerned the claims by a mother and father (first and second plaintiffs), who had agreed to act as foster parents, that the defendant local authority placed G., a 15-year-old boy, in their home although they knew that he was a suspect or known sexual abuser. During G.'s stay in their home, the plaintiffs' three children (fourth to sixth plaintiffs) were all sexually abused and suffered psychiatric illness. The plaintiffs brought an action against the local authority and the social worker involved, claiming damages for negligence and for negligent misstatement. On the defendants' application to strike out the statement of claim as disclosing no reasonable cause of action, the judges struck out the parents' claims but refused to strike out the claims of the children. The Court of Appeal upheld his decision. The headnote for the judgment summarised the Court of Appeal's findings as follows: “(1) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion, if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred, there was no a priori reason for excluding common law liability. In the instant case, the giving of information to the parents was part and parcel of the defendants' performance of their statutory powers and duties, and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion. Accordingly, since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity, the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker. Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk, that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate, that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed, that the relationship between parents and social workers was frequently one of conflict and that the plaintiff children's injuries were compensatable under the Criminal Injuries Compensation Scheme, it was not just and reasonable to do so. It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ... (2) (Stuart-Smith LJ dissenting) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty. Accordingly, since in the instant case, the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents, and express assurances had been given that a sexual abuser would not be placed in their home, their claim should proceed ...” 63. On further appeal by the parents, the House of Lords on 16 March 2000 held that it was impossible to say that the psychiatric injury allegedly suffered by the parents, flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier, was outside the range of psychiatric injury recognised by the law, nor was it unarguable that the local authority had owed a duty of care to the parents. The parents' claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed. 64. The House of Lords gave judgment on 17 June 1999 in Barrett v. London Borough of Enfield ([1999] 3 Weekly Law Reports 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to 17 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 judgment in 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. 65. 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.” 66. 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”. 67. 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. 68. The striking out procedure, now contained in Part 3.4(2) of the Civil Procedure Rules in force since 1999, is regarded as an important feature of English civil procedure, performing the function of securing speedy and effective justice, inter alia, by allowing a court to decide 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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001-72481
|
ENG
|
UKR
|
CHAMBER
| 2,006
|
CASE OF ZHERDIN v. UKRAINE
| 4
|
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
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Zoryana Bortnovska
|
8. The applicant was born in 1961 and lives in Kramatorsk, Ukraine. 9. On 13 April 2000 the Kramatorsk City Court (the “Kramatorsk Court”) ordered the OJSC “Teploenergomontazh” (the “TEM”) to pay the applicant UAH 5,949.11 in compensation for salary arrears. 10. On 27 July 2000 the Donetsk Regional Court (the “DRC”) upheld this judgment. 11. According to the documents submitted by the Government, the judgment of 13 April 2000 was enforced in full on 30 November 2000. The enforcement proceedings were terminated on the same date. 12. On 13 December 2000 the Presidium of the DRC allowed the protest filed by its President, following the defendant company’s request for a supervisory review, quashed the judgment of 13 April 2000 and the ruling of 27 July 2000, and remitted the case to the Kramatorsk Court for a fresh consideration. 13. The relevant domestic law and practice in relation to supervisory review proceedings is summarised in the case-law of the Court (see Svetlana Naumenko v. Ukraine, no. 41984/98, § 65, 9 November 2004; Tregubenko v. Ukraine, no. 61333/00, §§ 29-30, 2 November 2004; Poltorachenko v. Ukraine, no. 77317/01, § 21, 18 January 2005).
| 1
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train
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001-57866
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ENG
|
ESP
|
CHAMBER
| 1,994
|
CASE OF CASADO COCA v. SPAIN
| 2
|
No violation of Art. 10
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John Freeland;N. Valticos
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6. Mr Pablo Casado Coca, a Spanish national, lives at Valldoreitx, near Barcelona, and practises as a lawyer (abogado) in Barcelona. 7. After setting up his practice in 1979, he regularly placed notices advertising it in the "miscellaneous advertisements" pages of several Barcelona newspapers and the Revista alemana de España ("German Journal of Spain"). He also wrote to various companies offering his services. 8. The Barcelona Bar Council (Junta de Govern del Col.legi d’Advocats) brought disciplinary proceedings against him four times on this account, and in 1981 and 1982 these led to the imposition of penalties, namely two reprimands and two warnings. The applicant lodged internal appeals against these penalties but did not apply to the competent courts. 9. From October 1982 notices giving details of the applicant’s legal practice were published in the newsletter of the Valldoreitx Residents’ and Property Owners’ Association. They took up approximately one-third of a page and gave the applicant’s name, with the title "lawyer" (letrado), and his office address and telephone number. 10. The Barcelona Bar Council brought further disciplinary proceedings against Mr Casado Coca on this account. On 6 April 1983 he again received a written warning for disregarding the ban on professional advertising (Article 31 of Royal Decree no. 2090/82 of 24 July 1982, laying down the Statute of the Bar - see paragraph 22 below). 11. On 3 June 1983, following an internal appeal by the applicant, the National Bar Council (Consejo general de la Abogacía) upheld the penalty imposed. Referring to Article 31 of the Statute of the Bar as amplified in the relevant rules of the Barcelona Bar Council (see paragraphs 22, 24 and 27 below), it held that, given their nature, the notices in question went beyond the defined limits. It also pointed out that the applicant had recently incurred other disciplinary penalties for the same reason, and these had to be taken into consideration when ruling on the appeal. 12. Mr Casado Coca then applied to the Barcelona Audiencia Territorial. He argued in particular that the purpose of his notice was to inform the public and that the warning infringed Article 20 of the Constitution, which guaranteed the right to freedom of expression. He also alleged that the principle that only a statute could define offences and lay down penalties had been contravened because the provisions which prohibited advertising by members of the Bar and attached disciplinary penalties were regulatory in nature. The court dismissed his application on 11 May 1987, holding that the notice in question was a vehicle for advertising and not simply an announcement of information. It appeared beside similar announcements by a driving school and an old people’s home and went beyond the limits laid down in the Bar’s rules, which allowed notices only to announce the setting up of a practice or a change of address; this was not the applicant’s case. 13. On 23 September 1988 the Supreme Court dismissed an appeal on points of law by Mr Casado Coca and at the same time refused to refer the case to the Constitutional Court on grounds of unconstitutionality. It rejected the ground of appeal based on disregard of the principle that only a statute could define offences and lay down penalties. It did so by reference to the case-law of the Constitutional Court, according to which Article 36 of the Constitution (see paragraph 18 below) makes it permissible for statute law to provide that the rules governing professional associations and the practice of the professions may be laid down by means of regulations. It held that Article 20 did not protect advertising as a fundamental right, because advertising was not a matter of expressing thoughts, ideas or opinions but of announcing the existence of a profit-making business activity. Moreover, the ban on professional advertising by members of the Bar had legitimate aims, namely to uphold free competition and to protect clients’ interests. In such a case the right in question could be subject to restrictions. 14. The applicant then lodged an appeal (recurso de amparo) with the Constitutional Court. He again maintained that it was contrary to the principle of statutory definition of offences and prescription of penalties enshrined in the Constitution to lay down administrative penalties by means of a decree, and that since the notice set out genuine information, i.e. his name, address and telephone number, the penalty imposed contravened Article 20 of the Constitution. 15. On 17 April 1989 the Constitutional Court declared the appeal inadmissible. It held that the penalty complained of did not infringe the fundamental right to communicate genuine information. The aim of the advertising was connected with the "carrying on of a commercial, industrial, craft or professional activity"; it consisted in "directly or indirectly promoting the conclusion of contracts relating to movable or immovable property, services, rights or obligations", whereas the purpose of the fundamental right defined in Article 20 para. 1 (d) was to enable citizens to "form their beliefs by weighing different or even diametrically opposed opinions and thus taking part in the discussion of public affairs". The ban on advertising professional services did not infringe the fundamental right in question. 16. Article 20 of the Constitution guarantees the right to freedom of expression: "1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction; ... (d) the right to receive and communicate true information by any means of dissemination. The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute. 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children." 17. Article 25 enshrines the principle that only a statute can define offences and lay down penalties: "1. No one may be convicted or punished for any act or omission which at the time it was committed did not constitute, under the legislation in force at that time, a criminal offence, whether serious or petty, or an administrative offence. ..." 18. Article 36 deals with professional associations: "The special features of the legal status of professional associations and the practice of professions requiring a university degree shall be laid down by statute. The internal structure and functioning of associations must be democratic." According to the case-law of the Constitutional Court, this Article does not preclude a statutory provision that rules governing professional associations and the practice of the professions are to be laid down in administrative regulations (judgments of 20 February and 24 September 1984). 19. The Constitution states that any previous provisions contrary to it are repealed. 20. Law no. 2/1974, which was published in the Spanish Official Gazette of 15 February 1974, governs the functioning and organisation of professional associations. Section 1 provides: "Professional associations are public-law corporations, protected by law and recognised by the State, enjoying legal personality and having full capacity to act in pursuit of their objectives." 21. Section 5 (i) makes the professional associations responsible for regulating their members’ professional activities, for ensuring that professional ethics and dignity are upheld and that the rights of private individuals are respected, and for exercising disciplinary powers in professional and internal matters. To these ends, the relevant national councils adopt statutes, which are approved by the Government. These statutes lay down the rights and duties of the members of each profession and the disciplinary rules applicable to them. 22. Royal Decree 2090/82 laying down the Statute of the Spanish Bar (Estatuto general de la Abogacía Española) was published in the Spanish Official Gazette on 2 September 1982. "Members of the Bar are not allowed to (a) announce or circulate information about their services directly or through advertising media, ... or express opinions free of charge in professional journals or other publications or media without permission from the Bar Council; ..." Articles 107-112 govern the disciplinary powers of Bar councils. An appeal against penalties lies to the National Bar Council (Article 96 para. 1) and subsequently to the competent courts (Article 99). 23. At sessions held on 5-6 March, 21-22 May and 25 June 1993 the Assembly of the Chairmen of the Spanish Bars adopted the draft of a new national Statute, which has been submitted to the Government for approval. Article 31 of the draft Statute provides: "1. Members of the Bar may advertise their services and practices in accordance with the legislation in force, this Statute and other rules and decisions of the Bar. 2. Direct or indirect advertising of individual members of the Bar and their services and participation by the former in legal advice programmes in the media shall be subject to certain conditions. Members of the Bar must (a) comply with the special provisions applicable to practice at the Bar as well as with the current legislation on advertising; (b) show regard for truth, rigour and exactness without detracting from other members’ advertisements by imitating them or inviting confusion with them, without lapsing into self-praise and comparisons with or denigration of their colleagues and without citing their own professional successes, their clientele or the financial terms on which they provide services; and (c) request the relevant Bar council’s prior authorisation for the proposed advertisement, specifying its content and the way in which it will be published. The Bar council may grant authorisation, make it subject to certain amendments or refuse it. In all cases, it shall give a reasoned decision that can be challenged in accordance with the procedure laid down in Articles 130 et seq. of this Statute and shall be communicated to the member of the Bar making the request within not more than thirty days of that request, failing which the council shall be deemed to have given its tacit consent. 3. Notwithstanding the above, members of the Bar may, without seeking prior authorisation, (a) use a letterhead stating their name, profession and university degrees, or those of their partners, and the name, telephone number and other particulars of their chambers, in the form customarily used by members of the Bar; (b) affix to the outside of the building in which they have their chambers or their private residence and to the door of their chambers or nearby, a sign or plate announcing their practice, of the size and kind usual in the area of the Bar; (c) have their status as a member of the Bar included in telephone, fax, telex and other directories; (d) announce by letter or in the press any changes of address, telephone number or other particulars of their chambers, likewise in the form customarily used by members of the Bar to which they belong; and (e) take part in conferences and symposia, mentioning their membership of the Bar, publish articles in the specialist and non-specialist press and make statements on radio or television. 4. Members of the Bar who continuously or occasionally provide services to individuals or companies must require them to refrain from any advertising that does not comply with the provisions of this Statute. 5. The Bar council shall rule on allegedly doubtful or unforeseen cases and violations of provisions governing advertising or any misuse of rights derived from the rules in this Statute. It may expressly prohibit practices it deems contrary to the spirit of this Statute and punish any breaches of such prohibitions." 24. At the time when the penalty was imposed on the applicant, the 1947 Statute of the Barcelona Bar (Estatutos del Colegio de Abogados de Barcelona) was still in force. Article 18 quite simply prohibited members of the Bar from advertising, in the following terms: "Members of the Bar are forbidden to publish notices relating to the practice of their profession as a means of advertising or propaganda." 25. Being of the view that the ban on advertising was an important rule of professional conduct, the Barcelona Bar Council adopted a decision on 24 February 1981 on "Members of the Bar and advertising" (Acord sobre "Els advocats i la publicitat"), which provided, inter alia: "1. General principle It is forbidden for members of the Bar to undertake any direct or indirect personal advertising intended to attract clients. ... 2. Authorised notices Members of the Bar may publish small notices in local daily newspapers in order to announce the setting up of their practices or changes in membership or of address, telephone number or telex number. The size and content of notices must be approved in advance by the Bar Council. They may not appear more than three times during a maximum period of two months. ... 6. Professional directories Members of the Bar may publish their names, addresses, telephone numbers and telex numbers, with a brief indication of the type of professional services offered, in professional directories, provided that all members of the Bar have the same access to these. ..." 26. A new Statute of the Barcelona Bar (Estatuts del Il.lustre Col.legi d’Advocats de Barcelona) was published in the Catalonia Official Gazette of 5 June 1985. Article 19 provides: "1. It is forbidden for members of the Bar to undertake any personal advertising intended to secure clients, whether directly or indirectly. 2. It is also forbidden for members of the Bar to consent either expressly or tacitly to any form of advertising offered to them. 3. The foregoing prohibition shall cover both advertising by word of mouth and written or graphic advertising in any form and of any kind. It shall also apply to advertising by means of radio or television broadcasts. ... 5. The Bar Council may adopt rules to deal in greater detail with the matters covered in this Article." Failure to comply with the provisions of the Statute constitutes serious or minor misconduct, depending on the circumstances, and may lead to penalties being imposed (Articles 94 to 96 of the Statute). 27. On 5 February 1985 the Bar Council amended the rules laid down in its 1981 decision (see paragraph 25 above) by forbidding members of the Bar to send press releases involving personal advertising to the media. 28. On 4 July 1991 the Council of the Catalonia Bars (Consell dels Col.legis d’Advocats de Catalunya) adopted new rules on advertising. These superseded the earlier rules included in the statutes and decisions of the Catalonia Bars (Rule 6). The preamble states: "Advertising by members of the Bar is traditionally considered to be more or less incompatible with professional ethics. However, it is obvious that advertising, provided it does not go beyond certain limits, does not offend the vital principles of the profession’s code of ethics, namely probity and independence. Today information is one of the foundations of democratic countries and a right for users of a service. ..." Rules 2 and 3 make a distinction in this field: "Rule 2 Authorised advertising Members of the Bar may ... (b) publish documents, circulars or articles on legal subjects, even in publications not specialising in law, bearing their signature and indicating the author’s status as a member of the Bar; (c) express their personal opinions in the media on subjects of public interest or on cases in which they are involved professionally, taking care at all times to maintain professional secrecy; (d) publish brochures giving details of their practices, the members of the Bar who work there and the types of case handled. This publicity material must be approved in advance by the Bar Council. They may also publish information circulars on legal topics. The brochures and circulars referred to in this paragraph may be distributed only to clients and not to third parties; ... " "Rule 3 Unauthorised advertising Members of the Bar may not advertise otherwise than as allowed under the terms of the preceding Rule. In particular, they may not (a) advertise their services by making known their professional successes, giving the names of their clients or comparing themselves with other members of the Bar or by allowing others so to act without objecting; (b) send brochures, circulars or other documents or offer their services to persons other than clients; ... (e) advertise in the press or on radio or television except as allowed under Rule 2."
| 0
|
train
|
001-58525
|
ENG
|
POL
|
CHAMBER
| 2,000
|
CASE OF BARANOWSKI v. POLAND
| 1
|
Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Elisabeth Palm
|
7. On 1 June 1993 the applicant was arrested by the police. On the next day the Łódź Regional Prosecutor (Prokurator Wojewódzki) charged him with fraud and detained him on remand on the grounds specified in Article 217 § 1 (2) and (4) of the Code of Criminal Procedure of 1969. On 25 June 1993 the Łódź Regional Court (Sąd Wojewódzki), ruling on the applicant's appeal, upheld the detention order. 8. On 10 August 1993 the Łódź Regional Court, at the prosecutor's request, prolonged the applicant's detention until 31 December 1993. The court based its ruling on the grounds originally given for his detention and the fact that the investigation had not been completed since further evidence needed to be obtained. 9. On 30 December 1993 the Łódź Regional Court, on a further request by the Łódź Regional Prosecutor, prolonged the applicant's detention on remand until 31 January 1994. The court relied on the same grounds as those mentioned in its decision of 10 August 1993. On 7 January 1994 the applicant lodged an appeal against the decision prolonging his detention. 10. Shortly afterwards, on an unspecified date, the investigation was completed. Subsequently, on 11 January 1994, the Łódź Regional Prosecutor lodged a bill of indictment with the Łódź Regional Court. 11. On 21 January 1994 the Łódź Regional Court referred the applicant's appeal of 7 January 1994 to the Łódź Court of Appeal (Sąd Apelacyjny). On 1 February 1994 the Court of Appeal held that it “was purposeless” to examine this appeal and decided that it should be deemed to be an application for release. The court observed that a decision on the prolongation of detention on remand was necessary only at the investigation stage. Therefore, after the investigation was completed and the bill of indictment was lodged, the applicant could simply file an application for release at any time with the court competent to deal with his case, pursuant to Article 214 of the Code of Criminal Procedure. As a consequence of that decision, the appeal was referred back to the Łódź Regional Court. The applicant was informed thereof on 18 February 1994. However, in the subsequent proceedings, the Łódź Regional Court did not examine the appeal in question either as an application for release under Article 214 of the Code of Criminal Procedure or under any other head. 12. Meanwhile, on 1 February 1994, the applicant had filed a formal petition with the Łódź District Prosecutor (Prokurator Rejonowy). He informed the prosecutor that the order for his detention had expired on 31 January 1994, so that his continued detention had become unlawful and unfounded. 13. Later, on 7 February 1994, the applicant lodged an application for release with the Łódź Regional Court, arguing, in particular, that he should be released in view of the bad state of his health. On 8 February 1994 the court, sitting in camera, ordered that the authorities of the prison hospital at the Łódź Remand Centre submit a medical report on the applicant's current state of health. It adjourned the examination of the application without fixing a date for a further session. 14. It appears that the applicant repeatedly complained to the authorities that his detention under the bill of indictment had become unlawful since, on 16 February 1994, in reply to those complaints, J.L., the President of the Criminal Division of the Łódź Regional Court, sent a letter to the applicant, the relevant part of which read as follows: “The Łódź Regional Court hereby informs the accused that, since the bill of indictment was submitted to the Łódź Regional Court, the Łódź Regional Prosecutor placed the detainee at the disposal of that court. ... From then on, the accused has been at the Łódź Regional Court's disposal [and will be] until the detention order is quashed (at the [applicant's] or his lawyer's request, or [at the request of] the Łódź Remand Centre's administration – for instance on the ground of his bad state of health). In case an application for release is not allowed, detention may continue until the first-instance judgment is delivered. In such cases, after the delivery of the judgment, the court makes a decision on whether detention shall continue further. Therefore, the accused's assertion that his detention [order] has expired is unjustified ...” 15. On 18 February 1994 doctors from the prison hospital submitted the report requested by the trial court. They stated that the applicant could undergo medical treatment in that hospital. They suggested, however, that he be examined by a cardiologist, a psychiatrist and a neurologist. 16. On 25 February 1994 the court again adjourned the examination of the application for release, finding that reports from the said medical experts had to be obtained to establish whether the applicant should be released on health grounds. 17. On 28 March 1994 the applicant filed another application for release with the Łódź Regional Court. 18. On 29 March 1994 an expert cardiologist submitted a report to the court. On 1 April 1994 the court found it necessary to place the applicant in the prison hospital but adjourned its decision on his applications for release until the expert psychiatrist and neurologist had submitted their joint report. The report was ready on 28 April 1994; however, on 6 May 1994, the court, at the request of the Łódź Regional Prosecutor, again adjourned the examination of the applications and ordered that certain – unspecified – evidence concerning the state of the applicant's health be obtained. 19. On 24 May 1994 the court ruled on the applications for release dated 7 February and 28 March 1994 respectively. It held that no circumstances justified altering the preventive measure in issue. The decision was based on Articles 209 and 217 § 1 (2) and (4) of the Code of Criminal Procedure. On 5 July 1994 the Łódź Court of Appeal, ruling on the applicant's appeal, upheld that decision. 20. In the meantime, since 16 February 1994, the applicant had been requesting the Łódź Regional Court to give an interpretation of the detention order of 30 December 1993, in particular as to whether or not that order had remained enforceable after its expiry. He lodged these requests under Article 14 of the Code of Execution of Criminal Sentences on the following dates: 16 and 25 February, 4 March, 8 and 18 April, 20 and 30 May, and 25 October 1994. The applicant argued that the fact that the indictment had been lodged with the court did not mean that his detention automatically continued after 31 January 1994. He further submitted that no provision of the Code of Criminal Procedure provided that detention was prolonged as a result of the transfer of the case to the court. He asserted that the order of 30 December 1993 was not enforceable as he had lodged an appeal against it. The applicant concluded that he should have been released immediately after 31 January 1994 because his detention as from that date lacked any legal basis. 21. On 21 December 1994 the Łódź Regional Court sitting with a single judge rendered a decision on all the above requests. The court held that the decision of 30 December 1993 to prolong the applicant's detention until 31 January 1994 was enforceable, despite the fact that the applicant had lodged an appeal against it. The judge further reiterated the arguments set out in the letter to the applicant of 16 February 1994. 22. On 29 December 1994 the applicant appealed. He submitted that the court should have been composed of three judges in accordance with the relevant provisions of the Code of Criminal Procedure. He again argued that there was no legal basis for keeping him in detention after 31 January 1994. On 3 January 1995 a panel of three judges of the Łódź Regional Court quashed the contested decision. The court found that the firstinstance court should have been composed of three judges, as submitted by the applicant. However, it also held that Article 14 of the Code of Execution of Criminal Sentences was not applicable in the applicant's case since that provision applied only to cases involving doubts concerning the execution of the sentence or the calculation of the penalty imposed and not to the execution of detention orders. 23. On 10 January 1995 the applicant appealed. On 16 January 1995 the President of the Criminal Division of the Łódź Regional Court issued an order refusing to allow the applicant's appeal on the basis that it was inadmissible in law. The applicant filed a further appeal against that decision. On 17 February 1995 the Łódź Regional Court upheld the decision of 16 January 1995, considering that it had been open to the applicant to file an appeal against the decision of 21 December 1994, but that any further appeal was inadmissible in law since Article 14 of the Code of Execution of Criminal Sentences did not apply to a detainee. 24. On 22 October 1996 the Łódź Regional Court quashed the detention order and released the applicant under police supervision. The criminal proceedings against the applicant are still pending in the court of first instance. 25. At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”). 26. The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures including, inter alia, detention on remand, bail and police supervision). Until 4 August 1996 (that is, the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the time the national law did not set out any statutory timelimits concerning the length of detention on remand in court proceedings; however, under Article 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered. That Article stated (in the version applicable at the material time): “Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.” The relevant part of Article 222 of the Code of Criminal Procedure (in the version applicable at the material time) stated: “1. The prosecutor may order detention on remand for a period not exceeding three months. (1) the court competent to deal with the case, at the prosecutor's request, for a period not exceeding one year; (2) the Supreme Court, at the request of the Prosecutor General, for such further fixed term as is required to terminate the investigation.” 27. The courts, when ruling on a prosecutor's request under Article 222 § 2 of the Code, were obliged to determine the precise period for which detention should 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. 28. Article 213 § 1 of the Code of Criminal Procedure provided: “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.” 29. Article 217 § 1 (2) and (4) (in the version applicable at the material time) provided: “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.” 30. At the relevant time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court. Since 4 August 1996, the date of entry into force of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes and under the present criminal legislation, the courts have been and are bound by the maximum statutory time-limits for which detention on remand can be imposed during the entire course of the proceedings. In particular, at the material time, there was no provision stating that the lodging of a bill of indictment automatically prolonged or replaced a 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 domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial without any further judicial decision being given. 31. It was as late as 6 February 1997 that the Supreme Court, referring to the historical background to the amended criminal legislation, mentioned the practice of keeping an accused in detention under the bill of indictment. It did so in a ruling on the interpretation of the Code of Criminal Procedure. That ruling did not, however, concern criminal legislation as it stood at the material time but related to the Code as amended with effect from 4 August 1996, when Article 222 (as amended) set out maximum time-limits for detention on remand not only at the investigation stage but at the whole pre-trial stage. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after the lodging of a bill of indictment with the court competent to deal with 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.” 32. 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 (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...” 33. Articles 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements for a bill of indictment, stipulated 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, a statement of the offence with which he had been charged, a detailed description of the facts of the case along with a statement of reasons for the charges, an indication of the court competent to deal with the case and evidence on which the charges were based. 34. Once the bill of indictment had been lodged with the court, the president of the court carried out preparations for the main trial. Article 299 § 1 (6) of the Code of Criminal Procedure provided: “1. The president of the court, ex officio or at the request of a party, shall refer the case to a court session if he finds that its resolution lies beyond his own competence, in particular: ... (6) when there is a need to issue an order on a preventive measure.” 35. However, at the material time, according to the relevant domestic practice in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court, the courts did not make use of the procedure prescribed by the above-mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and, therefore, there was no need to issue a separate decision prolonging the detention. 36. Also, at the time, the Code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee's application for release. 37. As regards the last of these, Article 214 of the Code of Criminal Procedure (in the version applicable at the material time) stated: “An accused may at any time apply to have a preventive measure quashed or altered. Such an application shall be decided by the prosecutor or, after the bill of indictment has been lodged, by the court competent to deal with the case, within a period not exceeding three days.” No provision of the Code stipulated that exceeding the time-limit laid down in that Article would have any legal consequence. 38. The interpretation of enforceable decisions in criminal proceedings was at the relevant time governed by the provisions of the Code of Execution of Criminal Sentences of 1969. 39. Article 14 of that Code provided: “1. The authority executing a decision, as well as everyone whom such a decision concerns, may request the court which has dealt with the case to rule on any doubts concerning the execution of that decision or the calculation of the penalty imposed. 2. Everyone whom the decision on interpretation referred to in paragraph 1 concerns may appeal against such a decision.” 40. According to Article 205 of the Code of Execution of Criminal Sentences, provisions of the Code referring to a “convicted person” applied by analogy to a “detainee”. However, in the light of domestic practice and legal theory, it was considered doubtful whether Article 14 of the Code applied to cases in which a person detained on remand challenged the lawfulness of his detention since such a challenge was normally examined in the proceedings prescribed by the Code of Criminal Procedure (see paragraphs 36-37 above). 41. Proceedings relating to a request under Article 14 of the Code of Execution of Criminal Sentences were designed to obtain an interpretation of an enforceable decision which had not been formulated with adequate precision. The court which was called upon to interpret the decision in question was not competent to amend or supplement its operative part (see the decision of the Supreme Court (no. VI KRN 14/76) of 2 March 1976, OSNPG 1976/6/59). That being so, the person concerned could not obtain his release by lodging a request under Article 14 of the Code.
| 1
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train
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001-67700
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,004
|
VAN THUIL v. THE NETHERLANDS
| 4
|
Inadmissible
|
David Thór Björgvinsson
|
The applicant, Gijsbert Bertus van Thuil, is a Netherlands national, who was born in 1952 and lives in Amsterdam. He is represented before the Court by Mr S.T. van Berge Henegouwen, a lawyer practising in Maastricht. In 1992, 1993 and 1994 the applicant's name appeared in various criminal investigations that were being conducted. On 19 January 1993 a preliminary judicial investigation (gerechtelijk vooronderzoek) was opened against the applicant on suspicion of narcotics and other drug related offences. A further preliminary judicial investigation was opened against him in February 1994. These investigations eventually resulted in a total of eleven charges being brought against the applicant. The first charge, insofar as relevant, read as follows: “1. that he, in or around the period from 1 September 1993 to 25 February 1995 in Amsterdam and/or elsewhere in the Netherlands and/or in Spain, has participated in an organisation having as its aim the commission of criminal offences and/or of which organisation he, [the] accused, was actually in charge (“aan welke organisatie, hij verdachte, feitelijke leiding heeft gegeven”); that organisation consisted of a group of persons, namely [the accused] and/or [five co-accused] and/or one or more others who were (each time) involved in [offences involving synthetic drugs and cocaine, an unlawful deprivation of liberty and/or threats to life]; those crimes concerned (each time) intentional acts in violation of [the provisions of the Opium Act (Opiumwet) and/or the provisions of the Criminal Code (Wetboek van Strafrecht)]; [constituting a punishable offence under] Article 140 § 1 of the Criminal Code” The remaining charges concerned: - the exportation of synthetic drugs, together with others or alone, from the Netherlands to Spain between 1 May 1994 and 30 June 1994 (charge no. 2); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 29 June 1994 and 7 July 1994 (charge no. 3); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to the United Kingdom between 10 February 1994 and 21 July 1994 (charge no. 4); - the exportation of synthetic drugs, together with others or alone, from the Netherlands to Germany between 1 August 1994 and 31 August 1994 or, alternatively, the possession of, transporting of and/or trafficking in synthetic drugs in the Netherlands during that period (charge no. 5); - the production of, transporting of and/or trafficking in synthetic drugs in the Netherlands between January 1994 and 10 October 1994 (charge no. 6); - the production and/or possession of synthetic drugs, together with others or alone, in the Netherlands between 1 January 1994 and 27 February 1995 (charge no. 7) - the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 November 1993 and 4 February 1994 or, alternatively, having provided others with the necessary means for committing these offences (charge no. 8); - the production, possession and/or transporting of synthetic drugs, together with others or alone, in the Netherlands between 1 September 1994 and 31 January 1995 (charge no. 9); - the exportation of cannabis and/or hashish, together with others or alone, from the Netherlands to the United Kingdom between 1 July 1992 and 31 August 1992 (charge no. 10); and - having unlawfully deprived, together with others or alone, a person of his liberty between 16 and 19 July 1994 (charge no. 11). On 23 February 1995, the applicant was taken into detention in Spain on the basis of a Netherlands request for his extradition. Following extradition proceedings in Spain, the applicant was extradited on 20 August 1996 to the Netherlands, where he was placed in pre-trial detention. He was summoned to appear on 29 November 1996 before the Regional Court (arrondissementsrechtbank) of The Hague in order to stand trial on the aforementioned charges. In the course of the hearing held on 18 April 1997 before the Regional Court, the public prosecutor amended, inter alia, the first charge by replacing the phrase “and/or of which organisation he, [the] accused, was actually in charge” with “whereas the accused, within that organisation, has fulfilled the role of director” (“terwijl hij, verdachte, binnen die organisatie een rol als bestuurder heeft vervuld”) and by replacing the reference to Article 140 § 1 of the Criminal Code with a reference to Article 140 §§ 1 and 3 of the Criminal Code. In its judgment of 17 July 1997, the Regional Court declared the prosecution inadmissible in respect of the sixth, seventh, eight and ninth charges, finding that, during the criminal investigations, the authorities had used an infiltrator whose deployment and activities had not been duly recorded, thus rendering any subsequent control impossible. Although it found that the public prosecutor who had issued the summons against the applicant had not been aware of the role of the infiltrator at the outset, it was established that the prosecution had become aware of the matter before the hearing of 18 April 1997, whereupon the prosecutor should have notified the Regional Court of this without delay. It held that, in these circumstances, there had been a serious breach of the principles of proper trial procedure (beginselen van een behoorlijke procesorde) for which only the most severe sanction was appropriate, namely to declare inadmissible the prosecution of these charges. It further declared the prosecution inadmissible in respect of that part of the first charge which had been amended by the prosecution on 18 April 1997, i.e. the factor that the applicant had acted as the director of the criminal organisation. It agreed with the defence that this point had not been examined in the Spanish extradition proceedings whereas, pursuant to Article 14 § 3 of the European Convention on Extradition, it should have been determined whether the charge as amended would have allowed extradition. The Regional Court convicted the applicant of participation in a criminal organisation. He was also convicted on the second, third, fourth, fifth, tenth and eleventh charges. It acquitted him of the remaining charges and sentenced him to ten years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands. The applicant filed an appeal with the Court of Appeal (gerechtshof) of The Hague and, in this connection, requested the public prosecutor, by letter of 13 January 1998, to summon numerous witnesses, including the police officers X and Y who had acted as “runners” for Mr Z, the civilian infiltrator who had been deployed in the different investigations which had led to the institution of criminal proceedings against the applicant. The Court of Appeal commenced its examination on 4 February 1998. In the course of eleven hearings held between 18 February 1998 and 8 September 1998, the Court of Appeal heard a total of twenty-eight witnesses, including ten police officers, three public prosecutors and an investigating judge (rechter-commissaris). Although the Court of Appeal had accepted the applicant's request to take oral evidence from the police officers X and Y, they failed to appear. In the course of the proceedings, the public prosecutor informed the Court of Appeal that, given their current mental health, the two police officers were unable to undergo questioning. This contention was supported by medical opinions drawn up by a police medical officer, a psychologist and a psychiatrist. Considering that it was pointless to summon these witnesses again, the Court of Appeal rejected the applicant's request to this effect. At the hearing held on 14 September 1998, the Court of Appeal heard the parties' final pleadings and set a date for judgment. In its judgment of 28 September 1998, the Court of Appeal quashed the Regional Court's judgment of 17 July 1997. As regards the request by the defence to reconsider its decision not to pursue efforts to hear the witnesses X and Y, the Court of Appeal held that the arguments put forward by the defence were insufficient for such reconsideration. In reaching this finding, the Court of Appeal took into account that it had obtained extensive information about the activities of Z as an infiltrator by other means, such as the statements given by X and Y to the State Criminal Investigation Department (Rijksrecherche), a nine page fax message sent by Z to the Kennemerland Regional Criminal Intelligence Service (Criminele Inlichtingendienst) containing a “report on activities concerning Amsterdam”, copies of internal notes containing information conveyed to the investigating authorities by Z and the statements given by X and Y to the Zutphen investigating judge. It also rejected the argument that the prosecution should be declared inadmissible on account of the State's failure to secure the appearance of these two police officers. Although it found the situation to be highly unsatisfactory, it had not been established that this was the result of an intentional obstruction of judicial proceedings by the police officers concerned or their superiors. It further considered that, in view of the results of the investigation at trial, the interest of the defence in hearing both “runners” had diminished during the course of the proceedings, although the investigation at trial had not been complete. It upheld the decision of the Regional Court to declare the prosecution inadmissible regarding the applicant's purported role as the director of a criminal organisation, given that this had not been raised in the Spanish extradition proceedings. It further declared the prosecution inadmissible in respect of the fourth, sixth, seventh, eighth and ninth charges. Insofar as relevant, the Court of Appeal held, as to the admissibility of the prosecution, as follows: “In view of the suspicion that existed in respect of some groups to which the [applicant] was suspected to belong, the deployment of Z as (a civilian) informer/infiltrator was justified. Pursuant to the directives [on] infiltration dated 20 February 1991 then in force, this deployment required the approval of the public prosecution department. Whether this approval has been given and, if so, in how far the responsible public prosecution department supervised the activities of Z, or how far Z acted upon the instructions of the runners or according to his own plans and insight, has – after the further investigation by the court – not been clarified. ... The court is of the opinion that it is plausible that, insofar as he has not respected instructions or has acted more extensively than allowed by the runners, with the supply of base materials and devices, or the production of hard drugs in the various laboratories, Z was given the opportunity, given the lack of supervision and control by the Regional Criminal Intelligence Service, to commit unpunished criminal offences and generate [income from crime]. In these circumstances, the public prosecution department must be held responsible for the activities not directed by the Regional Criminal Intelligence Service or the public prosecution department. ... This is different for the [charges set out under nos.] 2, 3, 5, 10 and 11. Insofar as these facts can be proven, it has not been established that Z had anything to do with [these facts]. The infiltration by Z also forms no obstacle to the admissibility of the prosecution as regards [the first charge]. The element that Z, as an infiltrator, has in fact participated in, and possibly in certain cases has taken the initiative in, the commission of some of the punishable facts charged – the preparation/production of amphetamines and/or XTC – and that, in view of the probable scope of Z's activities, the public prosecution must be declared inadmissible in respect of those facts in the case against [the applicant], does not mean that the public prosecution department must be denied its right to prosecute [the applicant] as regards his participation in an organisation whose aim is to commit these and other criminal offences. There is no indication whatsoever that the organisation would not have existed without the commitment of Z. Nor has it been established that the applicant would not have participated in the organisation if Z had not become involved in it.” The Court of Appeal acquitted the applicant, for lack of evidence, on the second, third, fifth and tenth charges, and convicted him of participation in a criminal organisation and of participation in the commission of an unlawful deprivation of liberty (first and eleventh charges). It sentenced him to five years' imprisonment, less the time spent in detention in Spain pending his extradition and the time spent in pretrial detention in the Netherlands. As to the determination of the applicant's sentence, the Court of Appeal held as follows: “The court has determined the sentence on the basis of the gravity of the offences and the circumstances under which they were committed, and on the basis of the person and the personal circumstances of the [applicant], as has emerged from the hearings before the court. The court has had particular regard to the following: The [applicant] has participated in a criminal organisation involved in the production and exportation of amphetamines and XTC on a large scale. He has played a managing role (“leidinggevende rol”) in that organisation. He was motivated by financial greed, regardless of the considerable dangers which drugs such as amphetamines and XTC, as commonly known, constitute to public health. In connection with these criminal activities, the accused has further, together with others, committed an unlawful deprivation of liberty in which one of the members of the organisation was [deprived of his liberty]. The court further takes into account that the accused, according to his own statement, was sentenced to a lengthy term of imprisonment in Spain in 1988 in respect of a [drug offence]. In view of the nature and seriousness of the facts found proven, the court is of the opinion that only an unconditional prison sentence [of five years] is a fitting sanction.” The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) and raised seventeen complaints. He first complained that the Court of Appeal, in the reasons determining the sentence, had disregarded the law and/or the formalities entailing nullity because: “According to Article 140 of the Criminal Code, it is a (considerable) aggravating circumstance when a participant in a [criminal] organisation manifests himself as a founder or director thereof. This aggravating circumstance was initially not included in the charge and it was also not notified to the extraditing State. The Court of Appeal of The Hague has thus correctly found that the public prosecution department did not have a right of prosecution in respect of this aggravating circumstance. Incomprehensibly, however, the Court of Appeal subsequently attributes to this aggravating circumstance a prominent role in the prosecution via the back door in its determination of the sentence. Indeed, the Court of Appeal explicitly considers that having a managing role in the organisation is significant in the determination of the punishment. Thereby, despite the prohibition on prosecution correctly determined by the Court of Appeal, the [applicant] has been prosecuted and convicted for directing/managing the organisation [at issue]. The judgment has therefore not, or in any event not in a comprehensive manner, been reasoned as required by law.” In his advisory opinion, the Procurator General to the Supreme Court proposed to reject this complaint, considering that: “It must first be put that [a] “managing role” is not, by definition, equivalent to directing a criminal organisation or fulfilling the role of the director of that organisation, as meant by Article 140 § 3 of the Criminal Code. One can very well give guidance without being a director, as meant in the charge that was brought and in respect of which the prosecution was declared inadmissible. In its considerations, the Court of Appeal has only indicated that [the applicant] has contributed more to the operation of that organisation than other participants, without – in giving this indication – finding that he performed the role of director ... The complaint therefore rests on an incorrect understanding of the judgment and it lacks a factual basis.” In his response to the advisory opinion, the applicant submitted: “In his advisory opinion on the first complaint, the Procurator General indicates that the complaint rests on an incorrect understanding of the judgment, as directing is not, by definition, equivalent to managing. The [applicant] is convinced that your Court, in your case law of the last two decades, has in fact indicated that “directing”, within the meaning of Article 140 of the Criminal Code, is not to be interpreted restrictively in the sense that it would only concern the civil law direction of (for instance) a legal person. It is indeed the managing of an organisation which is regarded by your Court as (a form of) directing under Article 140 of the Criminal Code. Charges in which the element of “directing” is factually described as “managing” can stand the test of criticism like this. If your Court were to follow the advisory opinion, this would - in the [applicant's] humble opinion - mean a departure from the current line, with considerable consequences for the prosecution of directing criminal organisations.” In its judgment of 14 March 2000, the Supreme Court rejected the applicant's first complaint in cassation, holding: “The charge under 1 is geared to Article 140 of the Criminal Code. In the proceedings in first instance that charge has been amended, in the sense that, to this [charge] – undeniably as an aggravating circumstance as meant in the third paragraph of that Article – has been added “whereas the accused, within that organisation, has fulfilled the role of director”. In the impugned ruling, the Court of Appeal has declared the prosecution inadmissible regarding the charge under 1, insofar as it concerns that aggravating circumstance. In the reasons given ... for the determination of the sentence, the Court of Appeal has taken into account that the [applicant] has played “a managing role” in the organisation concerned. In so doing the Court of Appeal apparently was referring to the managerial activities of the [applicant] which are not of such a nature that they mean that the [applicant] must be regarded as the “director” under Article 140 § 3 of the Criminal Code. The complaint, which rests on another understanding of the impugned ruling, thus lacks a factual basis, so that it cannot lead to cassation.” The Supreme Court also rejected the applicant's complaint in cassation that his rights under, inter alia, Article 6 of the Convention had been breached by the refusal of the Court of Appeal to summon the witnesses X and Y again and/or to declare the prosecution inadmissible on account of the latters' failure to appear. As regards these complaints, the Supreme Court held: “The[se] complaints do not constitute grounds for overturning the impugned judgment (“kunnen niet tot cassatie leiden”). Having regard to Article 101a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), no further reasoning is called for, since these complaints do not give rise to the need for a determination of legal issues in the interests of legal unity and legal development.” It also rejected the other complaints in cassation raised by the applicant. Article 140 of the Criminal Code (Wetboek van Strafrecht), as in force at the material time and in its relevant part, read as follows: “1. Participation in an organisation whose aim is to commit offences shall be liable to a term of imprisonment not exceeding five years or a fourth category fine [i.e. 11,345 euros]. ... 3. For those responsible for setting up [the organisation] or its directors (bestuurders), the term of imprisonment may be increased by one third, and a fine in the next higher category may be imposed.” Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides as follows: “1. The judgment shall contain the charges and the substance of the evidence insofar as it serves to prove the charges. ... 3. The decision that a defendant committed the offence in question must be supported by facts or circumstances that are referred to as such in the judgment. ... 5. The judgment shall specify the reasons that have determined the sentence or non-punitive order. 6. In imposing a sentence or non-punitive order involving a deprivation of liberty, the judgment shall specify the reasons that led to that choice of penalty or order. It shall also describe, as far as possible, the circumstances that were taken into account in determining the length of the sentence. ...” In determining the type and severity of the sentence to be imposed in cases where accused persons are found guilty, the courts have a considerable degree of latitude. The Criminal Code lays down a general minimum sentence (of one day as far as imprisonment is concerned - Article 10 § 2) and, depending on the offence in question, a maximum sentence. Within these limits, the court is free to determine the appropriate sentence in the light of the accused's According to Article 57 of the Criminal Code, where two or more separate, indictable offences are committed, the maximum penalty which may be imposed is the combined total of the maximum penalties for each offence. However, insofar as a term of imprisonment is concerned, the penalty may not exceed the most severe maximum penalty by more than one third. In the present case, the first offence of which the applicant was convicted carried a maximum prison sentence of five years and the second offence a maximum prison sentence of eight years. The maximum sentence that could have been imposed on the applicant was therefore ten years and eight months. Article 101a of the Judiciary (Organisation) Act, as in force at the material time, read as follows: “If the Supreme Court considers that a complaint does not provide grounds for overturning the judgment appealed against and does not require answers to questions of law in the interests of the unity or development of the law, it may, in giving reasons for its decision on the matter, limit itself to that finding.”
| 0
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train
|
001-110188
|
ENG
|
NLD
|
GRANDCHAMBER
| 2,012
|
CASE OF VAN DER HEIJDEN v. THE NETHERLANDS
| 2
|
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
|
Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Nicolas Bratza
|
10. The applicant was born in 1969 and lives in ‘s-Hertogenbosch. 11. On the night of 9 to 10 May 2004, a man was shot and killed in a café in ‘s-Hertogenbosch by a person believed to be the applicant’s unmarried life partner, Mr A. The applicant was understood to have been in the company of Mr A. at the relevant time. 12. According to the Government, Mr A. had been convicted of similar offences in 1998 and 2003, and on the latter occasion of attempted manslaughter using a firearm. While serving his sentence for that offence, Mr A. had been given weekend leave; it was during this particular weekend that the above-mentioned shooting took place. 13. On 25 May 2004, having been summoned as a witness in the criminal investigation that had been opened against Mr A., the applicant appeared but refused to testify before the investigating judge (rechtercommissaris). She explained that, although they were not married and had not entered into a registered partnership (geregistreerd partnerschap), she and Mr A. had been cohabiting for eighteen years in a relationship out of which two children had been born, both of whom had been recognised by Mr A. The applicant argued that on the basis of this relationship she should be regarded as entitled to the testimonial privilege (verschoningsrecht) afforded to suspects’ spouses and registered partners under Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure (Wetboek van Strafvordering; see paragraph 24 below). Although being of the view that the applicant was not entitled to testimonial privilege, the investigating judge rejected the public prosecutor’s request to issue an order for the applicant’s detention for failure to comply with a judicial order (gijzeling), finding that the applicant’s personal interests in remaining at liberty outweighed those of the prosecution. The public prosecutor appealed against this decision to the ‘s-Hertogenbosch Regional Court (rechtbank). 14. On 2 June 2004 the ‘s-Hertogenbosch Regional Court, sitting in chambers (raadkamer), quashed the investigating judge’s decision of 25 May 2004 and ordered the applicant’s detention for failure to comply with a judicial order. It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to Mr A. before, during and after the shooting. It noted that, according to the provisions of Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure as in force from 1 January 1998, the (former) spouse or the (former) registered partner of a suspect were competent but not compellable witnesses, that is to say, persons entitled to testimonial privilege. It further held: “It follows from the wording and the legal history of [Article 217, opening sentence and sub-paragraph 3,] that the legislature has quite recently and unambiguously chosen not to include in the scope of [the privilege set out in Article 217, opening sentence and sub-paragraph 3,] any partners other than spouses and registered partners (as well as former spouses and former registered partners). As it does not appear that [the applicant] and the suspect are or have been married or that they are or have been registered partners, the Regional Court is of the view that [the applicant] cannot claim an entitlement to the testimonial privilege laid down in Article 217 of the Code of Criminal Procedure. This is not altered by the fact that [the applicant] and the suspect are engaged in another kind of longterm cohabitation. The Regional Court rejects the argument raised by counsel for [the applicant] that it follows from Articles 8 and 14 of the Convention that the Netherlands legislature cannot limit the group of persons (related to a suspect) entitled to testimonial privilege. An extension of that group must, also in view of the far-reaching consequences thereof, be decided by the legislature and for that reason goes beyond the judicial function (rechtsvormende taak) of the courts.” 15. In its subsequent balancing of the competing interests involved, the Regional Court noted that the facts at issue concerned one of the most serious crimes set out in the Criminal Code (Wetboek van Strafrecht) and concluded that the applicant’s personal interests were outweighed by the general interest of the truth being uncovered. It further added that the circumstance that the applicant and Mr A. were cohabiting as if they were in a marriage or a registered partnership could not lead it to balance the interests differently. Rejection of the request to issue a detention order on the basis of that circumstance would entail that the applicant was nevertheless, and in circumvention of Article 217 of the Code of Criminal Procedure, granted a right to testimonial privilege, and that would be contrary to the legislature’s choice. 16. On the same day, 2 June 2004, at around 3.30 p.m., the applicant was taken into detention for failure to comply with a judicial order. As required by Article 221 of the Code of Criminal Procedure (see paragraph 26 below), the applicant was heard on 3 June 2004 by an investigating judge, who rejected a release request by counsel for the applicant and who notified the Regional Court within the statutory time-limit of twenty-four hours after she was taken into detention. 17. On 4 June 2004 the Regional Court, sitting in chambers, examined whether the applicant’s detention should continue, and in that context it heard the applicant, who persisted in her refusal to give evidence in the criminal investigation against Mr A. The Regional Court agreed with the decision taken in chambers on 2 June 2004 that the applicant was not entitled to testimonial privilege. Concluding that the interests of the investigation in obtaining the applicant’s evidence outweighed the interests invoked on behalf of the applicant, the Regional Court decided that the applicant was to be kept in detention for twelve days, with a possibility of further extension. The applicant lodged an appeal with the Court of Appeal (gerechtshof). 18. On 15 June 2004 the Regional Court, sitting in chambers, examined a request by the prosecution of 14 June 2004 to extend the applicant’s detention. After hearing the public prosecutor, the applicant and her lawyer the Regional Court rejected the request and ordered the applicant’s immediate release. It found that the interest of the truth being uncovered in the criminal proceedings against Mr A. was outweighed by the applicant’s personal interest in being released, also taking into account the fact that the applicant’s detention entailed an interference with her rights under Article 8 of the Convention (“mede gelet op het feit dat de vrijheidsbeneming van de getuige een inbreuk op artikel 8 van het EVRM tot gevolg heeft”). 19. On 24 June 2004, the ‘s-Hertogenbosch Court of Appeal dismissed the applicant’s appeal (hoger beroep) and upheld the impugned decision of 4 June 2004. 20. On 31 May 2005, after noting that the applicant had been released on 15 June 2004, the Supreme Court (Hoge Raad) declared inadmissible for lack of interest the applicant’s subsequent appeal on points of law (cassatie). The Supreme Court nevertheless saw fit to consider the applicant’s first complaint that the Court of Appeal had incorrectly upheld the ruling of the Regional Court in which it was concluded that she was not entitled to the testimonial privilege of Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure, as well as her second complaint that to deny her this privilege was contrary to Articles 8 and 14 of the Convention. 21. Having noted the wording of Article 217, opening sentence and subparagraph 3, of the Code of Criminal Procedure as in force since 1 January 1998, the Supreme Court rejected the first complaint. As to the applicant’s grievance based on Articles 8 and 14 of the Convention, the Supreme Court held: “Testimonial privilege as laid down in Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure seeks to protect the ‘family life’ within the meaning of Article 8 of the Convention that exists between the spouses and partners referred to in that provision. By granting this privilege to spouses and registered partners but not to other partners – even when such partners, like the applicant and her partner, cohabit in a sustained fashion – the law differentiates between the different forms of cohabitation at issue here. Even assuming that this can be said to constitute a difference in treatment of persons in the same situation, there is an objective and reasonable justification for this difference in treatment, having regard to the fact that the granting of testimonial privilege to spouses and registered partners is an exception to the statutory duty to testify, which exception makes the interest of uncovering the truth yield to the interests of those relationships, with the statutory arrangement delimiting this exception in a clear and workable manner, thus serving legal certainty.” 22. No further appeal lay against this ruling. 23. Unlike the suspect, a witness in (preliminary) criminal proceedings is obliged to answer questions put to him or her when he or she is under oath, and any deliberate refusal to do so constitutes a criminal offence under Article 192 of the Criminal Code. However, Article 217 of the Code of Criminal Procedure grants the right not to give evidence to certain relatives of the suspect. 24. Article 217 of the Code of Criminal Procedure provides as follows: “The following shall be excused the obligation to give evidence or answer certain questions: 1º: the relatives in the ascending or the descending line of a suspect or co-suspect, whether connected by blood or by marriage; 2º: the relatives ex transverso [i.e. siblings, uncles, aunts, nieces and nephews, etc.] of a suspect or co-suspect, whether connected by blood or by marriage, up to and including the third degree of kinship; 3º: the spouse or former spouse, or registered partner or former registered partner, of a suspect or co-suspect.” The third sub-paragraph formerly applied only to the spouse and the former spouse of a suspect or co-suspect. It was amended to extend the testimonial privilege to the registered partner (or former registered partner) with effect from 1 January 1998, when the Registered Partnership Act (Wet geregistreerd partnerschap) and the Act on the Adaptation of Legislation to the Introduction of Registered Partnership into Book 1 of the Civil Code (Wet tot aanpassing van wetgeving aan de invoering van het geregistreerd partnerschap in Boek 1 van het Burgerlijk Wetboek) entered into force. 25. As can be inferred from the Explanatory Memorandum (Memorie van Toelichting) to Article 217 of the Code of Criminal Procedure (see Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1913/14, 286, no. 3, p. 108), and from an advisory opinion of the Advocate General endorsed by the Supreme Court in a judgment of 7 December 1999 (National Jurisprudence Number ZD1719, published in Nederlandse Jurisprudentie (Netherlands Law Reports) 2000, no. 163), the basis for this testimonial privilege lies in the sphere of the protection of family relations. In accepting the right not to give evidence against a relative, spouse or registered partner, the legislature has acknowledged the important social value of those relationships in society and has sought to prevent witnesses from being faced with a moral dilemma by having to make a choice between testifying, and thereby jeopardising their relationship with the suspect, or giving perjured evidence in order to protect that relationship. 26. Article 221 of the Code of Criminal Procedure provides as follows: “1. If, when questioned, the witness refuses without any lawful reason to answer the questions put to him or to make the required statement or take the required oath or affirmation, the investigating judge shall, if this is urgently required in the interest of the investigation, either proprio motu or if so requested by the public prosecutor or by the defence, order that the witness shall be detained for failure to comply with a judicial order until the Regional Court has given a decision in the matter. 2. The investigating judge shall notify the Regional Court within twenty-four hours after the detention has commenced, unless the witness is released from detention before then. The Regional Court shall, within forty-eight hours [from the notification], order that the witness be kept in detention or released.” Article 222 of the Code of Criminal Procedure provides as follows: “1. The Regional Court’s order for the witness to remain in detention shall be valid for no longer than twelve days. 2. However, as long as the preliminary judicial investigation (gerechtelijk vooronderzoek) remains pending, the Regional Court may, on the basis of the findings of the investigating judge or at the request of the public prosecutor, after having again questioned the witness, extend the validity of the order again and again (telkens) for twelve days each time.” 27. Article 223 of the Code of Criminal Procedure provides as follows: “1. The investigating judge shall order the witness released from detention as soon as he has fulfilled his obligation or his evidence is no longer needed. 2. The Regional Court may at any time order the witness released from detention, whether on the basis of the findings of the investigating judge, proprio motu or if so requested by the public prosecutor or by the defence. The witness shall be heard or summoned beforehand. 3. If the witness’s request to be released from detention is refused, he may appeal within three days of the official notification of the decision, and in the event that his appeal is dismissed, he may within the same time-limit lodge an appeal on points of law. ... 4. In any event, the public prosecutor shall order that the witness be released as soon as the preliminary judicial investigation has been closed or discontinued.” 28. A partnership is registered by means of a registration document drawn up by the Registrar of Births, Deaths and Marriages (ambtenaar van de burgerlijke stand) (Article 1:80a § 2 of the Civil Code); the formal requirements are similar to those of a marriage. It can be dissolved by mutual consent, by the registration of a statement to that effect signed by both parties and co-signed by an advocate or a notary, or by a court order at the request of one of the parties (Article 1:80c of the Civil Code). 29. The provisions of the Civil Code setting out the legal consequences of marriage apply by analogy to a registered partnership, with the exception of certain rules governing the establishment of legal family ties (familierechtelijke betrekkingen) with descendants (Article 1:80b of the Civil Code). 30. On 1 June 2011, in response to a request made during the Court’s hearing (see paragraph 9 above), the Government supplied the following information: “In 1997/1998 article 217 of the Code of Criminal Procedure (CCP) was amended to the extent that the right to be exempted from testifying would also apply to a witness who had entered into a registered partnership with the defendant. This amendment in itself did not lead to any debate on the question whether other forms of relationships should be entitled to the same exemption. However, this amendment – among many others – was a consequence of the introduction of registered partnership, which in turn was preceded by a full survey (concluded in 1985, [Parliamentary Documents, Lower House of Parliament, 15401, no. 5]) of all legislation that made a distinction between married and unmarried couples. With regard to article 217 CCP the survey mentioned that an amendment should be considered to the effect that the article would include a life partner (p. 16). Following this survey the Kortmann committee [a committee tasked with reviewing legislative projects, named after its chairman, Professor S.C.J.J. Kortmann] presented its report ‘Partnerships’ (Leefvormen, 20 December 1991) to the Cabinet. The committee was of the opinion that the best way to remove all existing distinctions would be to introduce two new possibilities of registering partnerships in addition to marriage. Together these three forms of registration could be used as categories in most legal provisions that attached legal consequences to different types of partnerships. Following further discussion in parliament ([Parliamentary Documents, Lower House of Parliament, 15401, nos. 9, 10 and 11]) the Government decided to introduce only one new form of registration, which then became known as registered partnership. In doing so, the Government accepted that in several instances, specific provisions might be required to accommodate situations of family life not covered by the accepted categories. However, in the context of article 217 CCP this was not considered necessary.” 31. All Council of Europe Member States have addressed in their legislation the question whether in criminal proceedings the spouse of the defendant can be compelled to give evidence. The following is a brief and necessarily condensed survey of the position in the various domestic legal orders. It is based on information available to the Court at the time of its hearing (see paragraph 8 above). 32. In no Council of Europe member State, with the exception of France and Luxembourg, are spouses obliged to give evidence in criminal proceedings in which the other spouse is a suspect. In a few cases, namely Belgium, Malta and Norway, exclusion of the evidence of the suspect’s spouse is automatic; in general, however, the spouse may opt to give evidence or claim a privilege or an exemption when called as a witness. 33. The possibility formally to register a partnership exists in Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Slovenia, Spain (some of the autonomous communities), Sweden, Switzerland, Ukraine and the United Kingdom. Some of these States allow such registration only if the parties are of the same sex (including Austria, Denmark, Finland, Germany, Hungary, Slovenia and Sweden); the other member States concerned provide registration of a partnership as an alternative to marriage when the parties are a man and a woman. 34. Of the twenty member States that allow the registration of partnerships, thirteen are prepared to exempt the suspect’s registered partner from giving evidence: these are Austria, Belgium, the Czech Republic, Germany, Iceland and the Netherlands, whose legislation explicitly so provides, and Denmark, Finland, Hungary, Norway, Sweden, Switzerland and the United Kingdom, whose laws assimilate registered partnership to marriage in this aspect as in others. Greece and Ireland do not extend this privilege to registered partners; France and Luxembourg grant no testimonial privilege at all. 35. A minority of member States – namely Austria, Andorra, Finland, Georgia, Germany, Hungary, Iceland, Liechtenstein, Lithuania, Norway, Poland, Portugal, Slovakia, Sweden, Turkey and Ukraine – exempt the person engaged to be married to the suspect from the duty to give evidence. However, apart from Finland, Germany, Hungary, Iceland, Norway, Sweden and Turkey, these member States qualify this exemption by requiring evidence of the existence of a bond similar to marriage, such as stable cohabitation or a child born of the relationship. 36. Cohabitees who are not married, engaged to be married or in a registered partnership with the suspect appear to be dispensed from giving evidence unconditionally only in Albania, Andorra, Lithuania and Moldova. By contrast, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, Hungary, Iceland, Italy, Liechtenstein, Montenegro, Norway, Portugal, Serbia, Slovakia, Spain, Sweden and Switzerland require proof of the marriage-like nature of the relationship, usually in the form of children born of it, demonstrable financial arrangements or length of cohabitation. It would appear that the other Council of Europe member States do not permit a person merely cohabiting with the suspect to withhold his or her evidence.
| 0
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train
|
001-61436
|
ENG
|
AUT
|
CHAMBER
| 2,003
|
CASE OF KRONE VERLAG GmbH & Co. KG (no. 2) v. AUSTRIA
| 3
|
Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
|
Peer Lorenzen
|
9. The applicant company is the publisher of a newspaper (Neue Kronenzeitung) with its registered office in Vienna. 10. In July 1996 the Neue Kronenzeitung published several articles on a case of parents, Ms and Mr K. who had abused their daughter. In the articles it was alleged that they had homo-bisexual inclinations. Subsequently Ms K. filed a compensation claim under the Media Act (Mediengesetz) with the Vienna Regional Criminal Court (Landesgericht für Strafsachen) against the applicant company. 11. On 30 July 1996 the court ordered the applicant company under Section 8a § 5 of the Media Act to publish a notice concerning the institution of the proceedings. On 4 September 1996 this notice was published in the Neue Kronenzeitung. 12. On 5 and 10 September 1996 Ms K. filed enforcement requests (Durchsetzungsanträge) under Section 20 of the Media Act against the applicant company. Referring to Section 13 § 3 of the Media Act, requiring a notice of the same “publishing value” (Veröffentlichungswert) as the original message, she argued that the notice of 4 September 1996 was smaller than the articles of July 1996 and was, thus, not published in due form. 13. On 17 December 1996 the Regional Court dismissed Ms K.'s request. The court found that the notice of 4 September 1996, though somewhat smaller, had the same “attention value” (Auffälligkeitswert) and, thus, the same “publishing value” as the articles. 14. With the Vienna Court of Appeal's (Oberlandesgericht) decision of 14 July 1997 the compensation proceedings were finally determined. The court ordered the applicant company to pay ATS 115,000 in compensation to Ms K. for breach of the presumption of innocence in its reporting about Ms K. and to publish the sentence. The applicant company complied with these orders. 15. On 30 July 1997 the Court of Appeal, upon Ms K.'s appeal, quashed the Regional Court's decision of 17 December 1996 and ordered the applicant company to pay a coercive indemnity (Geldbuße) of ATS 24,000 to Ms K., namely ATS 4,000 for each issue of the newspaper between 5 and 10 September 1996. The court considered that, in one of the disputed articles, Ms K. had been defamed even in a subtitle, whereas the notice had no subtitle. Therefore the “publishing value” was diminished. 16. Following this decision, Ms K. filed further enforcement requests for the period of 11 September 1996 until 4 August 1997. 17. On 23 September 1997 the applicant company requested that Section 20 § 4 of the Media Act be applied by analogy. This provision allowed for an exemption from the imposition of coercive indemnity for the duration of appeal proceedings in case a first-instance court had imposed a coercive indemnity for an inappropriate publication of the notice - which, however, had been published in a manner close to the due form - and the respondent had appealed against this decision. The applicant company argued that after the first-instance court's decision in its favour, finding that the notice had the same publishing value, it had not been required to publish another notice. Therefore the above rule of exemption from imposition of coercive indemnity during the appeal proceedings applied even more in its case. The applicant company further requested that Section 20 § 3 of the Media Act - which, in cases of special circumstances, allows the authority to stop or remit the imposition of coercive indemnity, once the notice has been published in due form - be applied for the period of 5 to 10 September 1996. 18. On 27 October 1997 the Regional Court ordered the applicant company to pay ATS 508,000 to Ms K., namely ATS 4,000 for each issue of the Neue Kronenzeitung between 20 September 1996 and 16 January 1997, the date of the introduction of Ms K.'s appeal against the decision of 17 December 1996. It dismissed the remainder of Ms K.'s request and the applicant company's request under Section 20 § 3 of the Media Act. The court found that Section 20 § 4 of the Media Act applied by analogy for the period of the appeal proceedings, therefore no coercive indemnity had to be paid from 17 January to 4 August 1997. 19. On 30 January 1998 the Vienna Court of Appeal, on both parties' appeal, quashed the Regional Court's decision in part. It decided that the applicant company had to pay a coercive indemnity of ATS 1,304,000 to Ms K., i.e. ATS 4,000 for each issue of the newspaper between 11 September 1996 and 4 August 1997. The court considered that the applicant company could not be exempted from paying the coercive indemnity for the period of the appeal proceedings, as the notice of 4 September 1996 had not come close to a notice in due form as required by Section 20 § 4 of the Media Act. 20. On 30 June 1998 the Procurator General's Office (Generalprokuratur) lodged a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court. It argued that the coercive indemnity under Section 20 of the Media Act was a coercive measure (Beugemittel). According to the Office, it was unreasonable to impose a coercive indemnity for the period after the first instance court's decision of 17 December 1996, since after that decision the applicant company was to be considered as having acted in good faith when it did not publish another notice. The coercive indemnity should therefore only be imposed for the period before 17 December 1996. 21. On 15 September 1998 the Supreme Court dismissed the plea of nullity. It argued that the question of good faith could not be resolved under Section 20 § 4 of the Media Act. Rather, the applicant company would have to commence indulgence proceedings (Nachsichtsverfahren) under Section 20 § 3 of the Media Act. In such proceedings, its particular situation after the first instance decision of 17 December 1996 could be taken into account. 22. In compensation proceedings under the Media Act, the court shall order the media company concerned to publish a short notice about the institution of the case, if it may be assumed that the compensation claim is well founded (Section 8a § 5). 23. This notice has to have the same “publishing value” (Veröffentlichungswert) as the publication to which it refers (Section 13 § 3). 24. If the notice was not published in due form, the plaintiff may request the court to impose a coercive indemnity on the respondent for each issue in which the notice could have been duly published, with sums of up to ATS 10,000 per issue (Section 20 § 1). 25. Once the notice has been duly published, the coercive indemnity may be stopped or remitted on request by the respondent in cases of special circumstances (in berücksichtigungswürdigen Fällen) (Section 20 § 3). 26. The parties have a right to appeal to the Court of Appeal against decisions imposing or remitting a coercive indemnity. In the event a coercive indemnity has been imposed for inappropriate publication of the notice and the respondent has appealed against this decision, no further coercive indemnity shall be imposed for the duration of the appeal proceedings, if the notice - whose proper publication is litigious - was published in a manner coming close to the due form (Section 20 § 4).
| 1
|
train
|
001-71366
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,005
|
HACKBARTH v. CROATIA
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant, Ms Nevenka Hackbarth, is a Croatian national, who was born in 1936 and lives in Rijeka. The respondent Government were represented by their Agents, Ms L. Lukina-Karajković and subsequently by Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 February 2000 the applicant complained to the Rijeka Office of the Inspection Department of the Ministry for Environmental Protection and Town Planning (Ministarstvo zaštite okoliša i prostornog uređenja – “the Ministry”) that her flat in Rijeka had frequently been flooded from the flat above, where her neighbours M.G. and T.G. were “drilling holes”. On 6 March and 17 April 2000 the Ministry made in situ inspections in the applicant’s flat and established the existence of damp stains of unknown origin. On 23 June 2000 the Ministry gave decision (rješenje) finding that, because of the frequent flooding of the applicant’s flat from the neighbouring one, her life and health were in serious danger since the water had also damaged electric installations. The Ministry ordered the neighbours to repair the sewage and water pipes in their flat within five days following the receipt of the decision and indicated that otherwise it would fine them 20,000 Croatian kunas (HRK). Since the parties did not appeal, the decision became final. On 27 August 2000 the neighbours informed the Ministry that they had made the repairs indicated and thereby complied with the decision. On 23 October 2000 the Ministry made another in situ inspection and established that the ceiling and the walls were dry and that there were no traces of damp. However, on the same day the applicant informed the Ministry that the wet stains had reappeared. On 30 October 2000 the Ministry made another in situ inspection during which T.G. promised to call a plumber to repair the pipes. The applicant submits that on 30 and 31 October 2000 she invited T.G. to inspect her flat and that T.G. did so. She further submits that on 1 November 2000 the plumber shortly visited her flat without making any repairs, and that M.G. also visited her flat with the plumber on four occasions. On 15 December 2000 the applicant phoned the Ministry and complained that the neighbours had done nothing to stop the leakage. After that date she did not contact the Ministry again. On 27 December 2000 the Ministry issued an enforcement order (zaključak o dozvoli izvršenja) establishing that its decision of 23 June 2000 had become enforceable and that the neighbours had not complied with it. Consequently, the Ministry fined the neighbours HRK 20,000. The neighbours were again ordered to repair the pipes, or the order would be carried out by another person at their expense. On 15 January 2001 T.G. informed the Ministry that it was impossible for her to comply with the order. She argued that she had been unable to locate the pipe damage since the applicant had not allowed her or the plumber to enter her flat on two occasions (8 and 9 January 2001). Relying on the same arguments, T.G. appealed against the enforcement order to the second instance authority within the Ministry. On 30 July 2002 her appeal was dismissed. It appears that, to date, the enforcement order has not been carried out. The 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/01 (consolidated text)) guarantees as fundamental rights, inter alia, the right to a fair trial within a reasonable time (Article 29), the right to respect for home (Article 34) and right to property (Article 48). Sections 67 -76 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provide for special proceedings for the protection of constitutional rights and freedoms from unlawful (physical) acts (or omissions) of public officials, if no other judicial remedy is available. Section 67 provides that these proceedings shall be instituted by bringing an ‘action against the unlawful act’ in the competent municipal court. The action shall be brought against the public authority to which the act (or omission) is imputable (the respondent). Section 71 provides that in the proceedings following an ‘action against the unlawful act’ the court shall proceed urgently. Section 72 provides that the court shall without delay serve the complaint on the respondent and set a time-limit for reply. However, the court may, depending on the circumstances, give a decision immediately. Under the case-law of the Supreme Court (decision no. Gž-6/1997-2 of 12 November 1997), the court may give a decision even without holding a hearing. Section 73 provides that the court shall decide on the merits of the case by a judgment. If it finds in favour of the plaintiff, the court shall order the respondent to desist from the unlawful activity and, if necessary, order restitutio in integrum. Section 74 provides that parties may appeal to the competent county court against the first instance decision within three days following the service. An appeal does not postpone the enforcement, but the court may, if it finds it necessary, decide otherwise. No appeal on points of law (revizija) lies against the second instance decision. In the proceedings following an ‘action against the unlawful act’ the court shall apply mutatis mutandis the provisions of the Civil Procedure Act. Sections 75 and 76 provide that, if the court finds in favour of the plaintiff, the respondent shall comply with the judgment within three days following the service. If it fails to do so, the enforcement shall be carried out in the judicial enforcement proceedings. In addition, disciplinary proceedings for a grave disciplinary offence shall be instituted against the responsible official who may also be fined. In its decision no. Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted ‘unlawful act’ within the meaning of Section 67 of the Administrative Disputes Act. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion.
| 0
|
train
|
001-58837
|
ENG
|
GBR
|
CHAMBER
| 2,000
|
CASE OF MAGEE v. THE UNITED KINGDOM
| 1
|
Violation of Art. 6-1+6-3-c;No violation of Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
|
Nicolas Bratza
|
8. On 16 December 1988, early in the morning, the applicant was arrested at his home under section 12 of the Prevention of Terrorism Act 1984 (“the 1984 Act”) in connection with an attempted bomb attack on military personnel. The applicant was taken to Castlereagh police station. He claims that on arrival he immediately requested to see his solicitor. Access was delayed pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987 (“the 1987 Act”). At 9.15 a.m. the applicant was examined by a doctor who advised him that if he had any complaints to make he should tell the doctor when he made his round the following morning. The applicant was cautioned pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). Unfamiliar with this new law, the applicant again requested a consultation with a lawyer and this request was refused. 9. On the same day the applicant was interviewed five times by two teams of two detectives. These interviews took place between 10.55 a.m. and 1 p.m., 2 p.m. and 4 p.m., 4 p.m. and 6 p.m., 7.35 p.m. and 9.30 p.m., and 9.30 p.m. and 12 midnight. 10. At 8.21 a.m. on 17 December 1988, the applicant complained to the same doctor he had seen the day before of ill-treatment during the second and third interviews on the previous day. The doctor recorded in his notes that the applicant had alleged that he had been repeatedly slapped and occasionally punched in the back of the head during the second and third interviews and that he had been punched a few times in the stomach. The doctor gave the applicant two tablets (a mild analgesic) and prescribed four such tablets a day if required. Pursuant to this complaint, at 9.15 a.m. a police inspector visited the applicant's cell and took note of the applicant's complaints. 11. Subsequently, the applicant's sixth, seventh and eighth interviews took place between 9.30 a.m. and 1 p.m., 2 p.m. and 4.20 p.m., and 7.30 p.m. and 12 midnight. During the sixth interview the applicant broke his silence and gave detailed answers to a number of questions admitting to his involvement in the assembly and planting of the bomb. During the seventh interview the applicant signed a lengthy statement which described in considerable detail his part in the conspiracy to plant and detonate the bomb. 12. At 8.28 a.m. on 18 December 1988, the applicant was visited by the same doctor who asked the applicant if he had any further allegations of ill-treatment and the applicant replied that he had not. The applicant was then interviewed about another matter between 10 a.m. and 12.45 p.m. At 1 p.m. the applicant was allowed to consult with his solicitor, who made notes on the applicant's allegations of ill-treatment. The solicitor chose not to pass these complaints on to the police. The applicant was then interviewed for the last time between 2 p.m. and 5 p.m. about an unrelated matter. The applicant was medically examined that evening at 8.20 p.m. by another doctor whose notes indicated that the applicant had made “no allegations of ill-treatment since he had been last seen by a doctor”. That doctor also noted that there was no sign of injuries. 13. On 19 December 1988 the applicant was taken to another police station where he was given a medical examination by another doctor. That doctor's note records the applicant's detailed allegations of assaults and ill-treatment which allegedly took place on 16 December 1988. No objective evidence of injury was noted. 14. On 19 December 1988 the applicant, along with others, was charged at Belfast Magistrates' Court with conspiracy to cause explosions, possession of explosives with intent, conspiracy to murder and membership of the Irish Republican Army. 15. On 3 March 1989 the applicant, through his solicitor, made an official written statement to the Complaints and Discipline Branch of the Royal Ulster Constabulary complaining about his ill-treatment by one team of two detectives while at Castlereagh police station. 16. On 17 September 1990 the trial of the applicant and his co-accused began at Belfast Crown Court before a single judge sitting without a jury. The applicant pleaded not guilty. The prosecution case was based on the admissions made by the applicant in interview and, in particular, the written statements signed by him. 17. On 3 October 1990, when the prosecution were about to lead evidence based on the applicant's admissions and statement made during questioning, the applicant applied under section 8 of the Northern Ireland (Emergency Provisions) Act 1978 (as amended) to have the admissions and statement made during questioning excluded on the basis of his alleged ill-treatment. A voir dire (submissions on a point of law in the absence of the jury) began and the applicant gave evidence as to his treatment, particularly by one team of two detectives during interviews nos. 2, 4 and 6 while in Castlereagh police station. Electrostatic Document Analysis (“ESDA”) evidence was also led which the applicant submitted demonstrated glaring defects in the authentication of the interview notes which recorded his responses to the detectives' questions. All the relevant witnesses, including the applicant, the police officers alleged to have been involved in the ill-treatment and the doctors who had seen the applicant, gave evidence. The voir dire ended on 23 October 1990 when the trial judge rejected the application, admitted the applicant's admissions and statement into evidence and adjourned his detailed judgment in these respects. 18. The applicant did not subsequently give evidence at the trial. However, the trial judge cautioned the applicant, pursuant to Article 4 of the 1988 Order, as regards adverse inferences which could be drawn from this failure to give evidence. 19. On 21 December 1990 the trial judge gave judgment. 20. He first outlined his detailed reasoning behind his decision further to the voir dire. He noted that the only evidence against the applicant was the admissions and statement made while in custody at Castlereagh police station and that there was no forensic evidence against him. However, it was also noted that the applicant's admissions and statement were entirely consistent with the evidence presented in relation to others charged (and later convicted) with offences arising out of the same incident. The trial judge summarised the applicant's evidence of ill-treatment and this summary was later accepted on appeal by the applicant as constituting an accurate account of his evidence in this respect. 21. The trial judge then commented on that evidence. He noted, inter alia, that the applicant did not mention the names of or attempt to describe the two detectives in respect of whom he complained to the doctor on the morning of 17 December 1988; that the applicant had not mentioned to the doctor on that morning the “cigarette treatment”, which the applicant had submitted during the voir dire was the treatment which frightened him most; that there were inconsistencies in the accounts of ill-treatment given by the applicant to the doctor on that morning and his evidence at trial; that not one single objective sign of the ill-treatment which the applicant alleged was found by any of the doctors who examined the applicant; and that on the morning of 18 December 1990, the applicant did not make any complaint about ill-treatment despite the fact that he claimed he had suffered the worst treatment of all during the previous day. 22. Although there had been a period when the monitoring screens (which relayed pictures from cameras in the interview rooms to a central control room) had not been monitored by the duty inspector on that Saturday morning, the trial judge found that this did not coincide with the applicant's evidence as to when he was ill-treated on that day and the trial judge found it impossible to accept that ill-treatment of the nature alleged by the applicant could have gone on without it being picked up by the cameras in the room where the applicant was questioned. On the question of general credibility the judge found that the applicant had repeatedly lied to the court, whereas the detectives involved were not at all shaken by a rigorous cross-examination in their firm denials of the allegations made by the applicant. As to the ESDA evidence, the trial judge found that it did not substantiate the applicant's submission as to the lack of authenticity of the interview notes. 23. Accordingly, the trial judge rejected the applicant's allegations of ill-treatment and found that there was no reason to exclude the applicant's admissions or statement made during his detention in Castlereagh police station. As to the probative value of the applicant's statement, the trial judge found that it was sufficiently detailed to establish the several charges against the applicant and that he was fully entitled to convict the applicant on that basis. On 11 January 1991 the applicant was sentenced to twenty years' imprisonment. 24. On 8 February 1993 the applicant's appeal against conviction, challenging the trial judge's conclusions as to the allegations of ill-treatment and as to the ESDA evidence, was heard by the Court of Appeal of Northern Ireland. That court noted that in such cases the question to be answered is whether the court is satisfied that it is not a reasonable possibility that the accused was ill-treated. It noted, inter alia, that the trial judge had had the great advantage of seeing the applicant give evidence, that both an accused and the police officers involved can equally have an incentive to lie and that many facts are capable of being looked at in two or more ways, but they must be considered sensibly and realistically. Having reviewed the applicant's evidence and the trial judge's conclusions in that respect, that court concluded that it was satisfied that the applicant had not been ill-treated and that his conviction was neither unsafe nor unsatisfactory. Accordingly, on 16 June 1993 the applicant's appeal was rejected. 25. On 17 December 1993 the applicant's appeal against his sentence was rejected. 26. The relevant parts of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provide: “Circumstances in which inferences may be drawn from the accused's failure to mention particular facts when questioned, charged, etc. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused - (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies - ... (c) the court ... in determining whether the accused is guilty of the offence charged, may - (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. ...” 27. The relevant parts of Article 4 of the 1988 Order, relating to when an accused is called upon to give evidence at trial, provide: “(1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless - (a) the accused's guilt is not in issue, or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence. (2) Before any evidence is called for the defence, the court - (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence; and (b) shall tell him in ordinary language what the effect of this Article will be if - (i) when so called upon, he refuses to be sworn; (ii) having been sworn, without good cause he refuses to answer any question; and thereupon the court shall call upon the accused to give evidence. (3) If the accused - (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies. (4) The court or jury, in determining whether the accused is guilty of the offence charged, may - (a) draw such inferences from the refusal as appear proper; (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.” 28. The relevant provisions at the time of the applicant's trial governing the right of access to legal advice were contained in section 15 of the Northern Ireland (Emergency Provisions) Act 1987, of which the relevant parts provided: “(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately. (2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies. (3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence. (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by the section. ... (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it - ... (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (e) by alerting any person, will make it more difficult - (i) to prevent any act of terrorism; or (ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ...” 29. The delay had to be authorised by a police officer of at least the rank of superintendent (section 15(5)(a)) and the detained person had to be told the reason for the delay (section 15(9)(a)). The courts in Northern Ireland have taken the view that the 1988 Order should not be read subject to section 15 of the 1987 Act, since the 1988 Order had come into force after the 1987 Act, and Parliament had not intended that an inference which was permitted by Article 3 of the 1988 Order could not be drawn because of the withholding of the right of access to legal advice given by section 15 of the 1987 Act. 30. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), following a visit to places of detention in Northern Ireland in July 1993, made the following conclusions on Castlereagh Holding Centre in its published report. “Castlereagh Holding Centre was located in a motley collection of prefabricated buildings, within the perimeter of Castlereagh Police Station. The Centre gave the general impression of being in need of some repair. 39. The Centre had 31 cells, four of which were located in a distinct section for women detainees. In addition, there were 21 interview rooms, two rooms for consultations with lawyers, a doctor's surgery, and a scenes of crime unit (the so-called Soco Suite). 40. The cells measured 6m2 and were equipped with a metal frame bed (with mattress and blankets) and a chair. Artificial light was adequate and there was an effective dimmer system, controlled from outside the cell. However, the cells did not benefit from natural light. Further, the ventilation system appeared to function only moderately well and created a rather intrusive level of noise in certain cells. The cells were not fitted with a call system; however, uniformed officers were apparently always on duty in the cell block when persons were being detained. Toilet and shower facilities were located nearby and were in a satisfactory state of cleanliness at the time of the visit; no complaints were heard from detainees about access to those facilities. 41. The interview rooms were divided between one set of 13, located adjacent to the cells, and another set of eight in a separate building. The interview rooms adjacent to the cells measured 6m2 and were equipped with a table, three chairs, and two wall-mounted cameras ... Like the cells, they did not benefit from natural light. The second set of eight interview rooms were equipped in a similar manner; however, they were considerably larger and did benefit from natural light. 42. On examining the main cell/interview room block from outside, it could be seen that the windows had been covered with plyboard, apart from one section of each, which had been fitted with a cowl, allowing some fresh air, but no natural light, to enter the cells and rooms. Questioned about the design of these window coverings, the officer in charge stated that they had been installed for 'security reasons'. 43. The CPT has already expressed the view that police cells should preferably enjoy natural light. This is even more desirable when, as at Castlereagh, persons may be held in custody for an extended period. Further, the absence of natural light in the cells is all the more regrettable given that the majority of the interview rooms at Castlereagh also lacked natural light. Taking into account, in addition, the absence of exercise facilities (cf. paragraph 44), the net result was that a person detained at Castlereagh could effectively be deprived of natural light for several days or more (the only exception being time spent in consultation with his lawyer). In the CPT's view such a situation is not acceptable. The Committee would add that it is confident that means could be found of providing access to natural light to detainees without compromising legitimate security needs. 44. The delegation was told by police officers that there were no facilities for exercise – either outdoor or indoor – for persons detained at Castlereagh. This is another serious shortcoming in an establishment in which persons can be held for up to seven days. 45. To sum up, the existing material conditions of detention at Castlereagh Holding Centre render it inappropriate as a place in which to detain persons for extended periods. The deficiencies as regards access to natural light for detainees and the absence of exercise facilities were the principal failings, but the mediocre ventilation system and the cramped and rather dilapidated nature of the facilities should also be mentioned. All these factors contributed to create a distinctly claustrophobic atmosphere. The CPT recommends that the conditions of detention at Castlereagh Holding Centre be substantially improved without delay, taking into account the above remarks. If such an improvement were not to prove possible, the Holding Centre should be relocated elsewhere, in premises capable of offering better detention facilities. ... 109. ... Even in the absence of overt acts of ill-treatment, there is no doubt that a stay in a holding centre may be – and is perhaps designed to be – a most disagreeable experience. The material conditions of detention are poor (especially at Castlereagh) and important qualifications are, or at least can be, placed upon certain fundamental rights of persons detained by the police (in particular, the possibilities for contact with the outside world are severely limited throughout the whole period of detention and various restrictions can be placed on the right of access to a lawyer). To this must be added the intensive and potentially prolonged character of the interrogation process. The cumulative effect of these factors is to place persons detained at the holding centres under a considerable degree of psychological pressure. The CPT must state, in this connection, that to impose upon a detainee such a degree of pressure as to break his will would amount, in its opinion, to inhuman treatment.” 31. On 10 December 1999 an official announcement was made that the Holding Centre at Castlereagh was to close by the end of December 1999.
| 1
|
train
|
001-92548
|
ENG
|
ARM
|
ADMISSIBILITY
| 2,009
|
GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA
| 3
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
|
1. The applicant, Geraguyn Khorhurd Patgamavorakan Akumb, is a non-governmental organisation (“the applicant organisation”) which was established in 1997 and has its registered office in Yerevan. It was represented before the Court by its head, Mr R. Torosyan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 25 May 2003 a parliamentary election was held in Armenia. The applicant organisation acted as an election observer during the election. According to the applicant organisation, in the pre-election stage it had disclosed numerous violations connected with the use of pre-election funds of certain parties which allegedly led to the free broadcast of the election campaign by certain TV companies being carried out mainly in favour of a number of parties. 4. The applicant organisation alleged that on 26 May 2003 its head had applied to the Central Election Committee (ՀՀ կենտրոնական ընտրական հանձնաժողով – “the CEC”) with letter no. 191, sent by registered mail, having the following content: “To receive copies of documents To Central Election Committee Application Based on the requirements of Article 30 § 1 (2) of the Electoral Code of Armenia and Paragraph 9 of the Rules of Implementation of an Observer Mission, I request that an observer of our organisation [M.S.] be allowed, according to the established procedure, to receive copies of a number of documents related to the parliamentary election of 2003, in particular: 1. all decisions taken by the CEC after 12 March [2003]; 2. all records of the meetings held by the CEC after 12 March [2003]; [and] 3. registers of voluntary payments to pre-election funds and expenses of the parties (unions of parties) participating in the parliamentary election through the proportionate ballot.” 5. The applicant organisation further alleged that on 29 May 2003 the lawyer of the CEC verbally informed its head that the CEC still had time to reply to its request. It also alleged that on the same date its head addressed to the Chairman of the CEC letter no. 205, similarly by registered mail, which stated as follows: “...on 26 May [2003] we applied to the CEC requesting to be allowed to receive copies of a number of documents related to the parliamentary election of 2003. However, so far you have not satisfied our lawful request[. I]n this connection we once again request [that you] provide us with copies of the documents in question.” 6. The Government contested these allegations and argued that the letters in question were never submitted to the CEC. 7. On 3 June 2003 the applicant organisation contested the CEC’s alleged inaction before the courts, seeking to oblige it to provide copies of the requested documents. 8. On 13 June 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) held a hearing on the case. 9. On 19 June 2003 the Kentron and Nork-Marash District Court of Yerevan held another hearing and decided to dismiss the applicant organisation’s application. The District Court found that the applicant organisation had failed to submit any evidence that it had applied to the CEC with a request for copies of documents and had been refused. 10. The applicant organisation alleged that it had not been notified about these hearings and its representative was therefore unable to attend. 11. On 1 July 2003 a copy of this judgment was served on the applicant organisation. On the same date, the head of the applicant organisation requested access to the materials of the case file. The applicant organisation alleged that no reply was received to this request, while the Government alleged that this request was never actually filed with the District Court. 12. On 2 July 2003 the head of the applicant organisation, in reply to another request, was granted access to the case file materials. 13. On 3 July 2003 the applicant organisation lodged an appeal. Attached to its appeal the applicant organisation submitted copies of its letters of 26 and 29 May 2003 and of front pages of two post office receipts. 14. On 19 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան), with reference to Articles 48 and 49 of the Code of Civil Procedure, decided to dismiss the applicant organisation’s appeal on the ground that it had failed to submit evidence that it had sent its letter of 26 May 2003 to the CEC. The Court of Appeal found that the copy of the post office receipt attached to the appeal could not serve as such proof because there was no postmark on it certifying that the letter had been handed in at the relevant post office. 15. The applicant organisation submitted that its representative refused to participate in this hearing because of allegedly having previously been denied access to the case file materials. 16. On 1 September 2003 the applicant organisation lodged an appeal on points of law. Attached to its appeal the applicant organisation submitted copies of the same post office receipts with postmarks dated 26 and 29 May 2003 photocopied on their reverse. 17. On 12 December 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicant organisation’s appeal. The Court of Cassation, having recapitulated the findings of the Court of Appeal, stated, inter alia: “As regards the argument raised in the appeal that letters nos. 191 and 205 have been sent, the [post office] receipts submitted as proof are not proper evidence since they bear no postmarks.” 18. The relevant provisions of the Electoral Code, as in force at the material time, read as follows: “1. Elections are prepared and conducted publicly. ...” “1. [The following physical and legal persons] have the right to an observer mission during an election: (1) international organisations; (2) representatives of foreign states; [and] (3) those [domestic] and foreign non-governmental organisations whose statutory aims include questions of democracy and human rights protection and which do not support [any of] the candidates or the parties. 2. The procedure for carrying out an observer mission shall be established by the Central Election Committee.” “1. Organisations and persons mentioned in Article 28 of this Code may carry out an observer mission after having been accredited by the Central Election Committee. ... 6. The powers of persons carrying out an observer mission shall terminate ten days after the end of an election.” “1. An authorised election assistant, an observer and a representative of mass media have the right: ... (2) to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts. ... 5. No limitations can be placed on the rights of an authorised election assistant, an observer and a mass media representative. ...” 19. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows: “Any party to the proceedings must prove the circumstances on which his [or her] claims and objections are based.” “1. Evidence shall be produced by the parties to the proceedings. ...” “Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant’s rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.” “1. An application seeking to annul unlawful acts of public authorities, local self-government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over cases. ...” “Cases on appeals lodged against judgments of the first instance courts, which have not entered into force, are examined by the Civil Court of Appeal (hereafter, Court of Appeal).” “1. The Court of Appeal is not bound by the appeal and shall examine the case anew on the basis of the existing and newly produced evidence. ...” “Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal, which have entered into force, and judgments of the Commercial Court and the Court of Appeal, which have not entered into force, are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation).” “An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...” “3. The Court of Cassation is not entitled to establish or consider as proven facts which have not been established by the contested judgment or have been rejected by it, to determine whether or not this or that piece of evidence is reliable, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.” 20. The relevant provisions of the Rules, in force at the material time, read as follows: “9. An observer has the right: ... to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts; ...to give press conferences and to address mass media in accordance with the legislation of Armenia. ... 12. An observer shall submit copies of the reports on the summarising of the election results and on the conduct of the election to the Central Election Committee...” “14. The material and financial costs of an observer’s activities shall be borne by the party commissioning the observer or by [the observer’s] own financial means. 15. The relevant election committees shall provide the necessary assistance to an observer in the implementation of the rights envisaged by Paragraph 9 of these Rules.”
| 0
|
train
|
001-23191
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,002
|
ROSCA STANESCU and ARDELEANU v. ROMANIA
| 1
|
Inadmissible
| null |
The applicants, Mr Sorin Roşca Stănescu and Mrs Cristina Ardeleanu, are Romanian nationals, born in 1949 and 1975 respectively and living in Bucharest (Romania). They were represented before the Court by Mr Vasiliu, of the Bucharest Bar. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are journalists. At the material time they were working for the newspaper Ziua. On 11 May 1995 the Bucharest police commenced a judicial investigation concerning a number of articles the applicants had published in Ziua. According to the police, certain statements made about the then Romanian President, Mr Iliescu, amounted to an insult to authority, an offence punishable under Article 238 of the Criminal Code. At their trial in the Bucharest Court of First Instance, the applicants pleaded that Article 238 of the Criminal Code was unconstitutional. The Constitutional Court dismissed their objection in a decision of 6 March 1996, noting that the purpose of Article 238 of the Criminal Code was to uphold the authority of the State and that it was necessary to punish such an offence as the authority of the State was a prerequisite for the exercise of State power. The offence therefore involved an insult aimed at authority, not an individual. Furthermore, whether the offence had taken place or not depended on the status of the victim, who had to be someone holding high office within the State. Article 238 was necessary to create an ideal climate of order and perfect security for people entrusted with important duties under the Government’s programme. The crucial requirement for the charge of insult to authority to be made out was that the offence committed should have been such as to undermine authority, for if that condition was not satisfied, the offence did not constitute an insult to authority but an offence against an individual, even if it had been committed against a person holding high office within the State. The applicants appealed against the Constitutional Court’s decision. On 24 October 1996 the Bucharest Court of First Instance found the applicants guilty of the offence of insult to authority provided for in Article 238 of the Criminal Code on the ground that in articles published from 9 May 1995 onwards in Ziua they had denigrated or even insulted the Romanian President, Mr Iliescu, through tendentious or false statements. The court noted, in particular, that in an article published on 9 May 1995, the first applicant had called the Romanian President, Mr Iliescu, a murderer, accusing him of having ordered the distribution of arms on 22 December 1989 and hence of having deliberately triggered off the ensuing “genocide”. The Court of First Instance also noted that the applicants had stated in an article published on 31 May 1995 that Mr Iliescu had been recruited by the KGB while he was studying in Moscow. The court sentenced the first applicant to one year’s imprisonment and the second to two years’ imprisonment. The applicants appealed against that decision. On 19 November 1996 the Constitutional Court dismissed the applicants’ appeal against its decision of 6 March 1996, holding that Article 238 of the Criminal Code was compatible with the Constitution and Article 10 of the European Convention on Human Rights. The appeal against the judgment of 24 October 1996 was allowed by the Bucharest County Court in a decision of 24 March 1997 against which no further appeal lay. The County Court acquitted the applicants, holding that the provisions of Article 238 of the Criminal Code were not applicable to the press, as the statements in question related to political matters, for which the freedom of expression as safeguarded by Article 10 of the Convention was broader. Lastly, the County Court considered that the applicants could not be punished otherwise than by the application of rules of professional conduct. The relevant provisions of the Criminal Code are the following: OFFENCES AGAINST DIGNITY “Anyone who disparages the reputation or honour of another through words, gestures or any other means, or by exposing him to mockery, shall be liable to imprisonment for between one month and two years or to a fine. ... The prosecuting authorities are seised of the case on a complaint by the victim. ...” “Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and one year or to a fine.” “Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.” OFFENCES AGAINST AUTHORITY “Public disparagement of or threats against a person belonging to one of the categories referred to in Article 160 in connection with their activity and of a nature to undermine authority shall be punished by imprisonment for between six months and five years. ...” “Insults, defamation or threats uttered directly or by direct means of communication against a civil servant holding an office which involves the exercise of State authority in the performance of his duties or on account of acts carried out in the performance of his duties shall be punished by imprisonment for between three months and four years. Assault or any other act of violence together with infliction of bodily harm on the persons referred to in the first paragraph during the performance of their duties or on account of acts carried out in the performance of their duties shall be punished by imprisonment for between six months and seven years and, in the case of serious bodily harm, by imprisonment for between three and twelve years. Where the offences referred to in the preceding paragraphs have been committed against a member of the national legal service, police officer, gendarme or other member of the military, the maximum sentence shall be increased by three years”.
| 0
|
train
|
001-60166
|
ENG
|
FRA
|
CHAMBER
| 2,002
|
CASE OF DEL SOL v. FRANCE
| 1
|
No violation of Art. 6-1
|
Nicolas Bratza
|
8. By a judgment of 6 October 1995, the Paris tribunal de grande instance made a divorce order terminating the marriage of Mr and Mrs Del Sol, ordered the liquidation and partition of the matrimonial property, set the level of maintenance to be paid to the applicant at 1,300 French francs (FRF) monthly and dismissed a claim for damages by the applicant. 9. On 8 December 1995 the applicant appealed against that judgment, stating, inter alia, that her husband, the petitioner in the proceedings, had failed to satisfy the conditions set out in the Civil Code, as he had no rights in the assets he had offered to leave her. She argued in the alternative that a divorce would cause her exceptional hardship and that her husband's petition should be dismissed in accordance with Article 240 of the Civil Code, which empowered the court to dismiss a divorce petition if the respondent showed that “the divorce would cause the respondent ... or the children exceptional material or psychological hardship ...”. The applicant also sought maintenance in the form of monthly payments of FRF 3,000. 10. On 25 February 1997 the Paris Court of Appeal upheld all the provisions of the impugned judgment, with the exception of the decision relating to maintenance, which was reduced to FRF 1,000 monthly. It held, inter alia, that the applicant's husband satisfied all the conditions on which the admissibility of the divorce petition depended, as he had offered to assign to the applicant his rights in property which the couple jointly owned in Italy. It further held that the applicant had failed to show that the divorce would cause her exceptional hardship, either psychologically or materially. 11. On 20 May 1997 the applicant applied to the Legal Aid Office at the Court of Cassation for legal aid to enable her to appeal to that court against the Court of Appeal's decision. Her application was refused on 2 April 1998 on the ground that no arguable ground of appeal could be made out against the impugned judgment. The Legal Aid Office noted, however, that the applicant satisfied the means test for legal aid. 12. On 22 May 1998 the applicant appealed against that decision. By an order of 11 June 1998 the President of the Court of Cassation upheld it, holding that the Legal Aid Office had “found no arguable ground of appeal after assessing the facts of the case in its unfettered discretion”. 13. The French system of legal aid enabling persons of limited means to assert their right through the courts was established by Law no. 91-647 of 10 July 1991 and its implementing Decree no. 91-1266 of 19 December 1991. Under Article 33 of the decree: “Applications for legal aid ... shall contain the following information: ... the purpose of the application and a brief summary of the reasons”. Applications for legal aid are examined by the legal aid office of the court dealing with the case in respect of which the application is made. The Legal Aid Office at the Court of Cassation is composed of a judge of that court, who acts as its president, the senior registrar who acts as vice-president, two members chosen by the Court of Cassation, two civil servants, two court officers one at least of whom must be a lawyer and a member appointed by the general public (section 16 of the Law). The Legal Aid Office may refuse an application under section 7(3) of the Law, which provides: “In cases before the Court of Cassation, an application for legal aid shall be refused if no arguable ground of appeal can be made out.” An appeal lies against a decision of the Legal Aid Office to the President of the Court of Cassation (section 23 of the Law).
| 0
|
train
|
001-95353
|
ENG
|
MKD
|
CHAMBER
| 2,009
|
CASE OF KAMBERI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4
|
Violation of Article 6 - Right to a fair trial
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
4. The applicant was born in 1949 and lives in Gostivar. 5. In 1968 the then Assembly of the Municipality of Gostivar expropriated, inter alia, a plot of a construction land (“the property”) from the applicant's late father with the stated aim of building a nursery school. Compensation was to be determined by a separate decision. 6. On 7 January 1996 the applicant requested the then Gostivar Municipal Court, in non-contentious proceedings, to award him compensation according to the market value of the property. Three other persons joined these proceedings. 7. On 22 September 1999 the Gostivar Court of First Instance (“the first-instance court”) upheld the applicant's request and ordered the Municipality of Gostivar to compensate him for the expropriated property. It further dismissed his request against the State for lack of standing. On 24 February 2000 the Skopje Court of Appeal quashed that decision arguing, inter alia, that the lower court had incorrectly specified the award. 8. Between 25 January 2001 and 19 November 2003 the Skopje Court of Appeal ordered retrial on three occasions. 9. On 20 June 2005 the first-instance court awarded the applicant compensation in the amount specified by an expert and ordered its joint payment by the State and the nursery school. It also ordered that the latter reimburse the applicant for his legal costs. 10. On 30 November 2005 the Court of Appeal upheld the lower court's decision in respect of the awarded compensation and remitted the remainder for a fresh consideration. 11. On 26 January 2006 the Solicitor General submitted an appeal on points of law before the Supreme Court. On 14 February 2006 the applicant submitted his observations in reply. 12. On 10 February 2006 the applicant sought enforcement of the Appeal Court's decision of 30 November 2005. He proposed that the award be transferred to his bank account. On 24 February 2006 the first-instance court requested the applicant to pay the court fees. 13. On 21 March 2006 the public prosecutor lodged a request for protection of legality with the Supreme Court. 14. On 14 April 2006 the applicant again requested enforcement of his claim established by the court decision of 30 November 2005. His request was granted on 19 April 2006. 15. On 22 June 2006 the applicant and the State concluded an out-of-court settlement (вонсудска спогодба) (“the settlement”) under which the State undertook to recognise the applicant's title to the property (право на сопственост); to register him as a co-owner in the land registry; and to withdraw extraordinary remedies submitted on its part. The applicant agreed to withdraw his request for enforcement and to refrain from claiming any payment in respect of the above decisions. 16. The enforcement proceedings were terminated by a decision of the Skopje Court of First Instance of 13 September 2006. 17. Notwithstanding the settlement, the request for the protection of legality was not withdrawn. On 18 April 2007 the Supreme Court granted this request and quashed the lower courts' judgments in respect of the awarded compensation. The court dismissed the applicant's objection that the above request should be rejected as the parties have concluded the settlement. It held that the lower courts did not give sufficient reasons in their judgments and that it was not clear who was required to pay the compensation. The court, however, rejected the appeal on points of law lodged by the Deputy Solicitor General as it found that both parties withdrew their submissions stating that they have settled. 18. The proceedings resumed before the first-instance court. On a hearing held on 13 July 2007, the applicant confirmed that the property had been restored to him and withdrew his compensation claim. The first-instance court acknowledged the withdrawal.
| 1
|
train
|
001-58256
|
ENG
|
ESP
|
CHAMBER
| 1,998
|
CASE OF CASTILLO ALGAR v. SPAIN
| 3
|
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
| null |
7. Mr Ricardo Castillo Algar was born in 1947 and lives in Madrid. At the material time, he was a lieutenant–colonel in the infantry and attached to the Spanish Legion. 8. By an order (auto de procesamiento) of 18 December 1989 investigating judge no. 1 (juez togado militar central) at the Madrid Central Military Court (tribunal militar central) charged the applicant with having set up, to the detriment of the Armed Forces Treasury and contrary to Article 189 § 1 of the Military Criminal Code, an unregulated private fund that was not subject to tax or audit by the tax authorities. 9. On the applicant’s appeal, the Central Military Court set aside the order on 19 March 1990 and then on 12 July 1990 held that there was no case to answer. 10. The public prosecutor's office appealed on points of law. In a judgment of 20 January 1992 the Supreme Court (Military Division) allowed the appeal and quashed the Central Military Court’s decision that there was no case to answer, holding that the facts of the case “could be considered, solely for the purposes of the investigation ... and without prejudice to whatever subsequent classification might be adopted, to constitute an offence against the Armed Forces Treasury under Article 189 § 1 of the Military Criminal Code”. The Supreme Court added, however, that that conclusion, while sufficient to justify its quashing the impugned decision, was not to influence the courts below in their decisions on the merits. 11. The applicant’s constitutional appeal (recurso de amparo) against the judgment of 20 January 1992 was dismissed by the Constitutional Court on 23 March. 12. Consequently, on 6 May 1992 the investigating judge issued a fresh order in which he charged the applicant with the same offence. 13. On 11 May 1992 the applicant appealed against that second order. Repeating the submissions he had made in his first appeal to the Central Military Court, the applicant contended in particular that the decisions in his case had been inconsistent, despite the fact that they had been based on the same facts and there was no new evidence. He said that the decision of 19 March 1990 had been final (see paragraph 9 above) and submitted that by charging him a second time contrary thereto the investigating judge had acted arbitrarily, as had the Supreme Court in quashing the Central Military Court’s decision that there was no case to answer (see paragraph 10 above) without considering the merits. 14. On 7 July 1992 the Central Military Court dismissed the applicant’s appeal and upheld the order of 6 May. There were three military judges (vocales togados generales militares) in the chamber that heard the appeal, including E.S.G., the president (auditor presidente general consejero togado), and R.V.P., a judge (vocal togado general auditor). In its decision, the chamber held in particular: “... It suffices to read [the Supreme Court’s judgment of 20 January 1992] to infer that it found, in the ‘as to the law’ section, that there was sufficient evidence to allow of the conclusion that a military offence has been committed, that there were no grounds in law for invalidating the classification (tipicidad) of the offence adopted in the original proceedings and insufficient grounds for setting aside [the charges] and disregarding the prima facie evidence of the commission of an offence ... on which [the charges] had been based.” In the light of the Supreme Court’s judgment and the constitutive elements of the offence under Article 189 § 1 of the Military Criminal Code, the chamber held that the order appealed against satisfied the conditions as to validity laid down by Organic Law no. 2/1989 and that the investigating judge’s findings on the facts of the case had been reasonable and not arbitrary. 15. On 6 April 1994 the three military judges sitting in the Central Military Court (see paragraph 13 above) made an order (providencia) setting the applicant’s case down for trial on 18 May. It was also indicated in the order that the names of the two officers (vocales militares) who were to complete the trial chamber would be drawn by lot (insaculación), it being a statutory requirement that the chamber be mixed (escabinado), comprising three military judges (vocales togados) and two officers. The order was served on the applicant’s lawyer that same day and on 13 April he was given the name of the two officers on the bench. 16. On 25 May 1994 the chamber of the Central Military Court sitting in the applicant’s case found him guilty of the offence as charged and sentenced him to three months and one day's imprisonment. The chamber was presided over by E.S.G. and included the military judge, R.V.P., who acted as the reporting judge. 17. The applicant appealed on points of law to the Supreme Court. He maintained that the chamber that had tried him could not be considered impartial as two of the judges, E.S.G. and R.V.P., had previously sat in the chamber that had heard his appeal against the order of 7 July 1992 by which he had been charged. 18. On 14 November 1994 the Supreme Court (Military Division) dismissed the appeal. In so deciding, it found in particular that the applicant had failed to challenge the judges whom he accused of bias even though he had had an opportunity to do so, his lawyer having been informed of the composition of the chamber when it was constituted and before the trial began on 18 May 1994 (see paragraphs 22–23 below). Nevertheless, the Military Division considered the merits of the argument that the Central Military Court had not been impartial. It held that the decision to dismiss the applicant’s appeal could not be regarded as being part of the investigation of the case. In its reasons for dismissing the appeal, the Central Military Court had confined itself to noting that the Supreme Court did not disagree with the investigating judge’s finding that there was evidence of guilt. The Military Division took the view that the dismissal of the appeal accordingly could not be considered to have been an investigative measure capable of undermining the objective impartiality of the chamber that had ruled on the merits of the case. 19. The applicant then lodged an amparo appeal with the Constitutional Court relying, inter alia, on his right to a fair hearing by an independent and impartial tribunal, as guaranteed by Article 24 § 2 of the Constitution (see paragraph 21 below). 20. On 20 February 1995 the Constitutional Court, entirely agreeing with the reasoning of the Supreme Court (Military Division), dismissed the applicant’s appeal. 21. Article 24 of the Constitution provides: “1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights. 2. Likewise, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent...” 22. The relevant provisions of Organic Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows: “Judges, presidents and members of military tribunals ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part [they] may be challenged.” “[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds: ... 5. if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness; 6. if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection; ... 11. if he has taken part in the same proceedings in another capacity.” “... If the tribunal or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties’ right of challenge. No appeal shall lie against such an order.” 23. Under section 56 challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty–eight hours before the hearing unless the ground comes to light subsequently. 24. As regards orders by which an accused is charged (auto de procesamiento) and appeals against such orders, the Organic Law provides: “Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them... The charges shall be brought by an order (auto), in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused’s release or detention pending trial...” “... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by which the accused is charged within five days after [its] service...” “... If the appeal against the order by which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include on the case file or which were referred to in the initial pleading on appeal.” 25. In a judgment of 8 February 1993 the Supreme Court decided a case in which the trial court had been presided over by a judge who had previously made the order by which the accused had been charged. The Supreme Court held: “... Consequently, if a judge, after sitting in the court that made the order by which the accused was charged – which order undoubtedly presupposes an assessment, albeit a provisional one, of the issue of guilt – and, in order to do so, having earlier had to hear the accused or thoroughly examine the [result of the] investigative steps taken in order provisionally to assess whether there was criminal liability, subsequently sits in a court that has to hear and decide the merits of the same case ..., it is [legitimate] to consider that [the person] charged and later tried by [that judge] may be concerned that his case will be considered and tried without the maximum guarantees of impartiality...”
| 1
|
train
|
001-5033
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,000
|
DONNELLY v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Christos Rozakis;Nicolas Bratza
|
The applicant is British citizen, born in 1945 and resident in Alderley Edge, Cheshire. He is represented before the Court by Ms Nicola Finnerty, a solicitor practising in London. A. On 10 May 1989, the applicant was arrested for obtaining property by deception in connection with fraudulent claims against the Department of Health and Social Security (DHSS). He was subsequently charged with his wife of two counts: Count 1: - Obtaining property by deception - dishonestly obtaining £ 32,068.01 in unemployment and supplementary benefits and income support payments from the ... “DHSS” between 1st February 1984 and 9th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings. Count 2: - Obtaining property by deception - dishonestly obtaining £8,441.30 in housing benefits from Maccesfield Borough Council between 1st February 1984 and 9th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings and fulfilled the requirements for eligibility for unemployment and supplementary benefits and income support payments. After committal for trial in January 1991, the first pre-trial hearing was held in the Crown Court on 3 March 1991. The applicant and his wife were jointly represented and pleaded not guilty. The applicant received legal aid for representation by solicitor and counsel. On 27 March 1991, at the second pre-trial hearing, counsel informed the court that he was unable, due to a conflict of interest, to represent both the applicant and his wife and that the applicant would have to instruct fresh lawyers. The judge ordered the defendants to serve their accountant’s report on the prosecution within 28 days. A problem with the payment of the accountant’s fees was drawn to the judge’s attention. On 10 June 1991, the applicant’s counsel invited the judge at the third pre-trial hearing to express a view as to the necessity for an accountant’s report, with a view to facilitating the request for legal aid for this purpose. The judge declined, expressing the view that the issues in the trial as to whether the applicant had income and if so, was he dishonest in representing to the authorities that he had none, did not require an accountant. The trial was listed to be heard on 4 November 1991. The Legal Aid Board, on a date unspecified, refused to grant legal aid for an accountant’s report. The applicant has not provided the decision. Correspondence prior to the decision included a warning by the Legal Aid Board that legal aid would be limited to the fees set in the relevant guidelines and that any further amounts would have to be justified on submission of the bill. On 24 September 1991, the applicant’s counsel applied to the trial judge for an adjournment for four months to permit the applicant to apply for a loan to pay for the report, have the report prepared and served on the prosecution. The application was refused, the judge not being satisfied from counsel’s submissions that there was at least an arguable defence that would be supported by such an accountant’s report. On 4 November 1991, without warning his lawyers, the applicant did not appear in court. He provided a letter which stated that he could not have a fair trial without an accountant and gave his reasons for that belief. After some deliberation, the judge decided to proceed with the trial in his absence. His counsel continued to represent him. In summary, the evidence proved that the applicant’s wife had “signed on” every two weeks on the family’s behalf, representing that she and the applicant were unemployed, had no income, capital or savings or property apart from the family home. The prosecution also presented evidence to show that during the relevant period the applicant was working and did have some income, savings and capital. On 8 November 1991, the applicant and his wife were convicted. Sentence was adjourned until 28 February 1992. On that date, his wife was present and represented. The applicant still did not attend. The applicant was sentenced to four years’ imprisonment and his wife to three months’ imprisonment. Joint and several compensation orders were made for repayment of the benefits, plus interest. On 7 October 1996, a single judge of the Court of Appeal refused leave to appeal. On 31 January 1997, leave was granted by the full court. The applicant argued that the counts against him were duplicitous as they purported to cover a single “obtaining” of property whereas in reality they covered multiple “obtainings”. He also argued that the trial should not have continued in his absence and that he should have been granted an adjournment to obtain an accountant’s report. On 12 June 1997, the appeal was heard before the Court of Appeal. It dismissed the appeal against conviction but reduced the applicant’s sentence to three years. In respect of the applicant’s counsel’s arguments that the counts against him were duplicitous, the Court of Appeal held that it was not duplicitous in form. Any duplicity in substance could have been discovered at or before the trial by requiring particulars from the Crown and if duplicity was shown, a motion to quash the indictment could have been moved. No such step had been taken by counsel and it was not being submitted by counsel at the appeal that trial counsel had been flagrantly incompetent in not doing so. The allegation that defence counsel had erred in failing to taking a particular step was not sufficient. It may indeed have been counsel’s view that this method of proceeding was simpler and to the applicant’s advantage. As regarded the refusal of an adjournment and the applicant’s refusal to attend without an accountant, the Court of Appeal noted that “the trouble was that the fee that the Law Society was prepared to pay to cover the accountant for legal aid was not nearly as much as the accountant wanted and the <applicant> was reluctant to have any other accountant.” It referred to the views of the judges at the pre-trial hearings that the case did not require an accountant. For the applicant to say that if the court did what he wanted he would come to court but that if it did not he would not was totally unacceptable behaviour. The Court of Appeal found no irregularity in the judge’s refusal to order legal aid for an accountant of the applicant’s choice. The applicant had been “utterly pigheaded” and refused to instruct any other accountant. It was also not apparent, if he could obtain an accountant from his own resources, why he waited until 24 September 1991 to request a four month adjournment for that purpose. Counsel had been unable to point to any steps taken between 24 September and 4 November 1991 to obtain an accountant’s report. The applicant’s application to appeal to the House of Lords was dismissed on 16 December 1997.
| 0
|
train
|
001-68385
|
ENG
|
MKD
|
CHAMBER
| 2,005
|
CASE OF DJIDROVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3
|
Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed
|
David Thór Björgvinsson
|
10. The applicant was born in 1923 and lives in Skopje. He worked as a pilot in the Yugoslav Army until he retired in 1968. 11. In former Yugoslavia, the citizens used to pay a tax for housing. On the basis of the accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates. 12. The Yugoslav Army was the single army on the territory of the former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The applicant, as an officer of the Yugoslav Army, paid monthly contributions from his salary to the Yugoslav Army for the construction of army apartments. All army servicemen were entitled to live in army apartments as tenants. 13. On 28 August 1968 the applicant ceased to be an active officer of the Yugoslav Army under an early retirement scheme. At that time, he lived in Belgrade, as a tenant in an apartment which belonged to the army. On an unspecified date the applicant, having found a job in Skopje, sought to obtain the tenancy of an army apartment there. In December 1979, under an agreement between the Yugoslav Army and the Macedonian Council of Ministers, the Socialist Republic of Macedonia (at that time a member of the Yugoslav Federation) obtained the possession of the applicant’s army apartment in Belgrade in exchange for an apartment in Skopje, which remained the property of the Socialist Republic of Macedonia but was to be used by the Yugoslav Army. In July 1980 the applicant moved into the apartment in Skopje. 14. On 29 December 1990 the Federal Assembly of the Socialist Federal Republic of Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (the “Z.S.О.J.N.A.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for development of the construction land. Section 26 of that law provides that the same purchase conditions apply to apartments which do not belong to the army, as it was in the case of the applicant. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see paragraphs 43-46 below). 15. Following the fall of Yugoslavia and a referendum held on 8 September 1991, the former Yugoslav Republic of Macedonia declared independence. On 17 November 1991 it adopted a Constitution (Устав на РМ) and the Law on the Implementation of the Constitution (Уставен Закон за спроведување на Уставот). According to the Constitution the laws from former Yugoslavia remain in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav Army from Macedonian territory. 16. On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Federal Yugoslav Ministry of Defence. According to this agreement the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. The Macedonian Government in 1992 and 1994 enacted regulations implementing this agreement. In 1992 the Macedonian Government enacted Regulations on the Terms of Purchase of the Apartments Obtained by Succession from the Yugoslav Army (Уредба за продажба на државниот стамбен фонд наследен од ЈНА) (“U.P.D.S.F.N.J.A.”), according to which present and former army servicemen living in apartments owned by the Macedonian Ministry of Defence, could purchase them under the Z.S.О.J.N.A 17. From the Ministry of Defence’s decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange. 18. In 1993 an amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“the Z.P.S.O.S.”) was promulgated in the Official Gazette. Under the law their tenants were entitled to purchase them on credit and at a beneficial price. Unlike the Z.S.О.J.N.A., the law did not provide for a price adjustment for the amount of the contributions made towards the construction of “socially owned” apartments and the development of the construction land, despite the fact that the tenants had also paid them. 19. On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government’s Regulations on the ground that they had been contrary to the 1991 Constitution. In particular, the court stated that: (a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; (b) the 1991 Constitution had abolished all the privileges enjoyed by army servicemen; and (c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court’s decision. 20. Between 1992 and 1994, the applicant requested the Macedonian Ministry of Defence to purchase the apartment in Skopje where he had been living since 1980 as a tenant of the Yugoslav Army in accordance with the Z.S.О.J.N.A. and the U.P.D.S.F.N.J.A. The Ministry of Defence informed him, and seven other servicemen of the former Yugoslav Army, that the examination of their requests had been postponed due to some formalities. 21. On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. On 29 December 1993 this was refused by the Constitutional Court. 22. On 6 February 1995 the applicant submitted another request to purchase the apartment to the President of the Republic who transmitted it to the Ministry of Defence. 23. On 22 March 1995 the Ministry of Defence informed the applicant that his request to purchase the apartment had been dismissed on the ground that the U.P.D.S.F.N.J.A. did not apply to apartments other than those which belonged to the Yugoslav Army. In particular, the Ministry stressed that Section 2 § 2 of the 1992 Regulation on the Sale of Apartments for which the Republic has Responsibilities and Rights (Одлука за продажба на становите на кои права, должности и одговорности во поглед на располагањето има Републиката) (“O.P.S.P.D.O.R”) provided that the U.P.D.S.F.N.J.A. did not apply to apartments for official use of the Government. The Ministry argued that on 21 September 1994 the Government had taken a similar position in respect of this issue. Therefore, the applicant would have had the right to purchase the apartment under the U.P.D.S.F.N.J.A. only if it had concerned an apartment owned by the said Ministry. 24. On 16 February 1995 the applicant instituted proceedings before the Skopje I Municipal Court (Општински суд Скопје I) against the Ministry of Defence, requesting that the apartment be sold to him under an adjusted price in accordance with the Z.S.О.J.N.A. He also invoked Articles 4 and 5 of the Law on the Implementation of the Constitution. 25. On 25 April 1995 the court granted the applicant’s request. The court stated, inter alia, that the applicant, as an army officer, had the right to purchase the apartment under an adjusted price. In particular, the purchase price should be reduced by the revalorised amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for development of construction land. The Municipal Court found that the Macedonian Ministry of Defence was under an obligation to pay the price difference for the apartment. 26. The Macedonian Ministry of Defence appealed against this decision on grounds that in accordance with a Government Decision the Z.S.О.J.N.A. only applied to apartments owned by the Macedonian Army. 27. On 1 February 1996 the Skopje Appellate Court (Окружен суд Скопје) upheld the decision of the lower court on the ground that the applicant, as a former officer of the Yugoslav Army, had paid contributions for the construction of army apartments and, therefore, was entitled to purchase an apartment under an adjusted price in accordance with the Z.S.О.J.N.A. The court held, inter alia, that the lower court had reasoned correctly when it had connected the benefit of purchasing an apartment under an adjusted price to the status of the applicant as a former army officer, who had been paying contributions, and not to the identity of the owner of the said apartment. 28. On 17 April 1996 the applicant and the Government concluded a purchase contract for the apartment on the basis of the Municipal and Appellate Courts’ judgments. The applicant thus purchased the apartment with a price reduced by the amount of contributions he had paid to the former Yugoslav Army. On 15 May 1996 the Skopje I Municipal Court authorised the contract. 29. From the copy of one document issued by the Public Enterprise for Administering State Property (Јавно претпријатие за стопанисување со стамбен и деловен простор на Република Македонија), it may be deduced that the applicant paid for the apartment in 1996 at the latest. It is not clear whether later the Ministry of Defence reimbursed the Housing Fund the price difference for the apartment. 30. In the meantime, the Ministry of Defence filed an appeal on points of law (ревизија) with the Supreme Court (Врховен суд на РМ) against the judgment of the Appellate Court of 1 February 1996. 31. Upon the appeal on 18 December 1997 the Supreme Court quashed the lower court’s judgment and dismissed the applicant’s request to purchase the apartment for a reduced price. 32. The Supreme Court noted that in accordance with Article 5 § 1 of the Constitutional Law on the Implementation of the Constitution of the former Yugoslav Republic of Macedonia the federal laws of former Yugoslavia remained in force as Macedonian laws provided that they were harmonised with the Constitution. The powers which were previously exercised by the federal organs were allocated to the bodies of the former Yugoslav Republic of Macedonia. The Z.S.O.J.N.A. remained in force as Macedonian law. 33. The Supreme Court found that under the Z.S.O.J.N.A. it was for the Yugoslav Army to make up for the price difference for the adjustment of the prices of the apartments which were not owned by the Yugoslav Army. However, on 17 November 1991 the former Yugoslav Republic of Macedonia enacted its Constitution and became an independent State. Since then there was no Yugoslav Army nor was its housing fund on the territory of the former Yugoslav Republic of Macedonia. Therefore, the applicant could not have the price for his apartment reduced as there was no Yugoslav Army to cover the price difference. 34. The court did not mention at all the decision of the Constitutional Court and the S.P.O.V.P.N.T.R.M. Nor did it mention that the applicant had already purchased the apartment by contract, or that the Ministry of Defence had exchanged a number of apartments owned by the Housing Fund and inhabited by other servicemen. The applicant was served with the Supreme Court’s judgment on 4 March 1998. 35. The parties have not indicated whether the applicant was formally registered as the owner of the apartment in the Land Registry (Државен завод за геодетски работи) after their purchase agreement had been authorised by the Municipal Court in 1996. From the documents it appears the applicant had already recorded his title over the apartment. In addition, the parties have not indicated whether the Government have taken any legal action to enforce the Supreme Court’s judgment of 18 December 1997, for example by bringing proceedings for the rescission of the 1996 purchase agreement (see paragraphs 60-65 below). There is no information that such proceedings have ever been instituted. 36. The applicant still lives in the apartment in question. 37. Section 110 provides, as far as relevant, that the Constitutional Court decides on the conformity of laws with the Constitution. 38. Section 112 § 1 provides, inter alia, that the Constitutional Court shall repeal or invalidate a law if it determines that it does not conform to the Constitution. 39. Section 112 § 2 provides that the decisions of the Constitutional Court shall be final and executive. 40. Section 4 provides that all issues of succession arising out of the break-up of Yugoslavia shall be regulated by way of treaties with the other former republics. 41. Section 5 §§ 1 and 4 provide that the existing federal laws of former Yugoslavia shall be in force in the former Yugoslav Republic of Macedonia with the exception of the laws regulating the organisation and competence of the Yugoslav federal organs. 42. Section 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day when the Constitution was promulgated. 43. Section 1 provides that the law in question regulates the housing of present and former Yugoslav Army servicemen and their families. 44. Section 21 § 1 provides that the purchase price for an apartment owned by the Yugoslav Army shall be determined on the basis of the apartment’s re-assessed construction value, its quality, equipment, location and other similar factors. The price thus determined shall be reduced by the amortisation of the apartment, but not more than 50% of the total amount of amortisation. 45. Section 21 § 2 provides that when an apartment is purchased by an active or retired army serviceman, the purchase price shall be reduced by the adjusted (re-assessed) amount of the monthly contributions paid by the servicemen for construction of army apartments and improvement of construction land. 46. Section 26 provides that when an army serviceman mentioned in Section 21 § 2 wishes to purchase an apartment which is not owned by the army, the army shall pay to the owner of the apartment the price difference between the adjusted and the normal purchase price. 47. According to Section 2 § 2 of that agreement, concluded between the Macedonian Ministry of Defence and the former Yugoslav Army, army apartments should be sold to army servicemen under the conditions set forth in the 1990 former Yugoslav Law on the Housing of Army Servicemen (Z.S.O.J.N.A.). 48. Section 9 of the said agreement provides that the former Yugoslav Army shall not have any right to impose further obligations on the Macedonian Ministry of Defence after the signing of the agreement. 49. Section 10 provides that all other rights and obligations which the former Yugoslav Army had on the territory of the former Yugoslav Republic of Macedonia until 28 February 1992 in connection with real property, housing fund and business premises owned by it shall be transferred to the Macedonian Ministry of Defence. 50. Section 134 of the Law on Defence (Закон за одбрана) provides that real property which was owned by the former Yugoslav Ministry of Defence on the territory of the former Yugoslav Republic of Macedonia shall become the property of the former Yugoslav Republic of Macedonia. 51. Section 1 provides that this law regulates the conditions, manner and procedure for the sale of socially owned apartments. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land. 52. Section 2 provides that a decision to sell the (socially) owned apartment will be issued by its owner (the State) within 30 days from the day when this law enters into force. 53. Section 3 § 1 provides that the socially owned apartment may be sold to the tenant of that apartment or to members of his family. 54. Section 3 § 2 provides that if the owner of the apartment (the State) does not issue a decision to sell that apartment within the time limit specified in Section 2, then the holder of tenancy right may within 30 days request the appropriate court to issue a decision in non-contentious civil proceedings to replace the sale contract. 55. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land. 56. Section 384 provided that the filed appeal on points (ревизија) of law does not adjourn the execution of judgment against which it has been filed. 57. Section 387 provided that parties may present new facts and introduce new evidence in the proceedings only if these concern essential violations of the provisions for civil procedure for which an appeal on points of law is permitted. 58. Section 393 provided that the Supreme Court may dismiss an appeal on points of law as unfounded if it determines that the grounds it must examine ex officio, or which were included in the appeal, are ill-founded. 59. Section 395 § 1 provided that when the Supreme Court finds that the substantive provisions of an act are wrongly applied by the lower courts, it shall grant the appeal on points of law (ревизија) and deliver a judgment on the merits. 60. Section 144 § 3 provides that the lawful acquiring of ownership over a property does not have any bearing on the rights of other persons over that property. 61. Section 148 § 1 provides that the ownership title over real estate obtained by a legal act is acquired by recording that right (act) in the public records for registering real estate rights unless otherwise provided by the law. 62. Section 151 § 1 provides, inter alia, that the ownership title over a real estate is acquired by virtue of the recording. 63. Section 151 § 2 provides that the removal of ownership title from the public records, on the ground that the recording was incorrect, may be initiated by an action within three years from the day when the real estate was recorded. 64. Section 5 provides, inter alia, that the Land Registry (Државен завод за геодетски работи) is responsible for recording property rights over real estates. 65. Section 50 provides, inter alia, that the Land Registry shall record ownership rights over real estates.
| 0
|
train
|
001-93429
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,009
|
M.W. v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicant, Mr M. W., is a British national who was born in 1958. He was represented before the Court by Mr J. Welch, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is homosexual. He lived with his partner, M., for twentythree years until the latter’s death on 10 April 2001. From the late 1980s onwards, they resided in jointly-owned properties. The applicant states that he and his partner were financially interdependent, pooled their income and that each had designated the other as his heir. Their relationship was accepted by family and friends, and, according to the applicant, their degree of mutual commitment was such that had they been a heterosexual couple they would have married. Around two weeks after M’s death, the applicant asked a social worker whether he could claim Bereavement Payment (a lump sum currently worth GBP 2,000). He was advised that the benefit was only payable to the survivor of a married couple, and so he did not formally claim it. The applicant complained of his ineligibility for bereavement benefits to his Member of Parliament (“MP”). In a letter dated 17 July 2001, the Chief Executive of the Benefits Agency confirmed to the MP that: “... entitlement to bereavement benefits is based on legal marriage between couples at the time of death”. The applicant also wrote to the Prime Minister. This letter was forwarded to the Department of Work and Pensions, which replied on 21 September 2001 stating that: “Marriage is a cornerstone of the contributory benefits system and all rights to contributory benefits derived from another person’s contributions are based on the concept of legal marriage. Changing or widening the definition of marriage would have far reaching implications and could not be done in isolation.” The conditions for the receipt of Bereavement Payments are contained in Section 36 of the Social Security Contributions and Benefits Act 1992, as amended with effect from 9 April 2001 by the Welfare Reform and Pensions Act 1999. The relevant parts of this provision read as follows: “(1) A person whose spouse dies ...shall be entitled to a bereavement payment if – (a) either than person was under pensionable age at the time when the spouse died or the spouse was then not entitled to a Category A retirement pension...; and (b) the spouse satisfied the contribution condition for a bereavement payment... (2) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse’s death.” Under the Social Security (Claims and Payments) Regulations 1987, a claim for Bereavement Payment must be made within three months from the date of the spouse’s death (Regulation 19). Section 4 of the Human Rights Act 1998 Act provides (so far as relevant): “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ... (6) A declaration under this section ... - (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and (b) is not binding on the parties to the proceedings in which it is made.” The Civil Partnership Act 2004, which took effect on 5 December 2005, broadened eligibility for Bereavement Payment. It amended Section 36(1) of the 1992 Act so as to include persons who have entered into a civil partnership.
| 0
|
train
|
001-102023
|
ENG
|
UKR
|
CHAMBER
| 2,010
|
CASE OF RATUSHNA v. UKRAINE
| 3
|
No violation of Art. 8;Violation of Art. 13;Remainder inadmissible
|
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
|
5. The applicant was born in 1922 and lives at 4a V. Street in Nova Obodivka. Between 2004 and 2007 she had some health problems, having suffered, in particular, from a stroke, pneumonia and atherosclerosis. 6. On 6 March 2002 an operational enquiry officer (оперуповноважений) of the Trostyanets Town Police Department submitted the following report to the chief of police: “... According to the information received in the course of the search operations (оперативно-розшукові заходи), items [earlier] stolen from [a shop in Nova Obodivka] ... were in the possession of [Mr R., the applicant's son] at 14 V. Street in Nova Obodivka. Furthermore, information has been received that the aforementioned person keeps poppy straw and a small calibre handgun. I therefore request that you seek to obtain a search warrant with a view to searching the household of [Mr R.].” 7. On 12 March 2002 the Trostyanets Town Court (“the Trostyanets Court”) issued a ruling stating the following: “The investigator ... has requested the court to issue a warrant for searching the household of [Mr R.], where stolen items could be hidden. Having heard the investigator and having studied the case, the court considers that there are reasons for allowing the application. During the night of 20-21 February 2002, food, liquor and cigarettes worth a total of UAH 1,198.94 were stolen from [a] private [shop] ... in Nova Obodivka ... On 6 March 2002 [an operational enquiry officer] of the Trostyanets Town [Police Department] informed the investigation unit that the stolen items, as well as rifled firearms and drugs, could be stored in the household of [Mr R.]. It can be seen from the investigator's explanations and the material in the case file that there are grounds for considering that the stolen items could be kept at the household of [Mr R.]. Pursuant to Article 177 of the Code of Criminal Procedure, the court: grants the application authorises the search of the household of [Mr R.], who resides at 14 V. Street in Nova Obodivka... The ruling is not subject to appeal.” 8. On 15 March 2002, after the applicant's son, Mr R., arrived at the applicant's house at 4a V. Street, six police officers entered the yard. Having produced the warrant, they conducted a search of the house and the entire property, in the presence of the applicant, Mr R. and two attested witnesses. According to the police report of the same date, the search was held at 8 V. Street and resulted in the discovery of a gas pistol in the cupboard in the living room, a packet of bullets in the attic above the kitchen and a package of cannabis outside on the ground between the barn and the beet-pulp pit. The report contained a remark by Mr R., according to which the search of his mother's house had been unlawful and conducted in spite of her objections. He also contended that the bullets and drugs had been planted by the police officers or their driver during the search. 9. On the same date the police questioned the applicant, who submitted that her son had voluntarily handed over the gas pistol, while the bullets and drugs had apparently been planted by the police, whose actions it had been impossible to follow given the number of the persons involved. 10. On 25 March 2002 the investigator decided that there was no reason to initiate criminal proceedings on account of the discovered drugs and bullets, as they had been found in places unsuitable for storage and it was impossible to prove that Mr R. was responsible. Following additional investigation ordered by the Vinnytsia Regional Prosecutor's Office, on 27 August 2004 the investigator reiterated that conclusion. 11. Between November 1998 and January 2003 Mr R. had an officially registered place of residence in Nova Obodivka. Subsequently, he changed it to 51 K. Street in Trostyanets. 12. On 20 October 2003 the Trostyanets Council issued a certificate to Mr R., at his request, stating that he owned, since 1985, a house, a garage and a land plot at the above-mentioned address in Trostyanets. 13. On 30 August 2004 the Nova Obodivka Council issued similar certificates “to whom [they] may concern” stating that Mr R. did not live and had no property in that village. 14. According to the findings of the criminal investigation into the applicant's complaint concerning the search of her home (see paragraph 22 below), the actual residence of Mr R. with the applicant at 4a V. Street in Nova Obodivka had been confirmed by witnesses living in that village and corroborated by the presence of his personal belongings there and by the fact that he had been paying electricity bills for the household in question. 15. On 1 August 2007 four inhabitants of buildings nos. 47 and 49 in K. Street in Trostyanets gave a written statement that Mr R. had been their neighbour at 51 K. Street between September 2001 and October 2002. They noted that he had been living with and had been taking care of a seriously ill person, Ms D., who had died of cancer in October 2002. The Trostyanets Council certified the authenticity of the above statement. 16. On the same date, the Trostyanets Council issued a certificate to Mr R., stating that between September 2001 and 1 October 2002 he had permanently lived at his own house at 51 K. Street in Trostyanets. 17. The references to 14 V. Street and 8 V. Street in Nova Obodivka in the search warrant and in the police report following the search respectively (see paragraphs 7 and 8 above) were inaccurate. As later found by the domestic investigation authorities and courts, that was a result of a technical error (see paragraphs 22, 25 and 26 below). 18. On an unspecified date in March or May 2002 the applicant complained to the Vinnytsia prosecutor and the Regional Department of the Ministry of the Interior that the search of her house had been unlawful and sought the criminal prosecution of the respective police officers. 19. On 24 May 2002 the second of the above-mentioned authorities wrote a letter to her accepting that her allegations had indeed been confirmed in part. It was noted in the letter that the police officers responsible for the violations of the criminal procedures had been disciplined, while the case file had been sent to the Trostyanets Town Prosecutor's Office (“the Trostyanets prosecutor”) for criminal investigations to be instituted. 20. Between February 2003 and May 2006 the criminal case was closed six times for a lack of corpus delicti in the actions of the police officers and subsequently reopened following the quashing of the respective rulings of the investigating officers either by the prosecution authorities or by courts on grounds of incompleteness of the investigation. 21. On an unspecified date (presumably in 2005) the case file was marked as “classified” for unknown reasons. Following the applicant's administrative claim the Trostyanets Court found the classification of the file unlawful, ordered its declassification and awarded the applicant 300 Ukrainian hryvnias in compensation for non-pecuniary damage. 22. On 12 March 2007 the Vinnytsia prosecutor decided, for the seventh time, to terminate the criminal investigations finding that there had been nothing criminal about the police officers' actions. The fact that there were discrepancies as regards the address indicated in the search warrant (14 V. Street), the search report (8 V. Street) and the actual address of the building where the search had been conducted (4a V. Street) was merely a technical error: the numbering of buildings in the village had changed some time previously, while, in any event, the villagers knew each other and had given the police directions. Having regard to the fact that Mr R. had a registered domicile in Nova Obodivka, kept his gas pistol there and paid the electricity bills, the police had rightly decided that that was his actual place of residence, not in Trostyanets. The prosecutor also considered that there had been a reasonable suspicion that the items stolen from the local shop could have been found at the household of Mr R. He referred in that connection to the early investigation information, according to which a car similar to that of Mr R. had been seen in the shop's vicinity during the night when the theft had taken place. Furthermore, Mr R. was unemployed and had friendly relations with a certain Mr P. previously convicted for thefts. As to the applicant's allegation that the drugs and bullets had been planted by police, it had not been corroborated by any evidence. 23. On 10 May 2007 the Leninskyy District Court of Vinnytsia (“the Leninskyy Court”) quashed the aforementioned decision and ordered an additional investigation. It noted that it remained unclear whether there had indeed been sufficient grounds to believe that the stolen items could have been found at the applicant's home. The court further pointed out that the submissions of the applicant's son that, at the time of the events, he had been living in Trostyanets, where he had been taking care of a severely sick person, had not been verified. 24. On 25 May 2007 the Vinnytsia Regional Court of Appeal (“the Court of Appeal”) quashed the above-mentioned ruling on the prosecutor's appeal and remitted the case back to the first-instance court. 25. On 31 August 2007 the Leninskyy Court found against the applicant, concluding that the search had been duly ordered and held in compliance with the procedural legislation. 26. On 22 November 2007 and 18 June 2008 respectively, the Court of Appeal and the Supreme Court upheld the first-instance court's decision. 27. In June 2002 the applicant lodged a civil claim with the Trostyanets Court against the police seeking compensation, under Article 440-1 of the Civil Code, for non-pecuniary damage on account of the search of 15 March 2002 which she considered to have been in breach of the constitutional guarantee of the inviolability of her home. In substantiation of her claim, the applicant referred to the fact that the warrant on the basis of which the search had been conducted concerned an address different from hers (14 versus 4a V. Street). 28. On 10 December 2002 the court decided that the claim could not be examined under the civil procedure. 29. The applicant appealed. It appears that her appeal was successful, as the examination of the case continued and on 19 February 2003 the case was transferred to the Tulchyn Town Court (“the Tulchyn Court”), with the reasons for the transfer being unknown. 30. On 20 October 2003 the Tulchyn Court suspended the proceedings at the applicant's request pending the outcome of the criminal investigations. 31. On an unspecified date the proceedings were resumed and the case was transferred back to the Trostyanets Court. 32. On 19 June 2008 the applicant increased the amount of her claim. 33. On 26 June 2008 the court found against her. It concluded that there were no grounds for compensation in her case as envisaged by the Law of Ukraine “On the Procedure for the Compensation of Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation Authorities, Prosecutors or Courts” (“the Compensation Act”). In particular, in order for the applicant to be eligible for such compensation, there had to be a guilty verdict in respect of the police officers involved. Given the refusal of the prosecution to institute criminal proceedings in respect of her complaint concerning the alleged unlawfulness of the search, the court considered that the lawfulness of that search was an established fact, which could not be revised within the civil proceedings. 34. The applicant appealed. 35. On 22 August 2008 the Court of Appeal quashed that judgment and discontinued the proceedings, finding that the claim concerned a public-law dispute and thus fell within the administrative rather than civil procedure. 36. On 25 March 2009 the Supreme Court quashed the above-mentioned ruling of the appellate court and remitted the case to it, finding that it had wrongly concluded that the administrative procedure applied to the case, when in fact the claim represented an action in tort related to a search conducted within the framework of criminal investigations. 37. On 7 May 2009 the Court of Appeal quashed the judgment of 26 June 2008 and remitted the case for fresh examination to the first-instance court, pointing out some shortcomings which could only be rectified by a rehearing. Thus, the Trostyanets Court had failed to involve in the proceedings the investigator in charge of the search, as well as the State Treasury. Furthermore, it had not taken into consideration the amendments to the applicant's claim of 19 June 2008. The Court of Appeal also noted in its ruling that the applicable procedure for compensation was envisaged by the Compensation Act, which “directly [concerned] the dispute at issue”. 38. The case remains pending before the Trostyanets Court. 39. Article 30 of the Constitution (1996) guarantees the inviolability of everyone's home. It prohibits entry into a person's home or other property and the examination or search thereof, other than pursuant to a reasoned court decision. 40. Article 162 of the Criminal Code (2001) envisages imprisonment of between two and five years as punishment for unlawful entry into a house or other property and the unlawful examination or search thereof, as well as for other actions in breach of the inviolability of a home committed by an official. 41. Article 177 of the Code of Criminal Procedure (1960) requires that for a search of a house or other property to be conducted, there must be sufficient grounds to believe that the items to be searched for might be found there and a reasoned court decision authorising the search. Such a decision by a court cannot be appealed against. Article 183 of the Code requires the investigating officer in charge of the search to serve the search warrant on the person(s) occupying the respective premises. If the items searched for are not given to the investigating officer voluntarily, the latter must conduct the search forcibly. 42. Article 440-1 of the Civil Code (1963), in force at the material time, provided that compensation for non-pecuniary damage was to be paid by the person who had inflicted that damage, if he or she did not prove his or her lack of guilt. 43. Article 1176 § 2 of the new Civil Code, in force since 1 January 2004, provided for compensation to be paid in respect of unlawful actions of inquiry bodies, prosecution authorities or courts in cases where the claimant had been acquitted by a court's verdict, where an unlawful verdict in his respect had been set aside, or where the criminal or administrative-offence case had been terminated. After the amendments of 1 December 2005, the aforementioned list was replaced by the phrase “in cases envisaged by law”. 44. The relevant provisions of the Compensation Act, as worded before the amendments of 1 December 2005, and the Search and Seizure Activities' Act are summarised in the judgment of Volokhy v. Ukraine (no. 23543/02, §§ 27-28, 2 November 2006). 45. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by the following point: “1-1) where ... unlawfulness of a search conducted in the framework of a criminal investigation or trial ... has been established by a guilty verdict or other judgment of a court (save for rulings on remittal of cases of additional investigation)”.
| 1
|
train
|
001-5359
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,000
|
BROOK v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British national, born in 1949 and living in Surrey, England. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who has run a company specialising in the research, design and manufacture of equipment for the broadcasting industry since 1967, wanted to set up a short wave radio station which would broadcast scientific, technological and media news. None of his proposed programmes had any political content, but were aimed at an audience interested in the technical side of radio. The BBC World Service has a short wave radio licence to broadcast in the United Kingdom and a few other independent stations are also licensed, for example, Voice of America. The applicant wrote to the Foreign and Commonwealth Office on 5 August 1986 (having been told on the telephone that this was the relevant department) to apply for a short wave radio licence. Over the next ten years, the applicant wrote about 150 letters in pursuit of his licence to the Radio Authority, the Home Office and other relevant entities. The Government's line of reply was to acknowledge the applicant's interest without giving any definitive response to his request. On 18 March 1997, the Department of National Heritage wrote to the applicant saying: "...the Department continues to consider the broadcasting policy issues which your proposal for the licensing of short wave frequencies has raised. I am sorry that there has been such a long interval since your original proposal was received and that you still await a decision. ... While I am sorry that the resolution of other domestic broadcasting policy issues have been given greater priority than your request to use short wave frequencies, I am not in a position to give you a firm decision on your proposal. The Department is, however, looking at your ideas and we are discussing them with the Radiocommunications Agency which has overall responsibility for the use of the radio spectrum. I shall write to you again when a decision has been taken." Following this letter, the applicant applied for judicial review of the failure by the Department of National Heritage to take a final decision. In his affidavit to the High Court, the applicant explained that setting up a station would be a much more difficult prospect now and he would no longer wish to do so, but that this was only as a result of the Government's refusal to reach a clear decision at an early stage. Leave to apply was refused by the High Court on 26 June 1997, there being no arguable basis for judicial review. Mr Justice Tuckey, refusing leave, observed: "Whilst I can understand your frustration at the failure of the authorities concerned to consider your proposals more favourably and speedily to the point where (as I understand it) it is now really too late to do anything, I am afraid I can see no arguable basis for judicial review." B. Relevant domestic law and practice The Radiocommunications Agency (“the Agency”), has overall responsibility for the management of the civil electromagnetic spectrum in the United Kingdom, and an obligation to ensure that it is used efficiently. The Agency represents the United Kingdom at the International Telecommunications Union (“ITU” – an agency of the United Nations), who order the way in which the radio spectrum can be shared effectively between nations, such that one country’s transmissions do not interfere with those of another. The Agency also has responsibility for deciding how the civil use of the radio spectrum in the United Kingdom is divided between different users, such as broadcasting, telecommunication, public safety services (Police, Ambulance etc) and hobby radio, etc. A quantity of the radio spectrum is allocated for radio broadcasting purposes. This is in turn divided by the Secretary of State for Trade and Industry (under the provisions of the Broadcasting Acts of 1990 and 1996) between the BBC (the public service broadcaster) and the Radio Authority (“the Authority”). The Authority is a body established by statute (section 83 of the Broadcasting Act 1990), and is responsible for licensing and regulating independent radio services within the United Kingdom. It has statutory duties to increase choice for different tastes and interests, to encourage range and diversity and to ensure fair and effective competition in the provision of sound broadcasting. All radio transmissions require either a licence or a licence exemption under the Wireless Telegraphy Act 1949 (as amended) and, for commercial broadcasts, a licence under the Broadcasting Acts of 1990 and 1996. Licences are awarded by the Authority under open competition. In general terms national licences are considered on the basis of the highest cash bid, whereas the award of local licences takes into account the needs of the community to be served. The Authority seeks the agreement of the BBC and the Agency, so that neither United Kingdom broadcasting services nor non-broadcasting users of the radio spectrum will be adversely affected. In addition the agreement of neighbouring countries is sought. After these negotiations, the Agency is able to issue a licence under the Wireless Telegraphy Act 1949. This system of licensing does not extend to short wave frequencies. Under section 97 of the Broadcasting Act 1990, it is a criminal offence to provide an independent radio service without an appropriate licence.
| 0
|
train
|
001-91560
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,007
|
SUKÜT v. TURKEY
| 3
|
Inadmissible
| null |
The applicant, Mr Osman Suküt, is a Turkish national who was born in 1972 and lives in Kayseri. He was represented before the Court by Mr T. Demirel, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not appoint an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was born in 1972 and lives in Kayseri. At the material time he was a non-commissioned officer with the rank of “staff sergeant tanker” (tankçı üstçavuş) and had been serving in the army since 1990. On 9 July 1997 he received an initial letter from the commanding officer of his regiment, M.S.: “I have been watching your and your family’s lifestyle and behaviour since the day I joined the regiment. Although I have already given you a verbal warning on the subject, I have not noticed any change, either in your appearance or in your behaviour. I have observed that your family (ailece) do not comply with [the rules governing] clothing and behaviour. I shall give you one month. If, on the expiry of this period, I cannot see any change in the areas I have mentioned, I shall bring legal proceedings (kanunî işlem) against you.” In a second letter dated 8 December 1998 the battalion commander, İ.Ü., gave the applicant a warning: “1. According to information obtained, my own observations and those of the regiment commander, your wife dresses in an anti-modern (çağdaşlığa aykırı), Islamic fashion (tesettür kıyafeti), with the head covered. ... 3. I am giving you a warning to ensure that, without delay, you change this negative conduct, which does not correspond to [that expected of] members of the Turkish armed forces (TSK) and their families. ...” In his observations of the same day, the applicant argued: “I have been serving my country for nine years in all circumstances. I consider it an honour ... I have never had any particular links with an ideology or political opinion, whether at work or in my private life. ... I have already had several discussions with my wife about her choice of attire. She has always told me that she saw it as the traditional way to dress and that it had no political connotations. She also said that her private life concerned her alone and that even I could not interfere with her style of dress or her choice to wear the headscarf. Even so, I informed her of all the warnings from my superiors. She replied that she could not understand what was meant by ‘inappropriate conduct for TSK personnel and their families’, adding that she had not displayed any conduct that could harm her country, nation or family, or any immoral attitude. I have done all I can. I have various problems to deal with as we have a two-year-old child.” In three other warning letters, dated 14, 25 and 28 January 1999, the applicant’s superiors reiterated their demands. The applicant defended himself in similar terms. According to the information and documents submitted by the Government, the head of the personnel office inspected the applicant’s confidential service record (gizli sicil dosyası), the records of his salary and allowances (özlük dosyaları) and “other personal files”. Taking into consideration various documents in these files and the applicant’s conduct, the office established that the applicant held political and ideological views of an unlawful, subversive, separatist and fundamentalist nature. The office forwarded the file on the applicant to a committee consisting of nine high-ranking officers. The following information could be gathered from the file, which was classified as strictly confidential: “A. As regards Mr Suküt’s conduct and attitudes: A.a. Mr Suküt holds revolutionary Islamist views; A.b. He has supported the view that the nation’s law and administration should be based on sharia; A.c. He is opposed to Atatürk’s principles and revolutions and to the main achievements of the Republic, and it is impossible for him to alter these opinions; A.d. He has played an active part in movements seeking to destroy the unity and integrity of the Turkish armed forces. B. Information regarding Mr Suküt’s personality B.a. Mr Suküt has refused to take part in the armed forces’ social activities on the ground that they were immoral; he has not formed any relations with his colleagues; B.b. He forbids his wife even to look out of the window of their house or to go outside; he hits her when she attempts to breach this rule; B.c. He is in a close relationship with people who have ideological views and with people who are members of illegal organisations; B.d. He spreads propaganda on religious and reactionary topics. C. Other remarks: Mr Suküt’s two immediate superiors have noted the following observations in his confidential record as regards his professional attitude: C.a. He holds negative professional and ideological views; C.b. He holds reactionary opinions; C.c. He does not take part in social activities and meetings; C.d. In their opinion, his continuing service in the armed forces is inappropriate, on the ground that he holds fundamentalist and ideological views.” The committee gave a unanimous opinion in favour of the applicant’s compulsory early retirement. After examining the file, the applicant’s highest-ranking superior endorsed the committee’s opinion and sent the file to the head of the personnel office. As the latter considered that an examination of the applicant’s status was necessary, the file was referred to the Supreme Military Council (Yüksek Askeri Şûra). On 2 August 1999 the applicant’s compulsory early retirement on disciplinary grounds was ordered in a decision of the Supreme Military Council, pursuant to sections 50 (c) and 94 (b) of the Military Personnel Act (Law no. 926). In accordance with the Constitution, the decision was not subject to judicial review (see “Relevant domestic law” below). “All acts or decisions of the administration are subject to judicial review. Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.” Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that civil servants other than members of the armed forces cannot be subjected to disciplinary penalties unless they are granted the right to defend themselves. It further provides that disciplinary penalties other than warnings and reprimands are subject to judicial review. Provisions concerning members of the armed forces are reserved. “Discharge for breaches of discipline and immoral behaviour Irrespective of length of service, non-commissioned officers whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations on assessment of non-commissioned officers shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted to it by the Chief of Staff.” Regulation 53 (e) of the Regulations on assessment of non-commissioned officers states that the compulsory early-retirement procedure is to be applied to any non-commissioned officers whose conduct and attitude show that they have held unlawful, subversive, separatist, fundamentalist and ideological political opinions or taken an active part in the propagation of such opinions.
| 0
|
train
|
001-85615
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,008
|
KOLMAN AND OTHERS v. THE CZECH REPUBLIC
| 4
|
Inadmissible
|
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
|
Mr Jiří Kolman, Ms Dagmar Paterová, Eva Stodolová and Helena Karafiátová are four Czech nationals, born in 1940, 1936, 1933 and 1942, and living in Prague and Dolní Břežany, respectively. They were represented before the Court by Ms A. Moravcová, a lawyer practising in Prague. 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. On 16 March 1992 the applicants’ father brought an action in the Prague 4 District Court (obvodní soud) for recovery of property pursuant to the Extra-Judicial Rehabilitations Act. The restitution proceedings terminated in a decision of the Constitutional Court (Ústavní soud) of 30 April 2002 which was notified to the applicants’ representative on 13 May 2002. On 5* October 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).
| 0
|
train
|
001-76701
|
ENG
|
TUR
|
CHAMBER
| 2,006
|
CASE OF ACUN AND YUMAK 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
|
Peer Lorenzen
|
5. The applicants were born in 1944 and 1951 respectively and live in Antalya. 6. On 10 December 1997 the General Directorate of National Airports expropriated a plot of land belonging to the applicants. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicants when the expropriation took place. 7. On 30 December 1997 the applicants filed an action with the Antalya Civil Court of First-instance requesting additional compensation. On 20 April 1998 the First-instance court awarded them additional compensation plus interest at the statutory rate. 8. On 21 February 2000 the Court of Cassation quashed the judgment of the Antalya Civil Court of First-instance, finding that the amount awarded was too high. 9. On 22 December 2000 the Antalya Civil Court awarded the applicants additional compensation of 8,185,550,750 Turkish Liras (TRL) (approximately 5,100 euros (EUR)) plus interest at the statutory rate applicable at the date of the court’s decision, running from 19 December 1997, the date on which the title deed to the land had been transferred. The judgment of the court became final on 18 January 2001. 10. On 12 January 2001 the authorities paid the applicants the sum of TRL 21,896,872,000 (approximately EUR 13,700), including interest. 11. 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
|
001-5973
|
ENG
|
ESP
|
ADMISSIBILITY
| 2,000
|
JIMENEZ ALONSO ET JIMENEZ MERINO v. SPAIN
| 1
|
Inadmissible
| null |
The applicants [Mr Alejandro Jiménez Alonso and Pilar Jiménez Merino] are two Spanish nationals, born in 1948 and 1983 respectively. They live in Lamadrid (Santander Province). The first applicant is the father of the second applicant. They were represented before the Court by Mr S. Rodriguez-Monsalve Garrigón, of the Vallodolid Bar. During the school year 1996-97 the second applicant, Pilar Jiménez Merino, then aged 13-14, was in the eighth year of compulsory primary and secondary education (Enseñanza General Obligatoria) in a state school of Treceño, a village situated in a rural area of the Cantabria region. The first applicant, her father, was a teacher at the school and her personal tutor during that school year. In May 1997, towards the end of the school year, the Natural Sciences teacher held classes on human sexuality as part of the “Vital Functions” syllabus. As a teaching aid, the teacher distributed to the pupils a 42-page booklet from a publication edited in 1994 by the Department of Education of the Autonomous Government of the Canary Islands. The booklet in question comprised the following chapters: “Concept of sexuality”; “We are sexual beings”; “Body awareness and sexual development”; “Fertilisation, pregnancy and childbirth”; “Contraception and abortion”; “Sexually transmitted diseases and Aids”. Those chapters included comprehension questions and basic terminology. The first applicant, who considered that the contents of the booklet went well beyond the scope of Natural Sciences and contained actual guidelines on sexuality which were contrary to his moral and religious convictions, informed the headmaster of the school that his daughter would not be attending the sex education classes. He referred, in his capacity as parent, to his constitutional right to choose his daughter’s moral education. The second applicant did not attend the classes in question and refused to answer the questions when she sat the final examination in the subject. Consequently, she failed the examination and had to repeat the school year. The first applicant then lodged an administrative application with the Ministry of Education and Culture. In a decision of 22 July 1997, the provincial director of the Ministry rejected the application. On 12 December 1997 the applicant lodged a special appeal for protection of fundamental rights with the High Court of Justice (Administrative Division) of Cantabria. He complained, inter alia, of the lack of consultation with parents regarding the content of the sex education classes; of the clearly moral component of the course; of an infringement of his right to freedom of choice of education guaranteed by Article 27 § 3 of the Constitution; of an infringement of the principle of non-discrimination proclaimed by Article 14; and an infringement of the right to freedom of religion and thought laid down in Article 16 of the Constitution. In a judgment delivered on 23 March 1997, after a hearing in which both parties had made submissions, the Cantabria High Court of Justice dismissed the appeal. It held that the Ministry’s decision had been in conformity with the fundamental rights enshrined in the Constitution. Referring to various applicable international provisions, such as Protocol No. 1 to the European Convention on Human Rights, the UNESCO Convention of 14 December 1960 against Discrimination in Education, the 1989 Convention on the Rights of the Child and the case-law of the Constitutional Court, the court held, inter alia,: “... The right of parents to provide their children with an education in accordance with their convictions presupposes, in a pluralist society, the right to choose, that right being linked to the freedom to establish schools so that parents can choose one adapted to their beliefs and ideas. However, that does not presuppose, nor can it presuppose, the right to impose one’s personal convictions on others or to request different treatment in accordance with such convictions. ... The enunciation of respect for personal convictions, in the form of the right to freely choose a school, derives from and is based on certain legal provisions and statements of the Constitutional Court and the Supreme Court. ... Section 4 of Institutional Act 8/1985 of 3 July on the right to education states: “parents or guardians shall be entitled, in accordance with the legal provisions: (a) to provide their children ... with an education in conformity with the aims laid down in the Constitution and the present Act. (b) to choose a different school from those set up by the public authorities. (c) to provide ... their children with religious and moral education in conformity with their own convictions.” There is, accordingly, a clear legal link between the right to choose a different school from those set up by the public authorities and the right to an education in conformity with one’s own convictions. ... In conclusion, the right of parents to educate their children in accordance with their own moral, religious and ideological convictions is not an absolute right, but must be determined in relation to the rights which the Constitution guarantees to other partners in the educational community, so that it is not fair to attempt to impose a difference of treatment or positive discrimination on the basis of one’s own ideas, or to choose or predetermine, on the basis of one’s particular ideas, the contents of a school curriculum in a state establishment, since the right to a particular type of education is ensured by means of the right to establish [private] schools; the latter can offer a special curriculum, unlike the position in state schools in a pluralist State, and parents have the right to choose the type of education which they wish their children to receive.” The first applicant lodged an amparo appeal against that judgment with the Constitutional Court. He relied on Article 27 § 3 (right of parents to choose their children’s religious and moral education), 14 (principle of non-discrimination) and 24 (right to a fair trial) of the Constitution. In a decision of 11 March 1999, the Constitutional Court declared the appeal inadmissible on the ground that it was manifestly ill-founded, for the following reasons: “Article 27 of the Spanish Constitution recognises rights in favour of all those who participate in the education system, which presupposes that, in the event of dispute, a balance has to be struck between the different interests in issue. In the instant case, the trial court adequately weighed the various conflicting interests while stressing that state education was involved. In the context of that type of education, ideological neutrality has to be preserved, as the court affirmed ... . In the instant case, neutrality was preserved, with the result that the trial court’s decision was neither arbitrary nor absurd and thus cannot be reviewed in amparo proceedings. .... Nor has there been an infringement of the principle of equality laid down in Article 14 since no relevant term of comparison has been submitted in support of the appeal.” “1. Everyone has a right to education. The freedom of teaching is hereby recognised. 2. The purpose of education is the full development of the human personality in a manner consistent with the democratic principles of coexistence and fundamental rights and freedoms. 3. The public authorities shall guarantee the right of parents to provide their children with a religious and moral education in accordance with their own convictions. ... 6. Natural and legal persons shall have the right to set up teaching institutions in a manner consistent with constitutional principles. ... 9. The public authorities shall assist teaching institutions satisfying the conditions established by law. ...” “... The Constitution confers on all Spaniards a right to education. It guarantees freedom of teaching ... and of setting up schools, and the right to receive religious and moral instruction in accordance with personal convictions. It recognises the right of parents, teachers and pupils to participate in the supervision and management of publicly funded schools. ...” “The Spanish education system, established in accordance with the principles and values of the Constitution and founded on the respect of the rights and liberties recognised by the Constitution and by Law 8/1985 of 3 July on the right to education, shall be geared towards the achievement of the following aims set forth in the above-mentioned Act...” In accordance with the above-mentioned constitutional and legislative provisions, there is a wide network of State-subsidised private schools in Spain, which coexist with the state school system.
| 0
|
train
|
001-110266
|
ENG
|
ARM
|
CHAMBER
| 2,012
|
CASE OF GABRIELYAN v. ARMENIA
| 3
|
Remainder inadmissible;No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra
|
4. The applicant was born in 1938 and lives in Yerevan. 5. In February and March 2003 a presidential election was held in Armenia, during which the applicant was involved as an authorised election assistant (վստահված անձ) for the candidate representing the People’s Party of Armenia (PPA), who was the main opposition candidate in the election. Following his defeat by the incumbent President, the PPA candidate challenged the election results in the Constitutional Court, which on 16 April 2003 recommended that a referendum of confidence in the re-elected President be held in Armenia within a year. 6. As the April 2004 one-year deadline approached, the opposition stepped up its campaign to challenge the legitimacy of the re-elected President. At the end of March 2004 two main opposition groups – the Justice Alliance, consisting of nine parties, including the PPA and the National Unity Party – announced their intention to start a series of demonstrations demanding the resignation of the re-elected President. 7. The applicant alleges that from February 2003 until his arrest in April 2004 he was repeatedly harassed because of his political activity. In particular, the police frequently called him to the police station without any reasons and demanded that he stop his political activities and support for the opposition. 8. On 30 March 2004 criminal proceedings no. 62201704 were instituted under Article 301 and 318 § 2 of the Criminal Code (CC) against representatives of the Justice Alliance on account of making calls for a violent overthrow of the government and change of the Armenian constitutional order and of publicly insulting government representatives. 9. On 8 April 2004 the applicant was handing out leaflets to people at a marketplace in Yerevan, inciting them to attend a demonstration to be held in the capital on 9 April 2004. The leaflets had the following content: “Fellow countrymen It is not possible any more to continue this way. On 9 April at 4 p.m. in Freedom Square we will start our struggle which aims to establish a lawful government in Armenia. The future of our homeland depends on the participation of each of us. National Unity Party Justice Alliance” 10. The applicant was stopped by two police officers, G.D. and G.A., who demanded that he accompany them to a police station. It appears that this happened at around 1 p.m. 11. According to the applicant, they arrived at the police station at around 1.30 p.m. At the police station he was placed in a waiting room with a glass wall next to the corridor, where he spent about ten hours. During this period he noticed several people behind the glass wall pointing at him as if to identify him. He had no access to a lawyer during this period. 12. It appears that at some point the applicant was transferred to a prosecutor’s office where from 8.55 to 9.05 p.m. and from 9.30 to 10.05 p.m. two confrontations were held between him and two witnesses, M.M. and N.S., respectively, who worked at the marketplace. The relevant records stated at the outset that there had been substantial contradictions between the statements of these witnesses and the applicant, who at this stage was also involved as a witness. 13. Witness M.M. stated during the confrontation that earlier that day, at around 2 p.m., he had noticed the applicant handing out leaflets and saying something to people at the marketplace. Then the applicant had approached him and given him a leaflet, saying that “the day after it would be the end of the government and the government would be changed and that they would put an end to the government and sort them out”. 14. Witness N.S. stated that the applicant had approached him at around 1 p.m. and given him a leaflet, saying that he should “come to the demonstration where they would crush and overcome”, after which the applicant left. 15. The applicant denied having handed out any leaflets or made any such statements. 16. At 10.30 p.m. an arrest record was drawn up which noted that eye-witnesses had stated that the applicant had handed out leaflets and made calls for a violent overthrow of the government. The applicant again denied these allegations. 17. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion to have the applicant’s flat searched. This decision stated that there were sufficient grounds to believe that written calls, leaflets, plans and projects to overthrow the government and change the constitutional order violently and to insult representatives of the government publicly, as well as firearms, ammunition and other objects and documents relevant to the case, could be found in the applicant’s flat. 18. On 9 April 2004 the investigator invited a legal aid lawyer, H.I., to represent the applicant’s interests. According to the relevant record, the applicant agreed that his interests be represented by lawyer H.I. 19. On the same date from 10.30 to 11.10 a.m. the applicant’s flat was searched in the presence of two attesting witnesses but no items were found. 20. From 1.05 to 2.25 p.m. the applicant was questioned as a suspect in the presence of lawyer H.I. The applicant again denied all the allegations. 21. On 10 April 2004 the applicant was formally charged within the scope of criminal proceedings no. 62201704 under Article 301 of the CC. This decision stated: “...[the applicant], having received from [the district office] of the National Unity Party leaflets concerning the demonstration to be held on 9 April 2004 at 4 p.m. on Freedom Square with the aim of “establishing a lawful government in Armenia”, distributed these leaflets to citizens and made calls to overthrow the government and change the constitutional order violently. On 8 April 2004 at around 1 p.m. [the applicant] was caught by police officers while he was handing out the leaflets and a total of 24 leaflets were confiscated from him. Thus, [the applicant] has made calls to overthrow the government and change the constitutional order violently, namely he has committed an offence envisaged under Article 301 of the [CC].” 22. The applicant and his lawyer signed this decision which, inter alia, stated that the nature of the charge had been explained to the applicant. The applicant once again gave his consent to be represented by lawyer H.I. He was then questioned as an accused in the presence of his lawyer. The applicant submitted that the nature of the charge was clear to him but denied having distributed leaflets or made any calls at the marketplace. 23. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s motion, dated 6 April 2004, to have the applicant detained. 24. On 21 April 2004 a confrontation was held between the applicant and another witness, V.Z., who apparently also worked at the marketplace. He identified the applicant as the person who had approached him on 8 April 2004, handed him a leaflet and told him to attend a demonstration on the following day during which a struggle to change the government would begin and that the authorities were unlawful and had to be changed. The applicant again denied having distributed leaflets or made any calls and submitted that witness V.Z. had been forced by the police to make false submissions. This confrontation was held in the presence of lawyer H.I. 25. On 6 May 2004 another confrontation was held between the applicant and arresting police officer G.D. who submitted that on 8 April 2004 at around 12 noon, having noticed that the applicant was distributing leaflets at the marketplace, they had approached him and asked to have a look at the leaflets. Having read what the leaflets said, they asked the applicant to come with them to the police station for clarification. The applicant denied these allegations. This confrontation was held in the presence of lawyer H.I. 26. On 7 May 2004 another confrontation was held between the applicant and the second arresting police officer, G.A., who made submissions similar to those made by police officer G.D. The applicant submitted in reply that police officer G.A.’s statement was true and that he had not told the entire truth in his previous submissions. The applicant admitted that he had distributed the leaflets at the marketplace but denied having said anything or made any calls for a violent overthrow of the government. He submitted that he regretted his actions and requested to be released from detention. This confrontation was held in the presence of lawyer H.I. 27. On the same day the applicant was again questioned as an accused in the presence of lawyer H.I., during which he made similar submissions and pleaded partly guilty. 28. Later that day lawyer H.I. filed a motion with the General Prosecutor’s Office, seeking to have the applicant released from detention. He submitted that the applicant was known to be of good character, had a permanent place of residence, was a pensioner and would not abscond or obstruct the proceedings if freed. Furthermore, he had no criminal record, had pleaded guilty and regretted his actions. 29. It appears that on unspecified dates two other witnesses, O.V. and S.K., were also questioned in connection with the applicant’s case. Witness O.V. stated that a tall person had been distributing leaflets at the marketplace on 8 April 2004. When handing him a leaflet, he said that a struggle aimed at establishing a lawful government in Armenia would begin at the demonstration of 9 April 2004. He further incited everybody to participate in the struggle, topple the government and make a coup. Witness S.K. stated that a tall elderly person had handed him a leaflet at the marketplace on 8 April 2004 and incited him to join the struggle, eliminate the current government, topple them by force and establish a new order. 30. The applicant alleged, which the Government did not dispute, that throughout the entire investigation his lawyer had never met or spoken with him in private, while in detention, to provide legal advice. Furthermore, the lawyer even failed to satisfy his request to be provided with a copy of the Code of Criminal Procedure. 31. On an unspecified date the applicant’s case was brought before the Avan and Nor Nork District Court of Yerevan which started its examination on 31 May 2004. The applicant submitted before the District Court that he wished to be represented by lawyer H.I. 32. The examining judge noted at the outset that the witnesses had been duly notified but had failed to appear and inquired about the opinion of the parties. The prosecutor submitted that they had to be compelled to appear. The lawyer made a similar submission on the ground that it was impossible to examine the case without the witnesses. The judge agreed and adjourned the hearing until 2 June 2004. 33. At the hearing of 2 June 2004 four witnesses appeared, witnesses N.S. and M.M. and police officers G.D. and G.A.. 34. Witness N.S. admitted that he was seeing the applicant for the second time, the first time being on 8 April 2004 at the prosecutor’s office. He further submitted that about a month before he was at work at the marketplace when somebody had approached and given him a leaflet, adding that “tomorrow at 1 p.m. there would be a demonstration on Freedom Square”. The person handing out the leaflets was tall and had grey hair. He gave the leaflet and said “come at this hour, we will crush, shatter and conquer”. Witness N.S. submitted that he had understood from these statements that the demonstrators wanted to change the government. In reply to the applicant’s lawyer’s questions, witness N.S. submitted that he was not familiar with that person and he could not say for sure if it was the applicant who had given the leaflet and made the statements. He was sure though that he had seen the applicant at the prosecutor’s office. Witness N.S. explained that he had stated at the prosecutor’s office that he had not seen who was distributing the leaflets, to which they replied that it had been the applicant. In reply to the judge’s question as to why he had stated unequivocally during the investigation that it was the applicant who had distributed the leaflets and made the above statements, witness N.S. submitted that he had said so because he had been told at the prosecutor’s office that it was the applicant who was distributing leaflets in the area of the marketplace. He further submitted that he could not remember who it was, but people around him said that it was the applicant, so he said the same. 35. Witness M.M. submitted that at some point in May he was at the marketplace when the applicant, who was distributing leaflets, approached him and invited him to a demonstration in order to “turn over” the government. The applicant then left. Witness M.M. further confirmed his pre-trial statement and asked to rely on it. He also confirmed that the person distributing the leaflets, like the applicant, had grey hair and a white shirt and was tall. 36. Police officer G.D. submitted that he was on duty at the marketplace with police officer G.A. where they noticed a person who was handing out leaflets. They approached him and brought to the police station, where he was identified as the applicant. They could not hear what he was saying to the vendors. In reply to the applicant’s lawyer’s questions, police officer G.D. said that he personally did not hear any calls from the applicant. Nor did any of the vendors tell him that the applicant had made calls. 37. Police officer G.A. made similar submissions. 38. The examining judge then announced that he had received an official letter from the police stating that witness S.K. had not been found at his place of residence, that witness O.V. was absent from his place of residence and lived elsewhere, and that the court’s decision ordering the appearance of these witnesses, in its part concerning witness V.Z., had not been executed for reasons not communicated to the court. The prosecutor requested that the pre-trial statements of these witnesses be read out. The applicant and his lawyer consented, after which the statements were read out. 39. The applicant was then examined, during which he admitted that he had distributed leaflets but denied having made any calls for a violent overthrow of the government. 40. Thereafter the trial entered its final stage of pleadings. The prosecutor made a speech, followed by the applicant’s lawyer and the applicant himself. The lawyer, in particular, made the following speech: “I find that the defendant must be acquitted”. 41. On the same date the District Court found the applicant guilty as charged and imposed a one year suspended sentence, ordering at the same time the applicant’s release from detention under a written undertaking not to leave his place of residence. The District Court found, in particular, that: “On 8 April 2004 [the applicant] received leaflets from the Avan and Nor Nork district office of National Unity Party concerning a rally to be held on 9 April 2004 at 4 p.m. on Freedom Square, distributed them to persons working and involved in trade in the area of the seventh market situated in [Nork] and made public calls inciting to a violent overthrow of the government and the constitutional order. In particular, when handing out leaflets to [N.S., M.M., V.Z., O.V. and S.K.], he incited them to participate in the rally telling them ‘You must come by all means, we will crush, overcome, put an end to the government and sort them out, we will make a coup, we will violently overthrow the current government and establish a new order’” 42. In support of its findings the District Court relied on the statements of witnesses N.S., M.M., V.Z., O.V. and S.K. As regards, in particular, the statements made by witness N.S. in court, the District Court dismissed them as unreliable and admitted his statements made during the confrontation of 8 April 2004. The District Court justified this decision by the fact that the statements made by witness N.S. during the confrontation had been unequivocal. Thus, according to the entirety of the witness statements relied on by the District Court, the applicant had made the following calls while handing out the leaflets and inciting people to attend the demonstration: “we will crush and overcome” (witness N.S.), “the government will be changed and we will put an end to the government and sort them out” (witness M.M.), “a struggle will start at the demonstration aimed at changing the government and establishing a lawful one”, “the current government will be overthrown and a new one will be established”, “the current government is unlawful and has to be changed” (witness V.Z.), “the government has to be overthrown and a coup has to be made” (witness O.V.) and “the current government has to be eliminated and violently overthrown and a new order has to be established” (witness S.K.). 43. On 14 June 2004 the applicant lodged an appeal, which he apparently drafted himself. In his appeal the applicant submitted that during the investigation he had pleaded guilty only to distributing leaflets, which in any event was not an offence, but he had never made any calls for a violent overthrow of the government. He was not a member of any political party, had never participated in demonstrations or had links with the parties organising them. The applicant further complained about the fact that the statements made by witnesses N.S. and M.M. in court, which were favourable for him, had been considered unreliable, while other witnesses, being ashamed of their false statements, had failed to appear in court. He argued that the statements of those witnesses who had not been examined in court should not have served as a basis for his conviction. The applicant lastly stated that the arresting police officers had not heard him make any calls. Thus, he had been convicted on the basis of statements of two or three witnesses who had seen him for the first time at the prosecutor’s office. 44. On 29 June 2004 the proceedings commenced before the Criminal and Military Court of Appeal. The applicant submitted before the Court of Appeal that he wished to be represented by lawyer H.I. and pleaded not guilty. Lawyer H.I. also claimed that the applicant was not guilty and asked the court to acquit him. 45. At the hearing of 30 June 2004, following the applicant’s examination, the presiding judge announced that it was necessary to summon and examine witnesses O.V., V.Z. and S.K. He further stated that he had telephoned all three witnesses on the previous day. O.V.’s wife replied that about a month before he had gone to Russia for work and his whereabouts were unknown. V.Z.’s wife replied that he had gone to another region for work and that she had no further information about him. S.K.’s relatives replied that he had left Armenia for work. The Court of Appeal decided, taking into account that the attendance of the above witnesses was indispensable, that they be compelled to appear. This task was assigned to the local police department. The hearing was adjourned until 6 July 2004. 46. At the hearing of 6 July 2004 the presiding judge announced that, according to the police, the witnesses were absent from their places of residence. The police had promised to provide further information in writing. In reply to the presiding judge’s question, the parties did not object to proceeding with the hearing and requested that measures be taken to ensure the attendance of the witnesses at the next hearing. 47. At the hearing of 7 July 2004 the presiding judge informed the parties that an official letter had been received from the police informing that witnesses O.V., V.Z. and S.K. were absent from their places of residence. While reading out that letter, the presiding judge noticed that the police had visited the wrong address as far as witness V.Z. was concerned. The prosecutor then requested that their statements be read out. Lawyer H.I. submitted that the witnesses in question had made defamatory statements against the applicant during the investigation which lacked credibility and it was therefore necessary to bring them to court with the help of the police. The applicant joined his lawyer’s request and asked that the witnesses in question appear in court and also present their identity documents. The Court of Appeal decided that, since a wrong address had been indicated in the decision ordering V.Z.’s appearance in court, it was necessary to inform the police of the correct address. As regards witnesses O.V. and S.K., the former was in Russia, while the latter was out of town. This was also confirmed by the telephone calls made by the presiding judge. The Court of Appeal found that, in such circumstances, there were no reasons to doubt the veracity of the police information and announced that it would read out and examine the pre-trial statements of those witnesses. The statements would then be analysed in the deliberation room and an assessment would be made as to their credibility, since the evidence examined in court was sufficient to allow such an assessment. The Court of Appeal then proceeded to read out the statements in question. The applicant submitted that their statements did not concern him since there had been many tall, grey-haired men at the marketplace. The investigating authority had never arranged his identification by those witnesses and their statements were therefore false. 48. At the hearing of 12 July 2004 the presiding judge announced that an official letter had been received from the police, according to which witness V.Z. indeed resided at the correct address but nobody answered the door during their visit. The presiding judge announced that, not being satisfied by the information contained in the police letter, he personally called V.Z.’s home and became convinced that nobody was there because nobody answered the telephone. The prosecutor requested that the statement of witness V.Z. be read out in court, while both the applicant and his lawyer submitted that the statement of witness V.Z. lacked credibility and requested that it be disregarded. The court then proceeded to read out the statement. 49. At the same hearing the applicant filed a motion with the Court of Appeal dispensing with the services of lawyer H.I. He submitted that the lawyer had not taken any steps to defend his interests and to prove his innocence. The lawyer had never come to visit him in detention despite the requests he had made to the administration of the detention facility. Furthermore the lawyer, without his knowledge, had filed a motion on 7 May 2004 seeking his release, in which the lawyer stated that he had pleaded guilty despite the fact that he had never pleaded fully guilty, thereby acting to his detriment and assisting the prosecution in substantiating the charge against him. The applicant claimed that he had found out about this motion only during the appeal proceedings. He further claimed in his motion that he had pleaded guilty to distributing leaflets because he was not aware that such act did not constitute an offence. He realised this only following his release from detention because no copy of the Criminal Code had been provided to him by either the investigator or his lawyer while in detention, despite his numerous requests. The applicant lastly claimed that the case against him had been fabricated. He submitted that, while sitting behind a glass wall at the police station, he was shown to some people who later became witnesses and made false statements against him. Some of them he was not able to examine and only two of them appeared in court. One of those two retracted his pre-trial statement, while the second one, because of giving a false statement, was even ashamed to look him in the eyes and was only able to mumble a confirmation of his pretrial statement. 50. The applicant stated at the same time that it was his personal choice to dispense with the services of his lawyer. The Court of Appeal decided to grant the applicant’s motion and to allow him to defend himself in person. The lawyer was then asked to leave the courtroom. 51. On the same date the Criminal and Military Court of Appeal adopted its judgment upholding the applicant’s conviction. In doing so, the Court of Appeal referred to the statements of witnesses N.S., M.M., O.V. and S.K. and of police officers G.D. and G.A. As regards the statement of witness V.Z., the Court of Appeal found that it should not have formed a basis for the applicant’s conviction because that witness had failed to appear in court despite a court order. The Court of Appeal further rejected the applicant’s claim that he had only distributed leaflets but not made any calls for a violent overthrow of the government. In doing so, the Court of Appeal stated that five witnesses had testified that the applicant had made such calls. Furthermore, the police officers had arrested him while he was handing out the leaflets. In the light of the overall sufficiency of evidence, the fact that witnesses O.V. and S.K. had failed to appear in court could not put into doubt the applicant’s involvement in the act and his guilt. The criminal element in his actions lay in the making of calls inciting violent seizure of power and change of the constitutional order. Those calls were public and aimed at a big group of people. Since he made such calls at a marketplace during the daytime, they were audible to the public. The fact that they were perceived as calls inciting to a violent overthrow of the government was confirmed by the witness statements. 52. The Court of Appeal further dismissed the applicant’s complaint about lawyer H.I., stating that the applicant’s right to defence had been ensured by the investigating authority, he had chosen his position regarding the charge against him without any outside pressure and he had not previously made any complaints about the lawyer. Furthermore, the fact that the nature of the charge was clear to the applicant was evident from the records of investigative measures. He had certified this with his signature in the presence of his lawyer. 53. On 14 July 2004 the applicant lodged an appeal on points of law in which he raised arguments concerning the witnesses against him and the alleged failure of lawyer H.I. to provide effective legal assistance, similar to those raised in his complaint of 12 July 2004. He also added that the witness statements against him had been fabricated under police pressure. The witnesses in question were people trying to make a living by working at the market, so if they had refused to follow police orders they would have been immediately expelled from the market. 54. On 6 August 2004 the Court of Cassation dismissed the applicant’s appeal. In doing so, the Court of Cassation found that both witnesses M.M. and N.S. had made statements implicating the applicant. As regards the legal representation, the applicant had agreed that lawyer H.I. defend his interests and the lawyer had properly done so. 55. By a letter of 11 November 2004 the head of staff of the Armenian Bar Association informed the applicant, in reply to his complaint, that lawyer H.I. had lawfully carried out the applicant’s defence and had not done anything illegal. The motion of 7 May 2004 had been filed upon the applicant’s and his relatives’ request. 56. The relevant provisions of the CC provide: “Public calls inciting to a violent seizure of State power and violent change of the constitutional order of Armenia shall be punishable by a fine of between 300 and 500 times the minimum wage or by detention of between two and three months or by imprisonment for a period not exceeding three years.” 57. The relevant provisions of the Code of Criminal Procedure provide: “1. A suspect is the person ... who has been arrested on suspicion of having committed an offence...” “1. The suspect has the right to defence. The investigating authority shall allow the suspect to implement his right to defence by all lawful means. 2. The suspect, in accordance with a procedure prescribed by this Code, has the right ... to have a defence counsel or to dispense with a defence counsel and defend himself in person from the moment when he is presented with the investigating authority’s decision on arrest, the record of arrest or the decision on choosing a preventive measure...” “3. A witness is obliged ... to appear upon the summons of the authority dealing with the case in order to give testimonies or to participate in investigative and other procedural measures... 4. The failure of a witness to comply with his obligations shall lead to sanctions prescribed by law.” “1. [A] witness ... may be compelled to appear by a reasoned decision of ... the court if he fails to appear upon summons without valid reasons. [A] witness ... is obliged to inform the summoning authority if there are valid reasons preventing his appearance within the time-limit fixed in the summons.” “1. The investigator is entitled to carry out a confrontation of two persons who have been questioned previously and whose statements contain substantial contradictions. The investigator is obliged to carry out a confrontation if there are substantial contradictions between the statements of the accused and some other person. ... 5. In cases envisaged by this Code, a defence counsel, an interpreter and the lawful representative of the person being questioned can participate in the confrontation and shall also sign the record.” “1. If any of the witnesses ... “1. Reading out at the trial of witness statements made during the inquiry, the investigation or a previous court hearing ... is permissible if the witness is absent from the court hearing for reasons which rule out the possibility of his appearance in court, if there is substantial contradiction between those statements and the statements made by that witness in court, and in other cases prescribed by this Code.” “1. Only final acts are subject to review on the ground of newly discovered or new circumstances. 2. On the ground of newly discovered or new circumstances a judicial act of the court of first instance shall be review by the appeal court, while the judicial acts of the appeal court and the Court of Cassation shall be reviewed by the Court of Cassation.” “1. Judicial acts may be reviewed on the ground of new circumstances [if] ... a violation of a right guaranteed by an international convention to which Armenia is a party has been found by a final judgment or decision of an international court...”
| 1
|
train
|
001-61094
|
ENG
|
ITA
|
CHAMBER
| 2,003
|
CASE OF VOGLINO v. ITALY
| 4
|
Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
7. The applicant lives in Grottaferrata (Rome). 8. She is the owner of a flat in Rome, which she had let to B.F.R. 9. In a writ served on the tenant on 4 February 1991, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1991 and summoned her to appear before the Rome Magistrate. 10. By a decision of 29 May 1991, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 July 1992. 11. On 7 October 1992, 20 September 1995 and 10 February 2000, the applicant served notice on the tenant requiring her to vacate the premises. 12. On 7 December 1992, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 15 December 1992. 13. Between 15 December 1992 and 25 February 1993, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 14. On 13 October 1995, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 October 1995. Between 31 October 1995 and 6 November 1996, the bailiff made six attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession. 15. On 28 February 2000, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 24 March 2000. 16. Between 24 March 2000 and 13 July 2000, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as, the applicant was not entitled to police assistance in enforcing the order for possession. 17. On 24 July 2000, the applicant recovered possession of the flat. 18. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
| 1
|
train
|
001-76187
|
ENG
|
TUR
|
CHAMBER
| 2,006
|
CASE OF UYANIK v. TURKEY
| 4
|
Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
| null |
4. The applicant was born in 1937 and lives in Ankara. 5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place. 6. Following the applicant’s request, on 21 December 1993 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable. 7. On 20 June 1994 the Court of Cassation upheld that judgment. 8. On 4 February 1998 the amount of 3,600,000,000 Turkish liras (TRL) was paid to the applicant. 9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV, §§ 13-16).
| 0
|
train
|
001-4512
|
ENG
|
NLD
|
ADMISSIBILITY
| 1,999
|
DRIEMOND BOUW BV v. THE NETHERLANDS
| 3
|
Inadmissible
|
Elisabeth Palm
|
The applicant is a Dutch construction company with limited liability having its registered seat in Amsterdam. In the proceedings it is represented by Mr M.W.C. Feteris, a lawyer practising in Amsterdam. The facts of the case, as submitted by the parties, may be summarised as follows. a. Particular circumstance of the present case In 1988 and 1989, the applicant company hired employees for work in the Netherlands from Schmitz Betonstahlbetrieb GmbH (hereinafter referred to as "Schmitz GmbH"), a company with limited liability having its registered seat in Germany. For the latter company's employees hired by third companies, the German Local Sickness Fund (Allgemeine Ortskrankenkasse) issued secondment certificates (detacherings-verklaringen), so-called E-101 certificates. In accordance with the relevant statutory rules, the Dutch New General Occupational Association (Nieuwe Algemene Bedrijfsvereniging; "NAB") enlisted Schmitz GmbH as a member and decided that the latter had to pay Dutch social security contributions for these employees. As Schmitz GmbH failed to provide the NAB with the necessary information on wages paid, the NAB determined the relevant social security contributions ex officio. Schmitz GmbH was declared bankrupt in March 1989. In its decision of 23 December 1992, the NAB held the applicant company severally liable (hoofdelijk aansprakelijk) for the payment of the social security contributions under the Unemployment Insurance Act (Werkloosheidswet; "WW"), the Sickness Benefits Act (Ziektewet; "ZW"), the Health Insurance Act (Ziekenfondswet; "ZFW") and the Labour Disability Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering; "WAO") for the employees hired by the applicant company from Schmitz GmbH. These contributions amounted in total to 29,595 Dutch guilders. In this decision it was stated that the applicant company would have been exempted from this liability if it would have reported, in accordance with the procedure stated in the decision Nr. 73943 of 21 July 1960 of the Social Security Council (Sociale Verzekeringsraad), that it was availing itself of the services of seconded employees and, in addition, if this secondment had taken place under a permit referred to in Article 2 para. 1a of Act on Secondment of Workers (Wet op het ter beschikking stellen van arbeidskrachten) issued to the seconding employer. It was found that the applicant company had not complied with either condition. The applicant company filed an appeal with the Regional Court (Arrondissementsrechtbank) of Amsterdam. In the course of a hearing held on 8 December 1992 before the Regional Court, the applicant company submitted not to have found any social security contribution demands (premienota's) and, expressing doubts on the actual existence of such demands, raised the question whether under these circumstances it could be held liable for payment of these social security contributions. The NAB replied that the demands existed. On 31 December 1993, the Regional Court rejected the applicant company's appeal as ill-founded. The Regional Court noted that no payment had been received on the social security contribution demands for the years 1987, 1988 and 1989 which the NAB had addressed to Schmitz GmbH. As to the question whether the applicant company could be held liable for the payment of these contributions, the Regional Court held that the applicant company had failed to report that it was availing itself of seconded employees and that no permit had been issued to Schmitz GmbH. Rejecting all arguments advanced by the applicant company in this respect, the Regional Court found that the facts at issue did not constitute a situation of international secondment as referred to in the EEC Ordinances 1408/71 and 574/72. It noted that the employees at issue were all Dutch nationals and were all residing and working in the Netherlands at the relevant time. It further noted that Schmitz GmbH had recruited these employees, who until that moment had been insured under the Dutch social security system, in the Netherlands where they had also been assigned to work. Having reached this finding, the Regional Court concluded that the Dutch social security legislation was applicable to the employees hired by the applicant company and that, as Schmitz GmbH had failed to pay the contributions due, the applicant company could be held liable, pursuant to Article 16a of the Social Security Co-ordination Act, for payment of the social security contributions over the years 1988 and 1989 in respect of the employees it had hired from Schmitz GmbH. The applicant company filed an appeal with the Central Appeals Tribunal (Centrale Raad van Beroep). In its written appeal it stated, inter alia, that it did not appear from the case-file that social security contribution demands had been issued to Schmitz GmbH. The applicant company argued that, as long as statutory social security contributions debts had not been formalised in a social security contribution demand, there could be no formally claimable contribution debt. It further doubted that any steps aimed at collecting this debt had been taken against Schmitz GmbH and submitted that, in these circumstances, it was inappropriate that it should be held liable for this debt. In its written reply of 28 March 1995 to the applicant company's appeal, the NAB stated that social security contribution demands had been issued and, although it had not yet been possible to submit copies of these demands, that it would submit copies of these demands as soon as possible. As to the lack of any debt recovery steps, the NAB submitted that Schmitz GmbH had gone bankrupt in 1989 and that it was thus impossible to collect this debt. In the course of a hearing held on 18 September 1995 before the Central Appeals Tribunal, the applicant company also argued that the letters of 18 June 1987 and 24 October 1988 from the Foundation Social Fund Construction Industry (Stichting Sociaal Fonds Bouwnijverheid; "SFB") to Schmitz GmbH had created a legitimate expectation that no Dutch social security contributions would be imposed. It further submitted that, since it still had not received any social security contribution demands addressed to Schmitz GmbH, no contributions had been imposed and thus no contributions were due. The NAB replied that it could not bear any responsibility for acts of another administrative organ which may have led to certain expectations and, as regards the submission of the demands, responded that this had still not been done but that it would be able to submit these demands at the hearing. In reply to this offer by the NAB to submit the demands, the President of the Central Appeals Tribunal, referring to Article 7:4 of the General Administrative Law Act (Algemene Wet Bestuursrecht), stated that additional documents were to be submitted up to 10 days before the date of the hearing. When the applicant company submitted that the NAB, in its written submissions of 28 March 1995, had only stated that the demands would be submitted as soon as possible but that so far nothing had in fact been submitted, the President of the Central Appeals Tribunal stated that it appeared indisputably from the administrative records that social security contributions demands had been issued ("uit de administratie onomstotelijk blijkt dat er premienota's zijn opgelegd"). The applicant company's representative responded not to have seen these demands. In its decision of 30 October 1995, the Central Appeal Tribunal rejected the applicant company's appeal and upheld the judgment of 31 December 1993. It held, inter alia, that it agreed with the Regional Court's finding that the employees at issue fell under the Netherlands social security scheme and that the situation at issue did not concern secondment of employees recruited in Germany. It noted on this point that the applicant company did no longer contest this finding. The Central Appeals Tribunal further agreed with the Regional Court that the letters of 18 June 1987 and 24 October 1988 from the SFB could not be regarded as constituting a violation of the principle of justified expectations (vertrouwensbeginsel) to such an extent that the applicant company's liability could not be maintained. It noted that these letters came from the SFB and not from the NAB and held that, given the manner in which the clauses contained in these letters were formulated, the applicant company could not have attached a decisive importance to them. The Central Appeals Tribunal did not deal with the issues raised by the applicant company in respect of the social security contribution demands. b. Relevant domestic law and practice Under Article 11 of the Netherlands Social Security Co-ordination Act (Coördinatiewet Sociale Verzekeringen), social security contributions due by employers are determined by the occupational association to which the employer belongs. According to paragraph 5 of this provision, the occupational association must inform the employer in writing of the amount due and the delay for payment. According to Article 13 para. 1 of the Social Security Co-ordination Act, social security contributions will no longer be determined after a period of five years has elapsed since the end of the calendar year for which such contributions are in principle due. Paragraph 2 of this provision states that payment of social security contributions, which have not been collected within ten years after their determination, can no longer be claimed. Pursuant to Article 16a of the Social Security Co-ordination Act, a legal person hiring employees of a third party may in certain circumstances be liable to pay the social security contributions, in principle due by the third party employer, for such employees. One such circumstance is the failure of the third party to pay these contributions. In a decision of 28 December 1994, the Central Appeals Tribunal held that a third party cannot be held liable for payment of social security contributions if the initial demand had not issued to the correct debtor. In that case it was held that the real debtor was a company with limited liability whereas the demand stated this company's director/shareholder in his personal capacity as debtor (CRvB, 28 december 1994, Rechtspraak Sociaal Verzekeringsrecht 1995, Nr. 171). Under Article 8:42 of the General Administrative Law Act (Algemene Wet Bestuursrecht) the administrative organ against whose decision an administrative appeal has been lodged shall transmit to the court dealing with the appeal the documents relating to the case ("de op de zaak betrekking hebbende stukken") within a set time-limit. Pursuant to Article 8:45 of the General Administrative Law Act, an administrative court can further request the parties and others to submit documents within a fixed time-limit. Under paragraph 2 of this provision, administrative organs, even if they are no party to the proceedings concerned, are obliged to comply with such a request. Pursuant to Article 8:28 of the General Administrative Law Act, parties are obliged to comply with a request of an administrative court to submit documents. Under Article 8:69 para. 1 of the General Administrative Law Act, an administrative court shall give judgment on the basis of the notice of appeal, the documents submitted, the preliminary examination and the hearing before the court. Under the second and third paragraphs of this provision an administrative court may ex officio complete the legal grounds and the facts. Under Article 8:77 of the General Administrative Law Act a written decision of an administrative judicial body shall include the grounds on which it is based.
| 0
|
train
|
001-76694
|
ENG
|
BGR
|
CHAMBER
| 2,006
|
CASE OF BABICHKIN v. BULGARIA
| 4
|
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Peer Lorenzen
|
6. The applicant was born in 1939 and lives in Asenovgrad. 7. On 29 May 1991 he entered into an employment agreement with a local company (the “company”) whereby he undertook to work for it abroad. Several months later, while working for the company in Germany, the applicant fell seriously ill, underwent an operation and was on sick leave for about two months. At the end of his sick leave on 18 October 1991, the applicant found that his employment agreement had been unilaterally terminated by the company. He returned to Bulgaria soon thereafter. 8. On 19 May 1992 the applicant initiated an action against the company. He sought damages in the amount of 13,170 German marks (DEM), or their equivalent of 184,389 Bulgarian levs (BGL), on account of the company’s failure to pay out sick leave entitlements, back pay for overtime work and a payment for an insurance policy. 9. The Plovdiv Regional Court conducted ten hearings between 2 September 1992 and 23 January 1995, scheduled two to five months apart. During this time it obtained two experts’ reports and questioned witnesses. Of the hearings conducted, one was adjourned from 5 March to 5 May 1993 due to the absence of the applicant, another was postponed from 12 May to 14 September 1994 at the request of the defendant and a third, was adjourned from 14 September to 28 November 1994 because the defendant was hindering an expert from completing his report. 10. In a judgment of 2 March 1995 the Plovdiv Regional Court found partly in favour of the applicant. It awarded him BGL 1,032 for sick leave entitlements and dismissed the remainder of his claims. On 22 March 1995 the applicant appealed against the judgment. 11. A hearing was held before the Supreme Court on 28 February 1996. 12. In a judgment of 16 July 1996 the Supreme Court declared the judgment of the Plovdiv Regional Court null and void and remitted the case to the lower court. It established that the lower court had been sitting in an unlawful composition of three judges rather than of one judge and two jurors. 13. At the retrial, the Plovdiv Regional Court conducted nine hearings between 28 October 1996 and 12 June 1998, scheduled one to four months apart. During this time it obtained an expert’s report and questioned witnesses. Of the hearings conducted, one was adjourned from 29 April to 2 May 1997 because the applicant could not be summoned at his address. In addition, between 3 September 1997 and 16 April 1998 three consecutive hearings were postponed because the applicant or his lawyer were ill and at the request of the defendant in order to acquaint himself with the expert’s report. 14. In a judgment of 22 December 1998 the Plovdiv Regional Court again found partly in favour of the applicant. It awarded him BGL 24,100 for sick leave entitlements and dismissed the remainder of his claims. On 25 February 1999 the applicant appealed against the judgment. 15. The Plovdiv Court of Appeals conducted four hearings between 10 September 1999 and 17 April 2000, scheduled one to four months apart. One of the hearings was adjourned from 10 September to 19 November 1999 because the applicant was ill. 16. In a judgment of 3 July 2000 the Plovdiv Court of Appeals quashed part of the judgment of the lower court in respect of the amount awarded to the applicant for sick leave entitlements in Bulgarian levs and rendered a judgment in the case whereby it re-calculated the award in German marks, specifying it to be DEM 1,679 plus interest as from 22 May 1992. It upheld the remainder of the judgment of the Plovdiv Regional Court in respect of the dismissal of the applicant’s other claims. On 13 September 2000 the applicant appealed against the judgment. 17. A hearing was held before the Supreme Court of Cassation on 5 June 2001. 18. In a judgment of 10 August 2001 the Supreme Court of Cassation quashed part of the judgment of 3 July 2000 of the Plovdiv Court of Appeals, in which the latter had upheld the dismissal of the applicant’s claims for back pay and overtime work, and remitted that part of the case to the lower court. It upheld the remainder of the judgment of the Plovdiv Court of Appeals in respect of the amounts awarded for sick leave entitlements. 19. The Plovdiv Court of Appeals conducted three hearings between 24 October 2001 and 23 January 2002, scheduled one to two months apart, during which time an expert’s opinion was obtained. 20. In a judgment of 22 February 2002 the Plovdiv Court of Appeals quashed the remaining part of the judgment of 22 December 1998 of the Plovdiv Regional Court and rendered a judgment in the case in which it ordered the company to pay the applicant DEM 2,220 for back pay and overtime work plus interest as from 22 May 1992. 21. On 25 March 2002 the applicant obtained a writ of execution against the company for the amounts awarded. It is unclear whether and if the applicant obtained execution of the same. 22. On 3 April 2002 the company appealed against the judgment of the Plovdiv Court of Appeals. 23. A hearing was held before the Supreme Court of Cassation on 25 February 2004. 24. In a final judgment of 5 March 2004 the Supreme Court of Cassation upheld the judgment of 22 February 2002 of the Plovdiv Court of Appeals.
| 1
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train
|
001-100198
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ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF KARIMOV v. RUSSIA
| 4
|
Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 13+3
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
6. The applicant was born in 1964 and lives in Yoshkar-Ola, the Republic of Mari-Al. 7. 8. The applicant was born and used to live in Ayim, Uzbekistan. From 1997 to 2005 he owned a small grocery shop there. 9. On 13 May 2005 the applicant went to the town of Andijan to pick up merchandise from a wholesale market. On that date a demonstration was taking place in the town's Bobur square; the applicant decided to join the event. At some point the local authorities opened fire on the demonstrators. The applicant managed to escape, but lost his passport in the crowd. Fearing prosecution by the authorities for participation in the Andijan demonstration, he left the country. 10. On 18 June 2005 the Prosecutor General's Office of Uzbekistan charged the applicant in absentia with a number of crimes including commission of terrorist acts, membership of a number of extremist organisations including Hizb-ut-Tahrir, attempts to overthrow the State's constitutional order and organisation of mass disorder. The applicant's name was put on the wanted list. The prosecutor's office issued an arrest warrant against the applicant. 11. On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition to Uzbekistan to the Prosecutor General's Office of the Russian Federation. 12. On 2 August 2008 the Andijan regional prosecutor's office additionally charged the applicant with a number of crimes including conducting a holy war to create an Islamic state, financing terrorist activities, membership of extremist organisations and organisation of mass disturbances. 13. On an unspecified date in June 2005 the applicant arrived in Yoshkar-Ola, the Republic of Mari-Al, Russia. From June 2005 to 11 June 2008 he lived with his brother, Mr Kh.K., and worked in the construction business. 14. On an unspecified date in 2007 the applicant obtained a false passport of a Kirgiz national. 15. On 19 June 2008 the Tsentralniy Department of the Interior of Yoshkar-Ola (“the Tsentralniy UVD”) instituted criminal proceedings against the applicant under Article 327 of the Criminal Code (forgery of documents). 16. On 30 December 2008 the Yoshkar-Ola Town Court (“the Town Court”) found the applicant guilty of forging documents and ordered him to pay a fine of 10,000 Russian roubles (RUB). The applicant did not appeal against the sentence. 17. On 11 June 2008 the applicant was arrested in Russia (see paragraph 31 below). On the same date and on 19 June 2008 he was questioned and stated that he was being subjected by the Uzbek authorities to politically motivated persecution in connection with events in Andijan in May 2005. He denied any involvement in illegal activities. 18. On 2 July 2008 the applicant was questioned again. He reiterated that he was being sought by the Uzbek authorities for alleged participation in the Andijan events in May 2005 and denied any involvement in extremist organisations. 19. On 5 July 2008 the Prosecutor General's Office of Uzbekistan forwarded a request for the applicant's extradition (see paragraph 11 above). 20. On 17 July 2008 the Federal Migration Service (“the FMS”) informed the Prosecutor General's Office that the applicant did not have Russian citizenship. 21. On 6 August 2008 the Mari-Al FMS informed the Mari-Al prosecutor's office that on 1 August 2008 the applicant's request for asylum had been rejected. 22. On 4 August 2008 the Russian Ministry of Foreign Affairs informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition. The text of the document comprised three lines and stated: “The Russian Ministry of Foreign Affairs has no information precluding Mr A. Karimov's extradition to the law-enforcement bodies of Uzbekistan for criminal prosecution.” 23. On 30 August 2008 the Federal Security Service (“the FSB”) informed the Prosecutor General's Office that they did not have any information precluding the applicant's extradition to Uzbekistan. The text of the document stated: “The FSB has no information concerning either the politically motivated persecution of Mr A. Karimov (who was born in 1964 in Uzbekistan) or any obstacles precluding his extradition to the law-enforcement bodies of Uzbekistan. His extradition to the Uzbek authorities would not damage the interests or security of the Russian Federation.” 24. On 18 September 2008 the Russian Prosecutor General's Office ordered the applicant's extradition to Uzbekistan. 25. On 25 September 2008 the applicant was informed of the extradition order. He appealed against it to the Supreme Court of Mari-Al. Referring to the case-law of the European Court of Human Rights, the applicant stated that he was being sought by the Uzbek authorities for the alleged commission of political crimes and that his extradition would expose him to a real risk of ill-treatment by the local authorities. He further stated that the Russian Office of the UN High Commissioner for Refugees had recognised the need for his international protection and requested that the extradition decision be overruled as unlawful. 26. On 31 October 2008 the Supreme Court of Mari-Al rejected the applicant's appeal and upheld the extradition order stating, inter alia, the following: “....the law-enforcement bodies of the Republic of Uzbekistan charged A. Karimov with criminal conspiracy ... with the aim of undermining State security, destabilising the social and political order ... These actions on the part of A. Karimov are classified [by the Uzbek authorities] as the use of violence and force jeopardising the safety of persons and property with the aim of forcing State bodies to take or not to take certain actions ... that is, as the crime punishable under Article 155 § 3 (a) of the Uzbek Criminal Code... ...The factual circumstances and legal assessment of the actions of which A. Karimov is accused are described in the statements of charges of 18 June 2005 and 2 August 2008... ...the [applicant's] allegations about the risk of ill-treatment in Uzbekistan were not confirmed by the documents examined during the hearing... ...the Republic of Uzbekistan guaranteed that the applicant would not be extradited to a third country without the consent of the Russian Federation ... [and] that after the trial and the completion of his sentence he would be free to leave Uzbekistan.” 27. On 7 November 2008 the applicant appealed against the above decision and the extradition order to the Supreme Court of the Russian Federation (“the Supreme Court”). He stated that the proceedings concerning his request for refugee status in Russia were still pending and that his extradition would expose him to a real risk of ill-treatment by the Uzbek authorities. 28. On 13 November 2008 the European Court of Human Rights granted the applicant's request for the application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan. 29. On 23 December 2008 the Supreme Court rejected the applicant's appeal and made the extradition order final. The court stated that the applicant had applied for refugee status in Russia only after his arrest on 11 June 2008, that his allegations of a risk of ill-treatment were unsubstantiated and that “...the Uzbek Prosecutor General's Office guaranteed that ... it would prosecute A.M. Karimov only for the crimes he had been charged with...”. 30. On 22 September 2009 the applicant requested the Prosecutor General's Office to cancel the extradition order of 18 September 2008 as he had been granted temporary asylum in Russia (see paragraph 57 below). He did not receive any response from the authorities. 31. On 11 June 2008 the applicant was arrested in Yoshkar-Ola and placed in the local detention centre IZ-12/1 (“the detention centre”). 32. On 12 June 2008 the Town Court ordered the applicant's detention until 12 July 2008, stating that: “...the deputy head of the Department of the Interior of the Andijan Region of Uzbekistan .... requested that A.M. Karimov be arrested ... and that the request for his extradition be submitted [to the Russian authorities] within one month”. On 17 June 2008 the applicant appealed against this decision to the MariAl Supreme Court. On 2 July 2008 the latter upheld the extension order. 33. On 4 July 2008 the Town Court extended the applicant's detention until 21 July 2008. On 7 July 2008 the applicant appealed against this decision to the Mari-Al Supreme Court. On 1 August 2008 the latter upheld the extension order. 34. On 22 July 2008 counsel for the applicant requested the head of the detention centre to release the applicant as the term of his detention had expired on 21 July 2008 and his detention after that date was unlawful. 35. On the same date the head of the detention centre replied to counsel, stating the following: “...the law-enforcement bodies of the Russian Federation received a request from the Prosecutor General's Office of Uzbekistan concerning A.M. Karimov's extradition... In connection with this [the applicant's] detention is lawful and substantiated”. 36. On the same date, 22 July 2008, counsel for the applicant appealed against the reply of the head of the detention centre to the Yoshkar-Ola Town Court, under Article 125 of the Code of Criminal Procedure (complaints against acts and decisions of officials involved in criminal proceedings). He stated that the applicant's detention had been authorised only until 21 July 2008 and that his detention after that date was unlawful. On 25 July 2008 the Town Court examined this complaint and set it aside without examination, stating that the applicant had failed to accurately define his request and to provide copies of the relevant court extension orders. The decision stated that the applicant should correct the above deficiencies and resubmit his complaint by 30 July 2008. The applicant appealed against this decision to the Mari-Al Supreme Court, which on 4 August 2008 returned his appeal without examination for failure to comply with the requirements specified in the decision of 25 July 2008. 37. Meanwhile, on 24 July 2008 the Town Court, at the request of the Yoshkar-Ola prosecutor, extended the applicant's detention until 12 December 2008. As to the applicant's allegation concerning the unlawfulness of his detention between 21 and 24 July 2008, the court stated: “... Taking into account the fact that the Yoshkar-Ola prosecutor had already requested the court to detain the applicant pending his extradition, and that this request had been granted ... the present prosecutor's request for extension of the applicant's detention should cover the applicant's detention between 12 June and 24 July 2008...” On 28 July 2008 the applicant appealed against this extension order to the Mari-Al Supreme Court. On 14 August 2008 the latter upheld the extension of the applicant's detention; it left without examination the issue of the lawfulness of his detention between 21 and 24 July 2008. 38. On 5 December 2008 the Town Court, at the request of the Yoshkar Ola prosecutor, extended the applicant's detention pending extradition until 12 March 2009. On the same date the applicant appealed against this decision to the Mari-Al Supreme Court. On 19 December 2008 the latter upheld the extension order. 39. On 11 March 2009 the Town Court, at the request of the YoshkarOla prosecutor, extended the applicant's detention until 11 June 2009. On 13 March 2009 the applicant appealed against this decision to the Mari-Al Supreme Court. On 26 March 2009 the latter upheld the extension order. 40. On 22 May 2009 the Town Court rejected the request of the Yoshkar-Ola prosecutor and refused to extend the applicant's detention until 11 December 2009 (up to 18 months). The prosecutor's office appealed against the refusal to the Supreme Court. On 23 June 2009 the Supreme Court upheld the refusal to extend the applicant's detention. 41. On 11 June 2009 the applicant was released from the detention centre. 42. On 23 June 2008 the applicant lodged a preliminary request for refugee status in Russia. On 7 July 2008 he lodged the full application. 43. On 1 August 2008 the Mari-Al FMS refused to examine the applicant's request. The decision referred to Article 5 § 1 (1) of the Federal Law on refugees, which stated that one of the reasons for refusing to examine an application for refugee status was the opening of criminal proceedings against the person applying for refugee status. 44. On 24 September 2008 the Russian Office of the UN High Commissioner for Refugees informed the Mari-Al FMS that “the refusal to provide access to the refugee status procedure to A. Karimov violates Article 14 of the UN Declaration of Human Rights of 1948...”. 45. On 1 October 2008 the applicant appealed against the refusal to the Town Court. He stated that he had left Uzbekistan out of fear of illtreatment by the local authorities for alleged participation in the demonstration in Andijan in May 2005 and that he was being sought by the Uzbek authorities for political crimes. The applicant requested the court to overrule the refusal and order the FMS to examine his request. 46. On 2 October 2008 the Russian Office of the UN High Commissioner for Refugees wrote to the Russian Prosecutor General stating that the Prosecutor General's decision to extradite the applicant to Uzbekistan had been taken without proper examination of his request for refugee status in Russia. 47. On 3 October 2008 the Russian Office of the UN High Commissioner for Refugees wrote to the Head of the Russian FMS. The letter stated that the information provided by the applicant about events in Uzbekistan had been confirmed as truthful and that his fear of ill-treatment by the Uzbek authorities was justified and substantiated. The letter requested the Russian authorities to take into consideration the High Commissioner's opinion concerning the applicant's case during the examination of his request for refugee status in Russia. 48. On 9 October 2008 the court granted the applicant's appeal and ordered that the Mari-Al FMS examine the applicant's request for refugee status. 49. On 22 October 2008 the Mari-Al FMS decided to examine the applicant's request. 50. On the same date, 22 October 2008, the Russian Office of the UN High Commissioner for Refugees wrote to the Supreme Court of MariAl. The letter stated that the applicant “...falls under the definition of refugee as provided by the Geneva Convention...” and that he faced a real risk of illtreatment in Uzbekistan if extradited. The letter stated that the applicant's extradition would violate the obligations of the Russian authorities under the Convention Relating to the Status of Refugees. 51. On 14 November 2008 the Prosecutor General's Office informed the applicant that his extradition to Uzbekistan had been suspended pending completion of the examination of his request for refugee status. 52. On 16 January 2009 the Russian Office of the UN High Commissioner for Refugees informed the applicant's representative that the application of Rule 39 by the European Court of Human Rights should not be terminated as it was the only safeguard protecting the applicant from extradition to Uzbekistan. 53. On 22 January 2009 the Mari-Al FMS rejected the applicant's request for refugee status in Russia. The applicant appealed against this decision to the Town Court. On 5 March 2009 the court upheld the refusal. The applicant appealed against the court's decision to the Mari-Al Supreme Court. On 16 April 2009 the latter examined the appeal and forwarded the case for fresh examination to the Town Court. 54. On 27 April 2009 the Russian Office of the UN High Commissioner for Refugees wrote to the Town Court confirming that the applicant's fear of politically motivated persecution and ill-treatment in Uzbekistan was justified and substantiated. 55. On 15 May 2009 the Town Court rejected the applicant's appeal and upheld the refusal to grant him refugee status. On 18 June 2009 the refusal was made final by the Mari-Al Supreme Court. 56. On 16 June 2009 the applicant lodged a temporary asylum request with the FMS stating that he feared politically motivated persecution and illtreatment in Uzbekistan. 57. On 31 August 2009 the FMS allowed the applicant's request and granted him temporary asylum for one year. 58. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 59. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 60. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 61. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent. A person may also be arrested in the absence of such request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 62. A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 63. Chapter 13 of the Russian Code of Criminal Procedure (“Preventive measures”) governs the use of preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period to six months (Article 109 § 2). Further extensions to twelve months, or in exceptional circumstances, eighteen months, may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 64. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The court must examine the complaint within five days from its receipt. 65. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)). 66. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 67. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article 258 § 1). 68. On 15 July 2003 the Constitutional Court issued decision no. 292-O concerning a complaint by Mr Khudoyorov about the ex post facto extension of his “detention during trial” by the Vladimir Regional Court's decision. It held as follows: “Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... upon the expiry of six months after the case was sent to it, extend the defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending the defendant's detention on remand once the previously authorised time-limit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution...” 69. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 70. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms laid down in Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without abiding by the procedure established in the CCP, or in excess of the time-limits fixed therein. 71. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition. 72. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction. 73. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 74. Article 33 of the 1951 UN Convention Relating to the Status of Refugees, which was ratified by Russia on 2 February 1993, provides as follows: “1. No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” 75. The Refugees Act (Law no. 4258-I of 19 February 1993) incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol Relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1 § 1 (1)). 76. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2 § 1 (1) and (2)). 77. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10 § 1). 78. If a person satisfies the criteria established in section 1 § 1 (1), or if he does not satisfy such criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12 § 2). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4). 79. UN General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148)) reads as follows: “The General Assembly... 12. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement...” 80. In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: “51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return. 52. The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.” 81. Specifically referring to the situation regarding torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 82. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials... 743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002...” 83. The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows: 22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling '...the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.' 24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and non-derogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that: 'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'” 84. United States Department of State, 2009 Country Reports on Human Rights Practices – Uzbekistan, 11 March 2010. “Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Prisoners were subjected to extreme temperatures. Observers reported several cases of medical abuse, and one known person remained in forced psychiatric treatment. ... Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities. There were reports of politically motivated medical abuse. Victims could request through legal counsel that their cases be reviewed by an expert medical board. In practice, however, such bodies generally supported the decisions of law enforcement authorities. ... Prison and Detention Center Conditions Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Family members frequently reported that officials stole food and medicine that were intended for prisoners. There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.” 85. The European Committee for the Prevention of Torture (“the CPT”), in its 15th General Report of 22 September 2005 on its activities covering the period from 1 August 2004 to 31 July 2005, expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture: “38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. 39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 40. In response, it has been argued that mechanisms can be devised for the postreturn monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.”
| 1
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train
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001-103936
|
ENG
|
HUN
|
COMMITTEE
| 2,011
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CASE OF GAVRIS v. HUNGARY
| 4
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Violation of Art. 6-1
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András Sajó;Ireneu Cabral Barreto
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4. The applicants were born in 1935 and 1939 respectively and live in Szolnok. 5. In 1993 administrative proceedings started concerning the grant of a building permit to the applicants' neighbours. In pursuit of the applicants' administrative appeals and their ensuing request for judicial review dated 14 October 1993, on 14 November 1994 the Kaposvár District Court quashed the existing decisions and remitted the case to the second-instance administrative authority. It held that the building permit issued had approved some irregular plans. On 13 July 1995 the Somogy County Regional Court upheld this judgment. 6. In the resumed administrative proceedings, on 10 October 1995 the Somogy County Administrative Office remitted the case to the Balatonszárszó Notary. It appears that, by this time, the neighbours had already constructed the building in question. In March 1996 the Notary approved the continued existence of the building. On 13 June 1996 the County Administrative Office dismissed the applicants' appeal in which they had requested the removal of part of the building, constructed irregularly in their view. 7. On 2 April 1997 the Kaposvár District Court quashed these decisions and again remitted the case to the administrative instances. It held that the permit allowing the continued existence of the building had been adopted in defiance of the relevant administrative law because the interests of the other neighbours (including the applicants) had not been taken into account. On 28 August 1997 the Regional Court upheld the judgment. However, this decision was quashed in review proceedings by the Supreme Court on 20 March 2000. The Supreme Court remitted the case to the first-instance court. 8. Due to a change in the law, in the resumed judicial review proceedings the Regional Court heard the case as a first-instance court. On 27 February 2001 it ordered the administrative instances to resume the proceedings, because their previous decisions had approved some irregular plans. On 9 December 2002 the Supreme Court, sitting as a second-instance court, upheld this decision. 9. In the resumed administrative proceedings, on 17 December 2003 the Balatonföldvár Notary granted the neighbours a permit for the continued existence of the building in question. On 24 May 2004 the Fejér County Administrative Office dismissed the applicants' appeal in which they had alleged that the building had been constructed in defiance of the regulations and that its continued existence infringed their rights as neighbours. 10. In judicial review proceedings, on 30 November 2004 the Regional Court dismissed the applicants' action. The court pointed out that, under section 48 of Act no. 78 of 1997 on Construction, the authority in charge of construction may take measures in respect of an irregularly constructed building within one year from its taking cognisance of the irregularity but in any event not later than ten years from the certification of the building for use. In the court's view, the one-year time-limit had been triggered by the Regional Court's decision of 28 August 1997; therefore – the one-year time-limit having been elapsed – the neighbours could no longer be denied a permit for the continued existence of the building in question. 11. This decision was upheld by the Supreme Court's appeal bench on 23 November 2005. It stressed that – contrary to what was apparently argued by the applicants – the running of the one-year time-limit had not been interrupted by the review proceedings in which the decision of 28 August 1997 had been quashed, because its execution had not been suspended.
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train
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001-85863
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ENG
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GBR
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ADMISSIBILITY
| 2,008
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PEAL v. THE UNITED KINGDOM
| 4
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Inadmissible
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David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
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The applicant, Mr Anthony Peal, is a British national who was born in 1945 and lives in Leeds. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 24 January 2000. In June 2001, the applicant made a claim for widows’ benefits. On 29 June 2001 he was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not entitled to child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0
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train
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001-57453
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ENG
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GBR
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CHAMBER
| 1,987
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CASE OF B. v. THE UNITED KINGDOM
| 2
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Violation of Art. 8;Violation of Art. 6-1;Just satisfaction reserved
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C. Russo;N. Valticos
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8. The applicant, a British citizen born in 1957, lives in England. She was brought up by her father and attended a special school for the mentally abnormal until the age of 15. Her child P was born on 17 July 1977; she had a second child on 30 January 1979 and a third on 22 September 1983. She was divorced from the father of P on 26 May 1980. 9. Four days before the birth of P, a social worker’s case conference, at which the applicant was not present or represented, was held at the hospital to consider the expected child’s interests. The conference had been arranged because the Social Services Department of the local authority ("the Authority") was aware of marital difficulties between the applicant and her husband and of possible resultant accommodation problems and was concerned as to her capacity to look after the child. It was concluded that, although she would not deliberately neglect the baby, she might prove incapable of comprehending the baby’s needs in view of her own intelligence; intensive support from health visitors and Church welfare officers was proposed. 10. After the birth, the applicant and P returned to the matrimonial home. On 22 August 1977, a health visitor was called there after the applicant had suffered violence from her husband; she went, with P, to live with her father. According to the Government, the applicant returned to the matrimonial home in October 1977 after a disagreement with her father but went back to his home on 18 November as her husband was co-habiting with another woman. The applicant denies that she left her father’s home during this period, but a social enquiry report prepared in connection with her wardship application (see paragraph 20 below) indicates that since she and P could not stay with the husband, who was living with another woman, a place was found for them at a mother and baby home. On 20 November, the social workers concerned decided that the applicant might be able to cope with P if given continuous support by a responsible adult. Since the applicant’s relationship with her father appeared to be stabilising, the Social Services Department for the area where he lived agreed to take over supervision of the family. However, this support was not given as a result of the prolonged illness of the social worker responsible. 11. On 22 March 1978, the applicant returned briefly to her husband but in April she formed a relationship with A, with whom she lived for about six weeks. On 7 April, P suffered a non-accidental injury for which, four days later, the applicant admitted responsibility. On 8 May, she appeared before a magistrates’ court, pleaded guilty to a charge of assaulting the child and was placed on probation. 12. Following a report of the last-mentioned incident, the Authority sought and, on 11 April 1978, obtained a place of safety order (see paragraph 27 below) in respect of P. As a result of the order, the child was admitted to hospital, where the injuries were found to be minor. Three days later, following a social workers’ case conference, it was decided that since the applicant had no suitable accommodation P should be discharged from hospital to a foster family whose home was near that of the applicant’s father, thus permitting her easy and regular access to the child. The Authority envisaged a rapid restoration of P to the applicant’s care. Between 14 April and 26 June, during which time she changed addresses four times and led an unsettled lifestyle, the applicant paid ten visits to the child, but somewhat erratically and without keeping to various arranged appointments. At a visit on 28 April, the applicant’s father was told by the social worker responsible of the circumstances leading to P’s placement with the foster parents. He indicated that he was not then prepared to have the applicant back and that he was satisfied that P, who was happy and well cared for, should remain with the foster parents. At that time, he considered that this was the best place for the child, with whom he would not be able to cope because of his job. 13. Until December 1978, P was subject to a series of interim care orders (see paragraph 33 below), obtained by the Authority on 8 May, 5 June, 3 July, 17 July, 14 August, 11 September, 12 October, 26 October and 23 November 1978. Following a case conference held on 12 June 1978 and attended by the social workers responsible for P, it was decided that since the applicant’s lifestyle and limited contact with the child were impeding the initial plan for their immediate rehabilitation, P should be moved to long-term foster parents living less close to the applicant’s home. According to the social welfare report, "it was decided that, in [P’s] own interests the child’s whereabouts should not be so readily available to [the applicant], [since] she did not seem to be interested in [P] and [P’s] longer term welfare needs seemed most likely to be met by placement with long-term foster parents". Neither the applicant (whose whereabouts at the time were probably unknown to the Authority) nor her father was directly involved in the procedure in which this decision was taken and they were unaware that the case conference was being held. The move was effected on 26 June and the foster parents later applied to adopt P. 14. Some two weeks after the case conference the applicant’s father expressed the wish to care for P. After extensive efforts, he succeeded in finding the applicant in mid-July 1978. She moved back to live with him and he indicated his interest in P’s future and his preparedness to help the applicant to settle down. According to the social welfare report, "in order to promote possible future rehabilitation, arrangements were made for regular monthly meetings ... between [P] and [P’s] natural family". The first of such visits, between the applicant, her father and P, took place at a day nursery on 31 August 1978 and was followed by others on 18 October and 1 November. However, the visits ceased as a result of a strike by social workers from 3 November 1978 to 23 April 1979, which made visits at the nursery under the supervision of a professional social worker impossible. The Government maintain that the applicant had agreed in advance with the Authority that visits should be so supervised, but she denies this. 15. The Authority sought and, on 5 December 1978, obtained from the local juvenile court a care order (see paragraph 32 below) in respect of P. The applicant did not appeal against this decision (see paragraph 35 below). Since the above-mentioned strike was then in progress, it is uncertain how the Authority proposed that the order should be implemented, other than by merely leaving P with the foster parents. In view of the strike no access was possible for the applicant, but the juvenile court had in any event no jurisdiction to decide the question of access, which remained a matter within the discretion of the Authority (see paragraphs 48-49 below). 16. In January 1979, the applicant was diagnosed as suffering from schizophrenia and treated at a local hospital. She was discharged with her second child, who was born on 30 January, but continued to attend as an out-patient until March when she was considered to be no longer suffering from the illness. After the end of the social workers’ strike on 23 April, the applicant requested daily access to P, but this was refused by the Authority as impractical and not in the child’s best interests. Following a case conference concerning P’s brother held on 17 May, it was agreed that representatives of the Authority should visit the applicant’s father’s home to assess the possibility of P returning to live there with the applicant. On 23 May, she and her father visited P. The Social Services Department had recommended that such visits should continue on a monthly basis and the second took place on 26 June; on that occasion the applicant’s father became aggressive and refused to permit the visit to his home envisaged at the May case conference. Following a further case conference held on 6 July to review P’s progress since coming into care, it was decided that the child was doing well with foster parents and that it was impossible to consider any proposal for rehabilitation whilst the applicant’s father refused to allow the social workers to visit his home. The applicant was not informed in advance of this conference or offered the opportunity to attend it. 17. On 19 September 1979, the juvenile court rejected an application by the applicant for the care order to be discharged (see paragraph 34 below), but recommended an increase in the frequency of her visits to P. Following a case review on 5 October, at which the social workers responsible and P’s foster parents but not the applicant or her father were present, it was decided that the visits should henceforth be at three-weekly intervals; the applicant was neither informed in advance of the review nor offered the opportunity to attend it. The last of such visits took place on 30 April 1980. 18. On 2 May 1980, the social workers responsible held a statutory review of the case (see paragraph 46 below), which was also attended by professional agencies apart from the social services. The applicant and her father were not present or represented and there is nothing to suggest that they were aware of this meeting until after it took place. Without any prior consultation with the applicant, the meeting decided to terminate her access to P forthwith. According to a social-worker report of 21 November 1980, this decision was based upon the fact that prior to the social workers’ dispute there were only vestigial signs of a relationship between the applicant and P, which had not justified an intensive programme of rehabilitation, and that these signs had disappeared when visits resumed in May 1979. In addition, there was evidence of strong bonding between P and the long-term foster parents; they were strong parental figures and the applicant’s contact with P therefore caused the child confusion. The social enquiry report states: "When access arrangements were made prior to the decision of 2 May 1980 P would arrive at the Day Nursery with his foster parents always looking paler than usual, and was quiet, and clinging to the foster mother on arrival. The foster parents would stay in the room until P settled, and occupied with a toy or game, then they would leave the room. [The applicant’s father] would leave the room for about half an hour so that P and [the applicant] could be observed together. The social worker usually would attempt to get P involved in some activity endeavouring to involve [the applicant], as she had difficulty in holding P’s attention. The social worker did on occasion leave the room so that P and [the applicant] could be alone but there was little or no evidence of a meaningful relationship developing. When [the applicant’s father] was in the room he did get a positive response from P. He was able to engage in play activities with P and during these periods P would come to life ... A health visitor from the local clinic would see P after each of these visits to see if [the child] was at all distressed by the occasions. It was noticed that P became very clinging to [the] foster mother on the day after each visit. P would wake up in the night after the visit. On the last occasion of access [the child] soiled [its] pants on the way home from the Day Nursery. This was the first time this had occurred for many months." On 8 May 1980, the Authority wrote to the applicant informing her that future access to P would not be permitted, giving as the reason that P had been showing signs of disturbance following visits by her which had proved unsettling. 19. On 30 May 1980, the juvenile court rejected a further application by the applicant to discharge the care order. She lodged an appeal with the Crown Court but this was not ultimately pursued: counsel had advised that the Crown Court, like the juvenile court, had no jurisdiction over the question of access alone but could only consider the wider issue of whether the care order should be revoked (see paragraph 49 below). 20. Counsel advised that the proper course to have the access question examined was for the applicant to apply for P to be made a ward of court (see paragraphs 43-45 and 50 below), whereupon the High Court would make such order as it thought fit in P’s best interests. On 25 September 1980, the applicant accordingly issued an originating summons in the Family Division of the High Court, pending the hearing of which P became a ward of court. The summons was dismissed - and the wardship thus terminated - on 24 November, in the light of the decision in A v. Liverpool City Council, which had just been heard in the same Division of the High Court. The latter case was then pending in the House of Lords, which gave its decision therein on 20 May 1981 (see paragraph 50 below). 21. Following the last-mentioned decision, the applicant obtained, on 5 October 1981, a limited legal aid certificate to permit her to seek counsel’s opinion on the question whether or not there was a judicial remedy available to her to challenge the Authority’s decision to refuse her access to P. On 22 January 1982, counsel advised, after a review of the authorities, that, applying the criteria set out by Lord Greene in Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation (see paragraph 49 below), "the answer would be in favour of the Local Authority". Counsel stated that "[since that Authority had] decided that access was not in the interests of [P], no Court would say that they had come to a conclusion so unreasonable that no reasonable Authority could ever have come to it. In these circumstances in my view there is not a scintilla of hope that [the applicant] would succeed in obtaining a judicial review". As a result of this opinion, the applicant’s legal aid certificate was not extended. 22. In March 1982, P’s father consented, at the request of the long-term foster parents, to the child’s adoption by them. The applicant refused to consent and the foster parents applied to the County Court for an order that the refusal be set aside as unreasonable (see paragraph 53 below). After hearing evidence, the judge found as a fact that the applicant had at all times made genuine efforts to re-establish her relationship with P; further, that when regular access to P was resumed in August 1978, the Authority and the applicant "understood and were agreed that rehabilitation between mother and child was to be pursued ... [the applicant being advised that] this rehabilitation was clearly bound to be a long and slow process". Whilst the judge accepted the possible correctness of the view of an educational psychiatrist witness that P’s welfare was best served by remaining with the prospective adopters, he held, on 12 July 1983, that the applicant’s refusal to consent was not unreasonable. 23. An appeal by the foster parents against this decision was heard on 12 October 1983. The Court of Appeal granted their request that the application to dispense with the applicant’s consent to adoption be re-heard: it considered that the County Court judge had given inadequate weight to the question whether P’s welfare did not dictate that a reasonable mother would conclude that adoption, and only adoption, would provide the child with the requisite security. 24. The matter was re-tried on 5 and 6 December 1983, when the judge dispensed with the applicant’s consent and granted an adoption order in respect of P. The judge approached the case from the point of view that if the applicant should have access to P, then no adoption order should be made; having reviewed the history of access, the judge concluded that no access should now be granted since it had not been enjoyed by the applicant for such a considerable period and the welfare of P was the first and paramount consideration. The 1978 care order in respect of P automatically terminated on his adoption. 25. In the law of England and Wales, there are a number of different and partially co-ordinated procedures for dealing with the welfare of children. Whilst the oldest of these is the wardship jurisdiction of the High Court, it has for many years co-existed with, but not been ousted by, various statutory provisions whereby a child who is at risk may be put into the care of a local authority. Although the terms are not wholly accurate, the legislation is commonly divided into two categories: the first provides for "compulsory care", by establishing machinery whereby a local authority can obtain a court order committing a child to its care; the second concerns "voluntary care", the machinery here being originally designed to meet an emergency situation without the need of recourse to the courts. At any given time, there are approximately 86,000 children in public care in England and Wales, of whom 70,000 are not living with their parents or a relative. The statutory provisions have been amended on several occasions and many of them were repealed and replaced by the Child Care Act 1980 ("the 1980 Act"), a consolidating measure the greater part of which came into force on 1 April 1981. In the following summary of the law in force at the time of the present case, the original enactments are cited first and any corresponding provision of the 1980 Act in force at the relevant time is indicated in square brackets. By way of general background information, the summary covers all three of the procedures referred to above (namely those relating to compulsory care, voluntary care and wardship), but in the present case it was the machinery for compulsory care and the wardship jurisdiction of the High Court which were directly relevant. 26. The principal statute concerning compulsory care is the Children and Young Persons Act 1969 ("the 1969 Act"), as amended by the Children Act 1975 and then partly replaced by the 1980 Act; it enables a local authority to obtain, as a temporary measure, a "place of safety order" and, as longer-term measures, a variety of other orders. 27. Under section 28(1) of the 1969 Act, any person, including a local authority, may apply to a justice of the peace for authority to detain a child and take him to a place of safety; the justice may grant the application if he is satisfied that the applicant has reasonable cause to believe, inter alia, that the child’s proper development is being avoidably prevented or neglected or his health is being avoidably impaired or neglected or he is being ill-treated, or that he is exposed to moral danger. A "place of safety order" so granted lasts for a maximum of 28 days and cannot be extended. The person detaining the child must as soon as possible take such steps as are practicable for informing his parent of the detention and the reason for it. If the local authority wishes to retain the child in protective surroundings after the 28-day period, it has either to make the child a ward of court (see paragraphs 43-45 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 28-30 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 33 below); if an application of the last kind is refused, the child’s immediate release "may be ordered". 28. Under sections 1 and 2(2) of the 1969 Act, a local authority which reasonably believes that there are grounds for making an order as to the care and control or supervision of a child is, subject to certain exceptions, under a duty to institute care proceedings by bringing the child before a juvenile court. 29. In care proceedings instituted by a local authority, the parties are the local authority and the child, but not the latter’s parents. The child is entitled, subject to his means, to legal aid and it is open to him to have his parents conduct the case on his behalf either directly or through a lawyer. If the child is of sufficient competence, he may decide that he wishes to be separately represented. A natural parent who is not acting on behalf of the child is entitled to be notified of and to attend the hearing and to give and call evidence challenging the allegations made by the local authority. As a matter of practice, the court will also allow such parent to cross-examine witnesses on behalf of the local authority and to have separate legal representation. 30. If the court before which the child is brought is satisfied that one of the grounds specified in section 1 of the 1969 Act exists and that the child is in need of care or control which he is unlikely to receive unless an order is made, it may make, inter alia, a supervision order, a care order or an interim order. The specified grounds include those on which a place of safety order may be made (see paragraph 27 above). 31. A supervision order is an order placing the child under the structured supervision of the local authority; subject thereto, he may continue to live with his parents. 32. A care order is an order committing the child to the care of the local authority. The latter will have the same powers and duties with respect to the child as his parent or guardian would have apart from the care order (section 24 of the 1969 Act [10(2) of the 1980 Act]), except that it cannot cause the child to be brought up in any religious creed other than that in which he would otherwise have been brought up and it cannot agree to the child’s adoption. 33. An interim order is a care order limited to a specified period not exceeding 28 days; it may be renewed on application (section 22 of the 1969 Act). It may be made if the juvenile court hearing the care proceedings is not in a position to decide which of the other specified orders ought to be made (section 2(10)) or, alternatively, during the currency of a place of safety order (see paragraph 27 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 32 above). 34. A full care order normally terminates when the child in question attains the age of 18 (section 20(3)(b) of the 1969 Act). In addition, under sections 21(2) and 70(2), the juvenile court may, on application by the child or his parent on the child’s (but not his own) behalf and if it considers it appropriate, discharge the care order and may, on discharging it, make a supervision order in respect of the child. Such applications may be made every three months or, with the juvenile court’s permission, more frequently (section 21(3)). The paramount consideration in deciding whether to discharge the order is the interests of the child. 35. Under sections 2(12) and 21(4) of the 1969 Act, the child in respect of whom the care order was made, or his parent on the child’s (but not his own) behalf, may appeal to the Crown Court against the making of a care order, against the refusal of an application to discharge a care order or against the making of a supervision order on its discharge. The Crown Court will review the decision by way of re-hearing the case. From the Crown Court a further appeal may, with leave, be made to the High Court by way of case stated; thereafter an appeal lies to the Court of Appeal and, in rare cases, to the House of Lords. The local authority has no general right to appeal against a juvenile court’s refusal to make a care order, except on a point of law to the High Court. 36. The principal statute concerning voluntary care is the Children Act 1948 ("the 1948 Act"), as amended by the Children Act 1975 and then replaced by the 1980 Act. This legislation in effect enables a parent to place his child into the care of a local authority; at the initial stage the authority acquires no special status in relation to the child but a different situation may arise subsequently. 37. Section 1 of the 1948 Act [2 of the 1980 Act] imposes on the local authority a duty to receive into its care a child under 17 where it appears, inter alia, that his parents or guardian are for the time being or permanently prevented by illness, incapacity or other circumstances from providing for his proper accommodation, maintenance and upbringing and that the intervention of the authority is necessary in the interests of the child’s welfare. Whilst the authority must, save as otherwise provided in the Act, keep the child in its care so long as his welfare requires it and he has not attained the age of 18, it is also under a duty to endeavour to secure the resumption of parental care where this appears consistent with the child’s welfare. 38. Section 1 of the 1948 Act [2 of the 1980 Act] specifies that it does not entitle the local authority to keep the child in care if any parent or guardian desires to take over that care. However, if the child has been in care throughout the preceding six months, no person may take him away unless he has given at least 28 days’ notice of his intention to do so or has the authority’s consent (section 1(3A) [13(2)]). Moreover, if a parent requests the return of the child, the authority is not compelled to comply regardless of his welfare (Lewisham London Borough Council v. Lewisham Juvenile Court Justices [1979] 2 All England Law Reports 297). If it then considers the transfer of care to the parent to be inconsistent with that welfare, it may either pass a parental rights resolution (see paragraph 39 below) or apply to make the child a ward of court (see paragraphs 43-45 below). 39. If it appears to a local authority in relation to any child who is in its care under section 1 of the 1948 Act [2 of the 1980 Act] that, inter alia, a parent of his is unfit to have the care of the child on account, notably, of his habits or mode of life or of having consistently failed without reasonable cause to discharge the obligations of a parent, the local authority may resolve that there vest in it the parental rights and duties with respect to that child (section 2(1) [3(1)]). The rights and duties which so vest are all rights and duties which by law the mother and father have in relation to a legitimate child and his property, including "a right of access" but excluding the right to agree or refuse to agree to the making of an adoption or certain related orders (section 2(11) of the 1948 Act [3(10) of the 1980 Act] and section 85(1) of the Children Act 1975). Before passing a parental rights resolution, the local authority must consider a report from its Social Services Department on the desirability of assuming parental rights, which report should contain all the material necessary for the proper exercise of the authority’s discretion. In deciding the matter, the authority is to regard the interests of the child as of paramount importance and the views of the parents on the proposal are to be taken into account. 40. If the parent has not already consented in writing to the parental rights resolution and his whereabouts are known, he must be served with notice of it, indicating his right to object by counter-notice within one month (section 2(2) and (3) of the 1948 Act) [3(2) and (3) of the 1980 Act]). If such objection is made, the resolution lapses on the expiry of 14 days from service of the counter-notice (section 2(4) [3(4)]). However, within that period, the local authority may "complain" to a juvenile court, in which event the resolution will not lapse until the complaint is determined; on hearing the complaint, the court may order that the resolution is not to lapse, provided that it is satisfied that the grounds for the resolution were made out when it was passed and subsist at the time of the hearing and that the continuation of the resolution is in the child’s interest (section 2(5) [3(5) and (6)]). 41. A parental rights resolution continues in force until the child attains the age of 18, unless it is previously rescinded by the local authority or terminated by a juvenile court (section 4 of the 1948 Act [5 of the 1980 Act]). The parent concerned, even if he did not originally object to the parental rights resolution, may apply to a juvenile court for its discharge. The court may grant the application if it is satisfied that there were no grounds for the making of the resolution or that it should be terminated in the child’s interests (section 4(3)(b) [5(4)(b)]). An application based on the original foundation for the resolution can, however, be entertained only if lodged within six months of its adoption (section 127 of the Magistrates’ Court Act 1980). 42. Under section 4A of the 1948 Act [6 of the 1980 Act], an appeal (by the parent or the local authority) lies to the Family Division of the High Court from the making by a juvenile court of an order confirming (under section 2(5) [3(6)]) or discharging (under section 4(3)(b) [5(4)(b)]) a parental rights resolution, or from a juvenile court’s refusal to make such an order. A further appeal lies to the Court of Appeal and, with leave, to the House of Lords. 43. The Family Division of the High Court has an inherent jurisdiction, independent of statutory provisions and deriving from the prerogative power of the Crown acting in its capacity as parens patriae, to make a child a ward of court. 44. The effect of wardship is that custody, in a broad sense, of the child is vested in the court itself; it assumes responsibility for all aspects of his welfare and may make orders on any relevant matter whatsoever, notably as regards the care and control of and access to the child and his education, religion or property. In making such orders, the court is required to treat the child’s welfare as the "first and paramount consideration" (Guardianship of Minors Act 1971, section 1). Unless terminated earlier by order of the court, the wardship continues until the child attains his majority. Where there are exceptional circumstances making it impracticable or undesirable for the ward to be, or continue to be, under the care of his parents, the court may make an order committing him to the care of the local authority (Family Law Reform Act 1969, section 7(2)), subject to the power of the court to give directions (Matrimonial Causes Act 1973, section 43(5)(a)). In such circumstances, custody of the child remains with the court and it is for the court, and not the local authority, to take major decisions regarding the ward’s future; it retains, inter alia, jurisdiction to make orders for access to the child. 45. Wardship proceedings may be instituted by anyone who can show an appropriate interest in the child’s welfare. An application for a wardship order has to be made by originating summons. The child becomes a ward immediately the summons is issued but the wardship automatically lapses after 21 days unless within that time an appointment is made for the hearing of the summons. This appointment is normally held before a registrar who, subject to an appeal to a judge, may give interim directions on such matters as access to the child and may decide that other interested parties be joined in the proceedings. A judge will hear contested wardship proceedings and also applications - which can be made at any time by any party - for the variation or discharge of an existing wardship order or for directions on such matters as access to or the education of the child. From the judge’s order, an appeal lies to the Court of Appeal and thence, with leave, to the House of Lords. The child may be represented in wardship proceedings by a guardian ad litem appointed by the court; this is usually the Official Solicitor, who is a full-time public employee entirely independent of the executive. Under the Rules of the Supreme Court, it is possible to seek an order expediting the proceedings, notably if a party thereto is dilatory. 46. The functions of a local authority in child-care matters are exercised and decisions are taken either by its Social Services Committee or by a sub-committee or an officer to whom powers have been delegated. At the time relevant to the present case, the practice varied from authority to authority, there being no precise requirements or guidance even of a non-statutory kind, and much depended on the nature or gravity of the decision to be taken. Whether the child is in its care by virtue of the 1948 [1980] or the 1969 Act, the local authority must give first consideration to the need to safeguard and promote the child’s welfare throughout his childhood, and must so far as practicable ascertain his wishes and feelings regarding the decision and give due consideration to them, having regard to his age and understanding (section 59 of the Children Act 1975 [18(1) of the 1980 Act]). Authorities’ decisions in this area are, in fact, often based on the outcome of case reviews or case conferences. The authority is under a statutory duty to review the case of each child in its care at six-monthly intervals (section 27(4) of the 1969 Act) and, as a matter of practice, the child’s position will in addition be regularly examined at case conferences. Reviews and conferences will be attended notably by the social workers responsible and senior officials of the authority’s Social Services Department, as well as by such other persons as health visitors, doctors and police officers. 47. A parent may on occasion be allowed or invited to attend a case review or case conference or part thereof, although he has no legal right to do so. His contacts with the social workers constitute the most usual channel for the communication of his views on matters to be decided by the authority. In the absence of legal proceedings, the parent cannot compel the local authority to produce or permit inspection of the minutes of its relevant meetings or reports produced thereat, although the authority has a discretion to allow such inspection. In proceedings for judicial review (but not in juvenile court proceedings), the court may order the pre-trial disclosure of such documents, but only after leave to institute the proceedings has been obtained (see paragraph 49 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection. 48. A parent whose child is in the care of a local authority is not automatically deprived of access to him. The continuation of access is, however, a matter within the discretionary power of the authority (per Lord Wilberforce in A v. Liverpool City Council [1981] 2 All England Law Reports 385). Thus, under English law, the question whether and to what extent a parent is to have access to his child who is in public care was, at the relevant time, within the competence of the local authority to decide, without any application to a court. Both the 1948 [1980] Act and the 1969 Act reflect the general idea that continuation of parental access to children in public care is in many cases normal and desirable: the former allows the local authority to contribute to the costs of parental visits and the latter makes special provision for certain cases where the parents have not visited the child during a certain period of time. 49. The statutory remedies described in paragraphs 34-35 and 40-42 above, whereby a parent may challenge or seek the discharge of a care order or a parental rights resolution, are directed to the order or resolution as such, there being, at the relevant time, no specific statutory remedy whereby he could contest the isolated issue of a decision to restrict or terminate his access to his child. A decision of a local authority concerning access can, however, be challenged by way of an application for judicial review. Anyone who wishes to make such an application must first seek, normally within three months of the decision, the leave of the court. The circumstances where judicial review will lie may be briefly summarised as follows: (a) the authority acted illegally, ultra vires or in bad faith; (b) the authority failed to take into account relevant considerations, took account of irrelevant considerations or came to a decision to which no reasonable authority could have come (Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223); (c) the authority failed to observe statutory procedural rules or to act fairly (see notably R v. The Bedfordshire County Council, ex parte C and R v. The Hertfordshire County Council, ex parte B, Times Law Reports, 19 August 1986). The remedy of judicial review is concerned with reviewing not the merits of the decision in question but rather the decision-making process itself, and the court will not act as a "court of appeal" from the body involved. Thus, where on a successful application for judicial review the court quashes an authority’s decision, it will normally remit the matter to the authority for reconsideration; it may, however, also direct the authority to reach a conclusion in accordance with the court’s findings (Rules of the Supreme Court, Order 53, rule 9(4)). 50. In certain circumstances, the wardship jurisdiction may also be invoked to question the decisions of a local authority or a juvenile court relating to a child in the former’s care. The general rule is that the prerogative power of the Crown is not for all purposes ousted or abrogated by the exercise of the duties and powers conferred on local authorities by legislation. In the leading case of A v. Liverpool City Council, the House of Lords examined the relationship between the wardship jurisdiction and the authorities’ statutory powers. Their Lordships were unanimously of the view that the courts had no reviewing powers as to the merits of local authority decisions, notably on such matters as access to the child: the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of local authorities but not to supervise (except on judicial review principles; see paragraph 49 above) the exercise of discretion within the field committed to them by statute. Sometimes, however, the local authority itself may invite the supplementary assistance of the court and the wardship may then be continued with a view to action by the court. The foregoing limits on the High Court’s powers apply only where the wardship proceedings concern a child who is already in public care. If he is not, the High Court can examine fully such questions as access and make such order as it considers to be in his best interests. 51. The inability of parents to approach the courts, save as explained above, where decisions are made by a local authority affecting access to their children led Parliament, in the Health and Social Services and Social Security Adjudications Act 1983, to modify the law on this point. Under the new provisions - which came into force on 30 January 1984, that is after the events giving rise to the present case -, a local authority may not refuse to make arrangements for access to a child in care and may not terminate such arrangements unless it has first given notice to the parent. The latter then has a right to apply to a juvenile court for an access order, requiring the local authority to allow access subject to such conditions as the court may specify. Where an access order has been made, there is a right to apply for variation. An appeal against the juvenile court’s decision lies to the High Court. Any court dealing with the matter must regard the welfare of the child as the first and paramount consideration. This new remedy applies only to decisions refusing or terminating access; in all other cases, the nature and extent of access remain within the local authority’s discretion. 52. In December 1983, the Government published a Code of Practice on Access to Children in Care. This document stresses the importance of involving the child’s natural parents in the local authority’s decision-making process in this area and of informing them fully and promptly as to the substance of decisions concerning access. 53. A court cannot make an adoption order in respect of a child unless, inter alia, it is satisfied that each parent freely and unconditionally agrees (Children Act 1975, section 12). However, such agreement may be dispensed with upon a number of grounds specified in that section, notably that the parent is withholding consent unreasonably or has persistently failed without reasonable cause to discharge his parental duties. In reaching any decision relating to the adoption of a child, a court must have regard to all the circumstances, first consideration being given to the need to safeguard and promote his welfare throughout his childhood (Children Act 1975, section 3). 54. Adoption proceedings in respect of a child who is a ward of court may not be instituted without the leave of the High Court. On an application for leave, the court’s function is to consider whether the proposed adoption application is one that might reasonably succeed, the merits of the matter being examined subsequently, once leave has been granted and after compliance with the requirements concerning notices and reports.
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train
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001-103580
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ENG
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ALB
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ADMISSIBILITY
| 2,011
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ZALLI v. ALBANIA
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Inadmissible
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Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
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The applicant, Mr Selami Zalli, is an Albanian national who was born in 1961 and lives in Tirane. He is currently working as legal officer at the Supreme Court. The Albanian Government (“the Government”) were represented by their Agent, Mrs E. Hajro. The facts of the case, as submitted by the parties, may be summarised as follows. In November 1993 the applicant was appointed as a prosecutor at the Tirana District Prosecutor’s Office (“DPO”). From July 1994 to May 2001 the applicant worked as a prosecutor at the Prosecutor General’s Office (“the PGO”). In 2001 the Prosecutor General (“the PG”) proposed that the applicant be transferred to another DPO, as a result of which he would be demoted and his earnings would decrease. The applicant contested the proposal on the ground that there was no reason for his transfer and demotion. On 24 May 2001 the Prosecutor’s Office Council endorsed the PG’s proposal. By virtue of a presidential decree of 1 June 2001, the applicant’s transfer took effect. On the same day the applicant took up his functions as prosecutor at the Pogradec DPO. His basic remuneration was halved. On 27 November 2001 the applicant lodged a constitutional appeal with the Constitutional Court against the presidential decree. On 21 February 2002 the Constitutional Court declared his complaint inadmissible for non-exhaustion of remedies as provided for under Article 131 (f) of the Constitution. On 18 March 2002 the applicant challenged his transfer before the Tirana District Court (“the District Court”). He argued that the transfer and demotion were in breach of the Prosecutor’s Office Act and adversely affected his career, income and related expenses. On 15 April 2002 the District Court decided to transfer the case to the Tirana Court of Appeal (“the Court of Appeal”), on the grounds that it lacked jurisdiction. It reasoned that the applicant’s transfer was akin to a disciplinary measure, for which the Court of Appeal had initial jurisdiction pursuant to section 34 of the Prosecutor’s Office Act. On an unspecified date, while the proceedings were pending before the Court of Appeal, the applicant made a claim for compensation for loss of earnings as a result of the transfer. In his final submissions to the Court of Appeal, the applicant argued that the said court was competent to examine issues relating to the transfer of prosecutors. He contended that his transfer had been contrary to the domestic law in so far as he had not given his opinion, the transfer had not been on the same hierarchical level and the subsequent demotion had not been temporary. He maintained that he had suffered a loss of earnings as a result of the transfer. On 18 September 2002 the Court of Appeal found in the applicant’s favour and quashed the presidential decree. It held that the applicant’s transfer had affected his employment relationship and resulted in the change of his job and a decrease in remuneration. The court interpreted section 24 of the Prosecutor’s Office Act to mean that the applicant’s consent was required for the transfer, in the absence of which the procedure was not in compliance with the law. There was no mention of the applicant’s claim for compensation for loss of earnings. On 15 October 2002 the PG’s office appealed to the Supreme Court. In an effort to harmonise the judicial practice inter alia on the legal nature of the presidential decree and its amenability to judicial review, on 30 October 2002 the President of the Supreme Court decided that the case should be examined by the Joint Benches (Kolegjet e Bashkuara). On 30 January 2003 the Supreme Court Joint Benches, by 10 votes to 5, quashed the Court of Appeal’s judgment, holding that a presidential decree in relation to the appointment, transfer or dismissal of a prosecutor was not subject to judicial review, owing to the special employment relationship that existed between the State and such officials. The Supreme Court Joint Benches decided to discontinue the case. On 10 June 2003 the applicant appealed to the Constitutional Court. He argued that the decision of 30 January 2003 had breached his right of access to a court. He further submitted that the presidential decree ordering his transfer was an administrative act, which was subject to judicial review. On 23 December 2003 the Constitutional Court quashed the Supreme Court Joint Benches’ decision. Relying on its decision no. 25/2002, the Constitutional Court found that the presidential decree concerning the appointment and dismissal of a prosecutor was an administrative act which should be amenable to judicial review. Since the Supreme Court had not examined the merits of the PG’s office appeal, the case was remitted for a determination of the merits. On 29 June 2004 the Supreme Court Joint Benches held a hearing. The applicant argued that his transfer was not justified. He was of the view that the term “opinion” in section 24 of the Prosecutor’s Office Act should be interpreted as “consent”. He further contended that the transfer, which resulted in his demotion and a decrease in his remuneration, was unlawful. The PG’s Office argued that the transfer was grounded on the organisational needs of the prosecutor’s office. It was not essential to have the consent of the prosecutor to his transfer. Other prosecutors had also been transferred against their wishes. On 1 July 2004 the Supreme Court Joint Benches, by 10 votes to 6, quashed the Court of Appeal’s judgment and dismissed the applicant’s claims. It found that the applicant’s transfer had occurred “out of necessity and in the interest of work” in accordance with section 24 of the Prosecutor’s Office Act. It further held that the applicant’s consent to his transfer was not required by law. The law only stipulated that the applicant’s opinion be sought before his transfer. The Supreme Court Joint Benches recognised the applicant’s right to seek compensation for loss of earnings and other benefits. However, since the applicant’s claim was directed at the unlawfulness of the presidential decree and since the Court of Appeal had not examined his compensation claim, the Supreme Court decided that it could not examine that claim of its own motion. It ruled however that the applicant could file afresh a claim for compensation for loss of earnings. To date, it does not appear that the applicant has lodged a new claim for compensation with the District Court. Of the 10 judges of the Supreme Court who voted against the case on 1 July 2004, 8 had been members of the bench which, on 30 January 2003, had dismissed the case. On 29 June 2006 the applicant appealed to the Constitutional Court and challenged the decision of 1 July 2004. He claimed that his case had not been heard by “a tribunal established by law” in rehearing proceedings. Since the decision of the Supreme Court did not aim at harmonising and unifying judicial practice, the applicant argued that his case should have been heard by a Chamber instead of the Joint Benches in rehearing proceedings. He also complained that, despite his request for compensation for loss of earnings, the Supreme Court’s refusal to award him compensation for damage as a result of the transfer and demotion was against its case-law (see the “Relevant domestic law and practice” section below). In his view, this amounted to a lack of impartiality. On 3 May 2007 the Constitutional Court, by means of a reasoned decision, rejected the applicant’s appeal. It found that there had been no breach of the applicant’s right of access to a court on account of the courts’ failure to examine his additional claim for damages. The Constitutional Court decided that his claim for compensation submitted to the Court of Appeal did not meet the requirements of a proper civil action in so far as the claim had not been quantified. The lower courts were therefore not obliged to examine the request. Moreover, the Supreme Court had informed the applicant of his right to lodge a new civil claim for damages. The Constitutional Court further found that the examination by the Supreme Court Joint Benches had been by a tribunal established by law. It found that the applicant’s claim regarding the lack of impartiality of the Supreme Court’s Joint Benches in the rehearing proceedings was ill-founded. In an article entitled “The judicial review of the lawfulness of administrative acts”, published in a law journal in November 2002, the then President of the Supreme Court concluded that presidential decrees concerning the appointment, dismissal and ranking of military officers, prosecutors or ambassadors could not be subject to judicial review. Under Article 131 (f) the Constitutional Court decides on “final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 141 § 2 stipulates that the Supreme Court sits in Joint Benches to examine cases that would harmonise or amend judicial practice. Article 148 provides that the Prosecutor’s Office (“the PO” - Prokuroria) is a centralised institution. The Supreme Court is composed of 17 judges (section 1). It examines cases in Civil and Criminal Chambers (section 10). It also sits in Joint Benches in order to, inter alia, harmonise and amend judicial practice (section 14). A request to sit in Joint Benches is made by one of the benches, the President of the Supreme Court or the Joint Benches (section 17). The quorum for the composition of Joint Benches is two thirds of all the judges. A decision is taken by a simple majority of the Joint Benches (section 16). Civil proceedings start on the strength of a civil claim (Article 153). A civil claim should contain the name of the court it is addressed to, the personal details and residence of the claimant, the object of the claim, description of facts, circumstances, documents and other evidentiary materials, the claimant’s request and its value (Article 154). The General Prosecutor (“GP”) is the highest authority of the PO (section 8 § 1). The structure of the PO is made up of three layers: the district courts’ prosecutors, the courts of appeal prosecutors and the Supreme Court prosecutors, whose duties are exercised by the prosecutors attached to the GPO (sections 13-15). District courts’ prosecutors are appointed by a decree of the President of the Republic, on the proposal of the GP, after having had the opinion of the PO’s Council (section 21). Before taking up their duties, prosecutors take an oath (section 22). According to the 2001 Prosecutor’s Office Act, the promotion or transfer of a prosecutor could occur only out of necessity and in the interest of work. It was finalised by a presidential decree, on the proposal of the GP, after having heard the prosecutor’s opinion (section 24). The PO’s Council is responsible for the appointment and appraisal of prosecutors. It also examines disciplinary breaches as a result of which it adopts advisory opinions (sections 10, 31 and 42). Disciplinary measures may be appealed against to the Court of Appeal (section 34). The case concerned the impossibility of having access to a court against a presidential decree which ordered a prosecutor’s dismissal, as provided by section 34 § 2 of the Prosecutor’s Office Act. In its decision no. 25 of 13 February 2002 (25/02) the Constitutional Court declared section 34 § 2 of the Prosecutor’s Office Act unconstitutional as it was against Article 42 of the Constitution and Articles 6 § 1 and 13 of the Convention. It thus opened the way for a prosecutor to challenge a presidential decree ordering his dismissal before a court. The case concerned the unjust dismissal of a police officer and his right to compensation for damage. The Supreme Court Joint Benches ruled that a police officer who was unjustly dismissed from work was entitled to compensation for loss of earnings. Such an action did not need to be explicitly sought. It sufficed that a police officer challenged the unjust termination of his employment for the court to (automatically) examine the consequences that resulted from such a termination, that is, compensation for damage. The burden of proof was on the appellant in quantifying the damage.
| 0
|
train
|
001-86959
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF ALEKSEY MAKAROV v. RUSSIA
| 4
|
Violation of Article 5 - Right to liberty and security
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
6. The applicant was born in 1988 and lives in Moscow. 7. The applicant was a member of a public association, the National Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian Federation ordered its dissolution. On 19 January 2006 the Federal Registration Service of the Ministry of Justice refused an application for registration of a political party by the same name. Party members challenged the refusal before the Taganskiy District Court of Moscow. 8. On 13 April 2006 fifteen party members, including the applicant, came to the Taganskiy District Court for a hearing concerning the refusal to register the National Bolsheviks Party. The applicant alleged that near the court building they had been attacked by a group of forty people and had had to defend themselves. According to the Government, the party members, including the applicant, had assaulted passers-by with gas guns and rubber truncheons. 9. On 11 July 2006 the applicant was arrested. The arresting officer indicated in his report that the victims had identified the applicant as one of the perpetrators of the assault. 10. On 12 July 2006 he was charged with participation in mass disorders, involving the use of gas guns, assault and battery, an offence under Article 213 § 2 of the Criminal Code. 11. On 13 July 2006 the Tverskoy District Court of Moscow remanded the applicant in custody. It referred to the gravity of the charge, “his role in the imputed offence”, his record of administrative offences and his frequent absences from his registered place of residence. It also found that his accomplices whose identity had not been established were at large. The court concluded from that that the applicant might abscond or reoffend. 12. On 8 September 2006 the Tverskoy District Court extended the applicant’s detention until 16 November 2006. The court referred to the gravity of the charge, the possibility of his absconding or reoffending and the need for a further investigation. In particular, it was necessary to perform a psychiatric examination on a co-accused. 13. In his appeal submission the applicant complained that the court’s conclusions were hypothetical and were not supported by relevant facts. The applicant had permanent residence in Moscow, attended university and had positive references. There was no risk of his absconding or reoffending. 14. On 4 December 2006 the Moscow City Court upheld the detention order on appeal, finding that it had been lawful, sufficiently reasoned and justified. 15. On 15 November 2006 the Tverskoy District Court ordered a further extension of the applicant’s detention until 11 January 2007. At the hearing the applicant asked to be released on bail or under the personal guarantee of a member of the Russian Parliament. However, the court did not examine the possibility of a more lenient preventive measure. The extension order read as follows: “The court takes into account that [the applicant] has no criminal record, lives with his parents at his registered place of residence in Moscow, is successfully pursuing studies at [a university in Moscow], and has positive references. However, as he is charged with a serious criminal offence punishable by more than two years’ imprisonment, the court considers that he may abscond or interfere with the investigation if released. The preventive measure should accordingly be maintained.” 16. On 25 December 2006 the Moscow City Court upheld the extension order on appeal. 17. On 11 January 2007 the Tverskoy District Court extended the applicant’s detention until 16 March 2007. The court found that the applicant might abscond or hamper the investigation as he had been charged with a serious criminal offence and had a record of administrative offences. In reply to the applicant’s request to be released on bail or under the personal guarantee of a member of the Russian Parliament, the court held that there was no reason to vary or cancel the preventive measure. 18. The applicant appealed. He denied involvement in any criminal activity and alleged that the criminal proceedings against him were politically motivated and that he was being persecuted for his membership of the National Bolshevik Party. Referring to Article 5 § 3 of the Convention, he complained that his detention was based on the gravity of the charge against him and that the conclusions that he might flee or impede the investigation were hypothetical and were not supported by relevant facts. The District Court had disregarded his arguments that he had positive references, that a member of Parliament had vouched for his attendance and that he was ready to post bail. As to his record of administrative offences, administrative fines had been arbitrarily imposed on him for attendance at peaceful assemblies organised by the National Bolshevik Party. The parties did not inform the Court whether the appeal had been examined. 19. On 2 March 2007 six defendants, including the applicant, were committed for trial. 20. On 12 March 2007 the Taganskiy District Court of Moscow scheduled the preliminary hearing for 20 March 2007 and held that all the defendants should remain in custody. 21. On 24 May 2007 the Taganskiy District Court remitted the case for a further investigation. 22. On 28 June 2007 the Tverskoy District Court extended the applicant’s detention until 6 August 2007 for the same reasons as before. The court found that the positive references and the personal guarantee of a member of Parliament produced by the applicant were insufficient to warrant release. Given the gravity of the charge against him and his record of administrative offences, he might abscond or interfere with the proceedings in some other way. On 1 August 2007 the Moscow City Court upheld the extension order on appeal. 23. On 2 August 2007 the defendants were again committed for trial. 24. On 8 August 2007 the Taganskiy District Court held a preliminary hearing and ordered that all the defendants should remain in custody. It found that the defendants had been charged with a serious offence committed by an organised group some members of which had not yet been identified, and concluded that they might abscond or intimidate the victims and witnesses. It further noted that the defendants’ assurances that they had no intention of absconding were unconvincing and held that there was no reason to apply a more lenient preventive measure. 25. In September 2007 the applicant and his co-defendants lodged applications for release with the Taganskiy District Court. On 12 September 2007 the Taganskiy District Court rejected their applications. It noted that the defendants’ arguments had already been examined and rejected many times when extension orders had been issued. It found that the grounds for the defendants’ detention mentioned in the extension orders were still pertinent and it was still necessary to hold them in custody. The defendants had been charged with a serious criminal offence committed by an organised group, some members of which had not yet been identified. Given the gravity of the charges against them, they might abscond, reoffend or interfere with the establishment of the truth if released. 26. On 26 December 2007 the Taganskiy District Court extended the defendants’ detention until 12 April 2008. It found that the grounds for their detention mentioned in the previous extension orders were still pertinent and a risk remained of their absconding, reoffending or obstructing the justice. The court also noted that the defendants’ arguments about the absence of corpus delicti in their actions and about the lack of evidence of their involvement in the commission of the imputed offence were without substance because, in extending the defendants’ detention, the court could not make any findings as to their guilt or innocence. 27. It appears that the criminal proceedings against the applicant are still pending. 28. Since 1 July 2002 criminal law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). 29. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 30. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). 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 99). 31. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 32. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 33. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
| 1
|
train
|
001-22932
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,002
|
VOROBYEVA v. UKRAINE
| 3
|
Inadmissible
| null |
The applicant, Lyudmila Grigoryevna Vorobyeva, is a Ukrainian national who was born in 1937 and resides in Kharkov. The facts of the case, as submitted by the applicant, may be summarised as follows. In May 2001 the applicant instituted civil proceedings in the Dzerzhinsky District Court, Kharkov, against her former employer seeking reinstatement, unpaid salary and compensation. On 12 September 2001 the court found in part for the applicant. On 17 January 2002, the Kharkov Appellate Court dismissed an appeal by the applicant. The applicant did not appeal in cassation against the decisions to the Supreme Court of Ukraine. A third level of jurisdiction, to be part of the ordinary judicial procedure, was introduced into the Ukrainian legal system by the Law of 21 June 2001 on the Introduction of Changes to the Code of Civil Procedure of Ukraine, which came into force on 29 June 2001. Under the new provisions, the parties are entitled to appeal against the decision of the first instance court and the appellate court to the Supreme Court of Ukraine, acting as a court of cassation. Under the second paragraph of Article 320 of the Code of Civil Procedure (hereafter the “CCP”), the basis for a cassation appeal is the incorrect application of the norms of substantive law or the infringement of the norms of procedural law. Article 329 of the CCP provides for the filter of cassation appeals by a panel of three judges of the Civil Chamber of the Supreme Court who decide whether or not leave to appeal should be granted. No participation of the parties is foreseen at this stage of proceedings. Leave to appeal is granted unless the panel unanimously decides otherwise. Under Article 334 of the CCP, the Supreme Court, acting as the court of cassation, has the power to: 1) reject the cassation appeal; 2) fully or partly annul the judicial decision at issue and remit the case for a re-hearing to the court of first instance or appellate court; 3) annul the decision at issue and leave in force a judgment that was quashed by an appeal court in error; 4) annul the decision at issue, terminating the proceedings in a civil case and refusing to allow an applicant’s claims; 5) change the decision on the merits of the case and not remit it for further consideration. The system became effective as of 29 June 2001 and concerned cases pending before first and second instance courts. Under the transitional provisions of the same law, any final decision in a civil case could be appealed under the new cassation procedure within three months of the new law coming into force, that was from 29 June to 29 September 2001.
| 0
|
train
|
001-5068
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,000
|
ENZI v. AUSTRIA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is an Austrian national living in Tschagguns, Austria. She 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. The applicant is the owner of altogether nine parcels of land situated in Tschagguns, namely nos. 1862, 1863/1, 1863/4, 1864/1, 1865/1, 1866, 1867, 569 and 570, all registered under file no. 641 of the Tschagguns land register (Grundbuch). All parcels are designated as agricultural land (Freifläche/Landwirtschaftsgebiet) in the area zoning plan (Flächenwidmungsplan), with the exception of parcels no. 569 and 570 which are marked out as building land. Parcels nos. 569 and 570 on which two buildings are erected, namely a farmhouse and a barn, are surrounded by parcel no. 1867 which is agricultural land. Adjacent to this are parcels nos. 1866 and 1863/4. The other parcels owned by the applicant, parcels nos. 1862, 1863/1, 1864/1 and 1865/1, form a further complex of land, divided from the other plots by a small road. On 22 January 1991 the applicant, represented by counsel, filed a request with the Tschagguns Municipality for a partition of land (Grundstücksteilung) according to a map drawn up by a civil engineer. This request related to the complex of land formed by parcels nos. 1862, 1863/1, 1864/1 and 1865/1. As to this map the applicant stated in her request: this map reflects the wish of the petitioner to have her parcels reasonably partitioned in such a way that they could later be used as building land. She further mentioned that a previous request for an amendment of the area zoning plan in force had been refused on the basis of a negative report by an official expert. The partition map attached to the new request was to be considered as an expert report refuting the findings of the official expert in the previous proceedings. On 4 November 1991 the Tschagguns Municipal Executive Committee (Gemeindevorstand) dismissed the applicant’s request. It found that the requested partition was contrary to the area zoning plan. Since a change of the land’s designation into building land was not possible, it had to be treated as agricultural land. The requested partition was contrary to the objectives mentioned in the Vorarlberg Planning Act (Raumplanungsgesetz), in particular the maintenance and development of the rural conditions for agriculture, as the granting of the partition would lead to an unreasonable dispersion of agricultural land. As regards the applicant’s complaint about the official expert’s report, the Executive Committee noted that her previous request for a change of the designation of the land had already been rejected by the Municipal Council (Gemeindevertretung) on 31 October 1990. That decision had partly been based on a report prepared by an official expert. The map submitted by the applicant could not be considered equivalent to an expert report. On 19 November 1991 the applicant appealed to the Appeal Board (Berufungskommission) of the Tschagguns Municipality. She also requested the Appeal Board to obtain the expert report of a civil engineer on the possible future non-agricultural use of her land. As in her initial request, she stated that the map reflected her wish to have her parcels reasonably partitioned in such a way that they could be used as building land later on. On 10 August 1992 the applicant supplemented her appeal. She stated that it was not necessary to hear an expert for agriculture as the main purpose of the partition proceedings was to change in the future the use of the land. Instead of an agricultural expert a building engineer should be heard as expert. On 2 October 1992 the Appeal Board of the Tschagguns Municipality dismissed the applicant’s appeal. Referring to a report by an official expert of the District Authority for Agriculture (Agrarbezirksbehörde), it found that the partition of the land at issue, including the construction of an access road to some of the parcels, would render the agricultural exploitation of the land more difficult and the exploitation of parts of the land by agricultural machines impossible. Thus, from an agricultural viewpoint the partition of the land made no sense. The partition was, therefore, contrary to the area zoning plan in force and contrary to the objectives provided for in the Planning Act, since the primary purpose of the partition, which the applicant had admitted, was the change of the designation of the land into building land. It had not been necessary to obtain another report from a non-agricultural expert on the possible future use of the land, as requested by the applicant, because this land was, according to the area zoning plan, designated as agricultural. On 19 October 1992 the applicant filed a further appeal to the Bludenz District Administrative Authority (Bezirkshauptmannschaft). She stated that it was unreasonable to continue to use the land for agricultural purposes. It was only logical that, once the land was properly partitioned, its designation in the zoning plan would have to be changed. On 30 December 1992 the Bludenz District Administrative Authority dismissed the appeal. On 9 February 1993 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She complained in particular that her request for the partition of her land had not been decided by a tribunal within the meaning of Article 6 § 1 of the Convention, that no oral hearing had been held and that the authorities had not sufficiently taken into account the map prepared by the civil engineer. She also submitted that the area zoning plan was unlawful, and recommended a change of the designation of her land therein: On 27 September 1993 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success, and remitted the case to the Administrative Court (Verwaltungsgerichtshof). The Constitutional Court, referring to its previous case-law, found that a request for the partition of land did not involve the determination of civil rights, within the meaning of Article 6 of the Convention, and that the applicant had failed to substantiate which laws had been infringed by the area zoning plan. On 31 January 1994 the applicant supplemented her complaint to the Administrative Court and requested an oral hearing before the Administrative Court, combined with an inspection of the location, in the course of which the civil engineer who had drawn up the partition map should be heard as a witness. On 23 February 1995 the Administrative Court dismissed the applicant’s complaint. The Court found that, on the basis of the area zoning plan in force, the authorities had only to examine whether the partition was contrary to the objectives set out in the Vorarlberg Planning Act, in particular the maintenance of agricultural area s. Since it had been established that a partition would render more difficult the agricultural exploitation of the land which, contrary to the applicant’s submissions, was still possible at the present stage, the Administrative Court found that the conditions for a partition of the land were not met. Furthermore, there was no question of any preferential treatment of the official agricultural expert by the authorities, because the experts dealt with different facts. While the private expert, i.e. the civil engineer who had drawn up the partition plan, dealt with a hypothetical future use of the land as building land, the official agricultural expert’s starting point was the actual designation of the land. The Administrative Court rejected the applicant’s requests for an oral hearing and an on-site inspection, as it found that such measures would not clarify the case further. The main question in the present case was whether the proposed partition of the land would render its cultivation more difficult and not, as had been suggested by the applicant, what alternative use of the land, not compatible with the area zoning plan, would be preferable or desirable. An oral hearing would only have been useful for the purpose of examining the latter question. It appears that the applicant has meanwhile lost all her land as it had been sold at a judicial sale (Zwangsversteigerung) in enforcement proceedings ordered against the applicant. B. Relevant domestic law Land planning in Austria is divided into regional and local zones (überörtliche und örtliche Raumordnung). In the present case the land planning at issue was governed by the Planning Act (Raumplanungsgesetz) of the Land of Vorarlberg. In order to achieve the aims of the regional land planning laid down in Section 2 of the Planning Act, the Vorarlberg Regional Government (Landesregierung) issues regional land plans (Landesraumpläne) (Section 7). According to Section 2 of the Planning Act, the area zoning plan has to pursue, inter alia, the following objectives: - to protect the environment, in particular to avoid negative repercussions on the environment and to preserve the countryside; - to maintain and to improve good conditions for agriculture and forestry; and to preserve and to further the development of adequate health and tourist resorts. The local land planning is carried out by the communities which issue area zoning plans (Flächenwidmungspläne) that designate the land as building areas (Bauflächen), possible future building areas (Bauerwartungsflächen), undeveloped areas (Freiflächen), traffic areas (Verkehrsflächen) and reserved areas (Vorbehaltsflächen). Both the regional land plans and the area zoning plans are Ordinances (Verordnungen). The owners of affected land are neither parties to the planning proceedings nor do they have a right to request a change or an exemption in plan designations. Section 34 of the Planning Act, insofar as relevant, reads as follows: “(1) Parcels of land may only be divided with the consent of the municipal executive committee. (2) Such permission is to be refused, if the partition (a) does not comply with the area zoning plan, the building plan or the objectives listed under Section 2, ... (c) divides the plot of land for no pertinent reason, (d) leads to a situation in breach of the building law in relation to any existing buildings, (e) results in new parcels of land which can no longer be exploited in a reasonable manner. (3) Permission shall be granted if no grounds for its refusal under paragraph 2 exist.”
| 0
|
train
|
001-104490
|
ENG
|
DEU
|
CHAMBER
| 2,011
|
CASE OF JENDROWIAK v. GERMANY
| 3
|
Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
|
5. The applicant was born in 1953. When lodging his application, he was detained in Bruchsal Prison. He has been released on 28 August 2009. 6. Since 1972 the applicant has been convicted of five counts of rape and two counts of attempted rape of women aged between sixteen and nineteen and has been sentenced three times to terms of imprisonment. Between May 1976 and his arrest in 1989 he spent only some eight and a half months outside prison. 7. On 23 May 1990 the Heilbronn Regional Court convicted the applicant of attempted sexual coercion. It sentenced him to three years' imprisonment and ordered his placement in preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 22-23 below). The Regional Court found that in October 1989 the applicant, returning to methods similar to those he had used to commit some of his previous offences, had simulated a breakdown of his car and had asked a twentythree-year-old woman to help him restart it. He had then attempted to force his victim to submit herself to sexual acts, but she had managed to escape. The preventive detention of the applicant, who had acted with full criminal responsibility, was necessary as he had a tendency to commit serious sexual offences in order to humiliate and abuse women and was thus likely to reoffend. 8. The applicant served his full prison sentence. He was then placed in preventive detention, for the first time, on 24 October 1992; he had thus served ten years in preventive detention by 23 October 2002. 9. The continuation of the applicant's preventive detention was ordered by the Karlsruhe Regional Court at regular intervals. 10. On 15 October 2002 the Karlsruhe Regional Court, sitting as a chamber responsible for the execution of sentences, having heard the applicant, his counsel and a psychiatric expert, W., in person, ordered the applicant's preventive detention to continue pursuant to Article 67d § 3 of the Criminal Code (see paragraph 25 below). It found that there was still a risk that the applicant, owing to his criminal tendencies, might commit serious sexual offences if released resulting in considerable psychological or physical harm to the victims. 11. The Regional Court subscribed to the opinion given by expert W. in his report of 3 October 2002. The expert, who had to give his view on the basis of the case file as the applicant had refused to make any submissions to him, had concluded that there was nothing to indicate that the applicant, who had committed numerous sexual offences and suffered from a personality disorder, had changed. He was therefore likely to reoffend if released. 12. The Regional Court further found that neither the applicant's personal situation nor his attitude had changed since its last decision. As had also been confirmed by expert W., without submitting himself to a therapeutic treatment, notably to a social therapy, which the applicant kept refusing to do, the conditions for suspending the applicant's preventive detention on probation could not be met. 13. Contrary to the applicant's view, the Regional Court further considered that Article 67d of the Criminal Code, as amended in 1998 (see paragraph 25 below), was constitutional. 14. On 21 November 2002 the Karlsruhe Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant's appeal. 15. On 13 December 2002 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He complained about the decision to prolong his preventive detention on completion of ten years of placement on the basis of the amended Article 67d § 3 of the Criminal Code, which had entered into force after he had committed his offence. He argued that the decision violated the prohibition of retrospective punishment under the Basic Law, the prohibition of retrospective legislation enshrined in the rule of law and his right to liberty. That decision further breached the principle of proportionality in that the courts responsible for the execution of sentences had made his release dependent on the completion of a social therapy lasting five to seven years, which would unduly prolong his preventive detention. 16. On 22 March 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 2027/02). It found that the applicant's complaint was ill-founded. Referring to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court), it stated that the provisions on which the applicant's continued preventive detention was based, Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended in January 1998 (see paragraph 25 below), were constitutional. 17. Moreover, in the Federal Constitutional Court's view, the criminal courts had not applied these provisions to the applicant in a disproportionate manner. There were notably no objections under constitutional law to considering the total absence of a necessary therapy to be a negative factor in the assessment of whether the applicant was likely to reoffend. 18. In 2004 the applicant was diagnosed with cancer of the lymph nodes and subsequently with cancer of the eyes. 19. On 11 July 2005 and on 1 October 2007 the Karlsruhe Regional Court ordered the continuation of the applicant's preventive detention. 20. On 29 April 2009 the Karlsruhe Regional Court, sitting as a chamber responsible for the execution of sentences, decided to suspend the further execution of the applicant's preventive detention on probation as from 31 August 2009 and ordered the supervision of his conduct. Having consulted a medical expert, it considered that there were justifiable reasons for testing whether the applicant could be released without committing further unlawful acts. It noted that the applicant had persistently refused to make a social (group) therapy, considered most suitable by all medical experts consulted, but had at least made an individual therapy with an external psychotherapist. The applicant was released from preventive detention on 28 August 2009. 21. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows: 22. The sentencing court may, at the time of the offender's conviction, order his preventive detention, a so-called measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 23. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 24. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3). 25. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
| 1
|
train
|
001-90581
|
ENG
|
FIN
|
CHAMBER
| 2,009
|
CASE OF SORVISTO v. FINLAND
| 3
|
Remainder inadmissible;Violations of Art. 6-1;Violations of Art. 13;Violation of Art. 8;Non-pecuniary damage - award
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant was born in 1959 and lives in Espoo. 6. On 2 February 1995 the applicant, a member of the board of a wound-up company (“V.”), was detained on suspicion of involvement in offences of aggravated fraud, debtor dishonesty and false book-keeping, allegedly committed in 1991 and 1992, before the winding up of V. 7. The criminal proceedings against his four co-defendants began on 18 April 1996 before the Salo District Court (käräjäoikeus, tingsrätten). The charges were served on the applicant on 6 May 1996 and 16 December 1996, respectively, and the trial against him apparently began on 19 March 1997. 8. On 21 March 2006 the District Court gave its judgment. It convicted the applicant of aggravated fraud. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it would reduce the applicant’s sentence by half, owing to the breach of the “reasonable time” requirement. It sentenced the applicant to 18 months’ imprisonment. 9. The applicant and his co-defendants appealed to the Turku Appeal Court (hovioikeus, hovrätten). 10. One of the applicant’s co-defendants requested that the Appeal Court terminate the proceedings immediately in his respect and dismiss all charges against him. He based his request on the European Court’s judgment of 9 January 2007 in the case Uoti v. Finland (application no. 61222/00), in which the Court found a violation of Article 6 § 1 of the Convention due to the excessive length of proceedings. 11. On 16 January 2007 the Appeal Court rejected this request. The court found that the European Court had not requested in its judgment that the proceedings be terminated. 12. On 22 October 2007 the Appeal Court gave its judgment. It found that, taking into account the applicant’s previous conviction, the applicant should have been sentenced to imprisonment of three years and three months. However, due to the excessive length, this sentence should be mitigated and the redress had to be more significant than that granted by the District Court. The Appeal Court mitigated the applicant’s sentence by two-thirds owing to the breach of the “reasonable time” requirement and sentenced him to 13 months’ imprisonment. 13. The applicant and his co-defendants appealed to the Supreme Court (korkein oikeus, högsta domstolen). 14. On 22 May 2008 the Supreme Court refused leave to appeal. 15. On 29 June 1994 the bankruptcy estate of V. lodged claims for damages against the applicant and three other persons with the Helsinki District Court. 16. The court informed the applicant three times, the first being on 29 January 1996, that the case had been adjourned in anticipation of the outcome of the criminal proceedings pending before the Salo District Court (see above), which was based on the same facts as the civil proceedings. On 7 October 1999 and 2 June 2000 it issued decisions to the same effect. 17. The applicant objected and requested that the civil proceedings be continued. He also requested that the claims be dismissed because the length of the proceedings had already exceeded a reasonable time. On 1 April 2003 the court rejected his request. It stated that the length of the proceedings was due to the need to await the outcome of the pending criminal proceedings, and adjourned the case. 18. The applicant complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 22 June 2005 the Deputy Parliamentary Ombudsman found that the domestic legislation did not provide a possibility for the Finnish courts to dismiss civil claims because of the length of proceedings. The applicable domestic law and practice were unsatisfactory, also in the light of Article 13 of the Convention. However, as the instant case was pending before the domestic court and the European Court, he could not rule on the complaint. 19. On 5 January 2007 the applicant renewed his request to the District Court that the claims be dismissed, arguing that during the pre-trial investigation the plaintiff’s (V.’s) lawyer had seen and read legally privileged documents which could not be used as evidence against him. He also maintained that the proceedings had exceeded a reasonable time. 20. The plaintiff objected. It gave an assurance that it would not use any privileged information in the forthcoming trial. It further stated that the appellate court would deliver its judgment in the criminal proceedings in August or September 2007. If the first-instance court’s judgment were upheld, there would be no grounds for continuing the civil proceedings against the applicant. 21. On 1 March 2007 the District Court rejected the applicant’s request. It noted the plaintiff’s submission that no prohibited privileged material would be used in the trial. Furthermore, the criminal proceedings were the main proceedings and consequently, in order to avoid unnecessary trial costs, the civil proceedings should only be resumed once the criminal proceedings had come to an end. 22. By a letter of 11 June 2008, the plaintiff in the civil proceedings withdrew its action. The case was expected to be pending for a few weeks more as the District Court needed to decide on the costs and expenses. 23. On 17 May 1999 the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen, “the police”) conducted a search of a storage facility, situated in Helsinki and rented by Mr O. The search was based on the suspicion that the applicant had not declared all his assets in debt recovery proceedings. The police seized a large number of documents belonging to some private persons, including, inter alia, correspondence between the applicant and his Spanish lawyer, C. 24. The applicant requested the Vantaa District Court to annul the seizure on grounds of its unlawfulness, since the documents seized contained privileged information between him and his lawyer. On 24 March 1999 the court upheld the seizure. It found that the material seized contained documents which were protected by legal professional privilege under Chapter 17, Article 23 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Consequently, such documents could not be seized from the applicant’s or his lawyer’s possession. The court, however, went on to find that in the instant case the seized documents were not “in the possession” of the applicant or his lawyer within the meaning of Chapter 4, section 2, subsection 2, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen) as they had been stored in a storage facility together with other persons’ belongings. The seizure had therefore been lawful. 25. The applicant appealed to the Helsinki Appeal Court, claiming that the Coercive Measures Act had been interpreted in a manner that contradicted the Convention, given that he had sole authority over the seized documents. They were thus “in his possession” and had only been stored in the storage facility. 26. On 14 January 2000 the Appeal Court revoked the seizure in so far as it concerned the correspondence between the applicant and C. and ordered the documents to be returned to the applicant. It held that the correspondence had not been in the possession of a third party and was therefore protected by legal professional privilege. In its view, the domestic legislation had to be interpreted in the applicant’s favour. 27. On 24 March 2000 the Supreme Court refused the police leave to appeal. 28. Consequently, the police requested the District Court to prolong the seizure until 17 May 2000. In their view, the correspondence between the applicant and C. was not privileged material which had been drafted for the applicant’s defence in a pending trial but concerned his possessions abroad, thus falling outside legal professional privilege. 29. The District Court disagreed. In its decision of 3 April 2000, it held that the correspondence might have contained legally privileged information. Thus it was, as a whole, subject to a prohibition on seizure. 30. Upon the applicant’s request, the bailiff ordered the police to return the documents. The documents were to be stored in the bailiff’s office until the decision on seizure had acquired legal force. 31. The police appealed to the Appeal Court, maintaining that the seized documents did not concern legally privileged information that the applicant had passed to C. for the purpose of pleading a case before a trial. In addition C. was not, at the time, the applicant’s defence lawyer. 32. On 25 May 2000 the Appeal Court upheld the decision. 33. Having granted interim measures, the Supreme Court granted the police leave to appeal on 8 August 2000. By decision of 9 April 2001 it quashed the Appeal Court’s decision of 25 May 2000, finding that the revocation of the seizure had already acquired legal force on 24 March 2000 when the Supreme Court had refused leave to appeal. On that date the seizure was revoked and the documents were to be returned to the applicant. Consequently, it would not have been possible, even in theory, to prolong the seizure after that date. The court did not address the issue of whether the documents seized concerned legally privileged material. It also declined to examine the police’s request to prolong the time-limit for prosecution as such a request should have been filed with the District Court. 34. On 30 May 2001 the police again seized the same documents on the basis that they could be used as evidence in forthcoming criminal proceedings against the applicant. 35. On 24 July 2001 the police requested the District Court to prolong the time-limit for bringing charges against the applicant and for the seizure of the documents, as they had not been allowed to examine the content of the seized documents due to the pending complaints concerning their allegedly privileged nature. The applicant objected, claiming that the police should not have seized the same documents twice. He further maintained that the material was privileged and could not be seized. In his view, the seizure was in breach of Article 8 of the Convention. 36. The District Court revoked the seizure on 10 August 2001, referring to the Appeal Court’s decision of 14 January 2000 and finding that legal privilege applied to the correspondence. 37. The police appealed to the Appeal Court, renewing their argument that the documents seized did not concern information which the applicant had passed to C. for the purpose of pleading a case before a trial, and which, for that reason, could be covered by legal professional privilege. 38. On 21 May 2002 the Appeal Court upheld the decision, rejecting the police’s appeal. 39. Having granted the police leave to appeal, the Supreme Court quashed the decision by nine votes to two on 5 December 2003. The decision became a precedent (no. KKO 2003:119). The majority found that the main issue in the proceedings was whether counsel’s right not to testify against his client and the consequent prohibition on seizure extended also to material passing between a client and his lawyer if that material did not relate to a pending or forthcoming trial. They found the domestic legislation in this respect somewhat open to interpretation but concluded, having assessed the Court’s case-law, that as the seized documents did not concern information which the applicant had given to his lawyer in order to assist him in a trial, they could have been subject to seizure. Two of the Justices dissented, finding that the seizure had interfered with the applicant’s fundamental rights. However, the applicable domestic legislation was not clear and unambiguous, and therefore it should have been applied with due regard to fundamental rights and the requirements of legal professional privilege. The dissenting Justices interpreted the domestic law to the effect that the correspondence between the applicant and C. was covered by the prohibition on seizure. 40. The documents seized were returned to the police and it appears that the seizure was prolonged a number of times until summer 2005. 41. On 6 July 2006 the criminal proceedings started in the Vantaa District Court. On 23 August 2006 the charges, three counts of aggravated debtor fraud, were served on the applicant. On 25 August 2006 the District Court dismissed the first count as it was already statute-barred. This decision was upheld by the Appeal Court on 19 October 2006 and by the Supreme Court on 24 October 2007. 42. On 23 April 2008 the District Court convicted the applicant on two counts of aggravated debtor fraud and sentenced him to a six-month term of imprisonment. The court found that the pre-trial investigation had been excessively long in the applicant’s case. The applicant would have been sentenced to 18 months’ imprisonment but as he had already been sentenced to imprisonment on 29 November 2006 and on 22 October 2007, his sentence was mitigated by twelve months. 43. The applicant and the public prosecutor appealed to the Appeal Court where the case is apparently still pending. 44. Chapter 6, Article 7, point 3, of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads: “In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are ... (3) a considerably long period that has passed since the commission of the offence; if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.” 45. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, Article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings. 46. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, Article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment. 47. According to Chapter 5, section 1, of the Coercive Measures Act (Act No. 450/1987, as in force at the relevant time), the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. The search warrant is issued by the police themselves. 48. Chapter 4, section 2, subsection 2, of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2, of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen; Act No. 449/1987), a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 49. Under Chapter 17, Article 23, subsection 1, of the Code of Judicial Procedure, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years’ imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused. 50. Under section 5c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, Article 1 or 2, of the Penal Code, unless the law provides for a more severe punishment on another count. 51. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be entered in the records of investigation. As regards other evidence, any police officer is under an obligation to respect the confidentiality requirement. 52. The Supreme Court issued on 5 December 2003 a precedent on the interpretation of Chapter 17, Article 23, of the Code of Judicial Procedure (KKO 2003:119, no. 3010, votes 9–2). The decision concerned specifically the course of events in the present case. According to the decision of the Supreme Court, the documents seized from the applicant, related to the commission relationship between himself and his Spanish legal counsel, did not contain information entrusted by the applicant to his legal counsel for the pursuit of a case as referred to in Chapter 17, Article 23, subsections 1 and 4, of the Code of Judicial Procedure. Therefore, there was no obstacle to seizing the documents from the applicant. The Supreme Court ruled on the case by nine votes to two, sitting as an enlarged chamber presided by the President of the Court. 53. The Supreme Court reiterated this position in its other precedent case, KKO 2003:137. 54. Recommendation Rec(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”
| 1
|
train
|
001-22148
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,002
|
UNISON v. THE UNITED KINGDOM
| 1
|
Inadmissible
|
Georg Ress;Nicolas Bratza
|
The applicant is a trade union, with its registered address in London. It is represented before the Court by Mr J. Clinch, the applicant’s legal officer. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a union for public service employees. It has members employed with the University College Hospital (UCLH), which is a National Health Service (“NHS”) Trust. A substantial proportion of its members at UCLH are employed on terms and conditions of employment negotiated, primarily, at a national level and the applicant plays a leading role in those national negotiations. Collective negotiations on terms and conditions for most staff so employed within the NHS take place within the framework of the so-called “Whitley Councils”. There is a General Council which agrees terms and conditions common to all staff groups, for example, on redundancy, equal opportunities, maternity rights and joint consultation machinery and ten other specialist councils dealing with particular jobs or professions. Each Council is composed of an equal number of employer-side staff and staff-side employees. The applicant inter alia provides the employee-side secretariat of the General Whitley Council which means that it plays the leading role in co-ordinating staff-side policy within the General Council negotiations and in representing employees at those negotiations. During 1998, UCLH was negotiating to transfer a part or parts of its business to a transferee consortium of private companies, under a mechanism known as Private Finance Initiative, whereby the private companies would erect and run for UCLH a new hospital (the “primary transfer”). The consortium would subsequently transfer parts of the business transferred to it by UCLH to other private transferee companies (secondary transfers). Thereafter, there would be yet further transfers to private companies (tertiary and subsequent transfers). At all stages there was to be subcontracting out of parts of the work by transferee companies to specialist companies. The primary transfer and secondary transfers would involve most but not all the employees of UCLH being transferred to one or more of the transferee companies. The applicant sought protection of its members for the terms and conditions of employment and collective bargaining arrangements, aiming to secure a collective agreement with UCLH by which the latter would impose on the transferees terms that would guarantee for thirty years that the terms and conditions of employment and the collective bargaining arrangements of those who would be employed by the primary and subsequent transferees would remain the same as or equivalent to those which would remain for existing employees who were not transferred from UCLH. UCLH refused the request or to offer any protection of existing terms and conditions beyond those guaranteed as a minimum by law. The applicant put a question to its members in the statutorily required pre-strike ballot, asking whether they were prepared to take industrial action in support of the trade union’s demands for a guarantee. The ballot paper stated: “The union has requested a guarantee that the terms, conditions and benefits enjoyed by UCLH staff to be transferred to the new employer, and also staff, subsequently employed and subcontracted staff remain the same (or at least as favourable as), and governed by the same collective bargaining arrangement as HNS, UCLH Trust staff. The UCLH Trust has not agreed to give this guarantee by making it part of the contract with the new employers or by making it part of individual contracts of employment. The union is therefore in dispute with the UCLH NHS Trust. Are you prepared to take strike action in support of the request for the guarantee described above?” On 2 September 1998, it was announced that members had voted overwhelmingly to take strike action. The applicant called for the strike to take place on 21 September 1998. On 7 September 1998, UCLH brought proceedings applying for an injunction to prevent the strike taking place. On 17 September 1998, the High Court ordered interlocutory injunctive relief in favour of UCLH, finding that the strike did not attract the protection of section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act). On 13 October 1998, the Court of Appeal dismissed the applicant’s appeal, upheld the injunction and ordered costs against the applicant. It refused leave to appeal to the House of Lords. In its judgment, as summarised by the applicant, it was found: (i) that there was no dispute wholly or mainly related to current terms and conditions but instead a dispute about future terms and conditions with an unidentified future employer (Section 244 of the 1992 Act did not extend to such a dispute); (ii) the inclusion of future employees and sub-contracted employees in the demand for protection took the dispute outside section 244 of the 1992 Act; (iii) even if the dispute was mainly about statutorily permitted matters and between statutorily permitted parties, the ballot paper before the strike must be restricted wholly to statutorily permitted issues to be valid. In his judgment in the Court of Appeal, Lord Woolf M.R. noted that the applicant’s counsel had accepted that the arrangement which the applicant had sought to achieve would have been difficult to enforce in any event, though considered that the applicant could claim that the guarantee could have been of benefit to its members. While counsel had also conceded that any strike of hospital staff would, regrettably, have had an impact on persons being treated in the hospital, he held that the possible adverse consequences of a strike was not relevant to the court’s decision on the legal issue before it. On 26 April 1999, the House of Lords rejected the applicant’s petition for leave to appeal. The applicant withdrew the strike call to avoid acting unlawfully and being found liable for damages. A strike by employees involves breaches of their respective contracts of employment. Calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing the breach of contracts of the employees concerned. Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute”. Statutory protection is lost and the trade union is necessarily acting unlawfully if the strike it calls is in contemplation or furtherance of something which does not fall within the statutory definition of a “trade dispute”. The term “trade dispute” is defined by section 244 of the 1992 Act which provides as relevant: “(1) In this Part, ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following - (a) terms and conditions of employment or the physical conditions in which any workers are required to work; (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers; (c) the allocation of work or the duties or employment between workers or groups of workers; (d) matters of discipline; (e) a worker’s membership or non-membership of a trade union; (f) facilities for officials of trade unions; and (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of procedures.” Pursuant to The Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1081/1974), protection is provided to workers on (most) transfers of undertakings (these regulations implemented Council Directive No. 77/187/EEC). By regulation 5, a contract of employment of employees employed in an undertaking immediately before a relevant transfer are saved from automatic termination and “shall have effect after the transfer as if originally made between the person so employed and the transferee.” All rights, powers, duties and liabilities of the transferor are deemed to pass to the transferee (reg. 5(2)(a)), hence the transferee comes under an obligation to respect the terms and conditions of employment which have been agreed by the transferor. By virtue of reg. 5, employees whose contractual terms prior to transfer are expressly subject to collective negotiation, will continue to be subject to that collective negotiation following transfer, even if their new employer is not party to those negotiations (e.g. Whent and others v. T Cartledge Ltd [1997] IRLR 153(EAT)). Pursuant to reg. 6 of TUPE, the effect of any collective agreement made between a transferor employer and a trade union is preserved, and the agreement treated as if it had been made between the trade union and the new transferee employer. Recognition of a trade union by a transferor, whether for collective bargaining purposes or otherwise also binds a transferee where the undertaking transferred maintains an identity distinct from the remainder of the transferee’s undertaking (reg. 9). Pursuant to reg. 8(1), of TUPE, an employee who is dismissed because of a transfer or for a reason connected with it is deemed to have been unfairly dismissed, giving an automatic guaranteed claim for compensation and/or re-instatement or re-engagement under s. 94 of the Employment Rights Act 1996 (“ERA”). This is subject to the exception where the employee has been dismissed for “an economic, technical or organisational reason entailing changes in the work force” in which case the dismissal is not automatically unfair – reg. 8(2). Such dismissal may nevertheless be found unfair by an Employment Tribunal applying the ordinary principles set out in s. 98 of ERA. A dismissal may occur at the instigation of an employer or where an employee resigns having apprehended that there is to be, or has been, a fundamental breach of contracts by the employer or a substantial change of working conditions to his detriment (e.g. Rossiter v. Pendragon PLC [2001] IRLR 256). A proposal by an employer to effect a transfer also gives rise to an obligation to consult “appropriate representatives” of affected employees about, inter alia, the date of the transfer and the reasons for it, its legal, economic and social implications for affected employees, and the measures, if any which will be taken by the transferor and/or transferee employers in relation to those employees (reg. 10(2)). The appropriate representatives include representatives of a recognised trade union. Any reduction in wages paid by an employer must, with certain limited exceptions, be agreed in writing. If there is no written agreement, the employee will have a claim to the Employment Tribunal for unlawful deduction of wages under ss. 13-23 ERA. Any reduction in wages or downgrading in other terms or conditions which is not agreed will give rise to a claim for breach of contract of employment in the ordinary courts, or, if employment has ended, in the ordinary courts or in the Employment Tribunal. If an employee is dismissed for failing to agree to a change in contractual terms and conditions, he may bring a claim for unfair dismissal pursuant to s. 94 ERA. A claim for unfair dismissal may also be brought by an employee who resigns following a significant change to contractual terms and conditions (s. 95(1)(c) ERA). An employee dissatisfied with changes to terms and conditions may remain in his job and claim unfair dismissal, seeking compensation for the financial shortfall between the new terms and former terms of employment. Pursuant to TUPE, recognition of trade union and collective agreements would automatically transfer to transferee employers (regs. 6 and 9). Where following transfer a transferee company wished to terminate recognition of a trade union, domestic law provides a mechanism whereby such employers may be compelled to engage in collective bargaining on certain matters. Section 1 of the Employment Relations Act 1999 adds a new Schedule 1A to the 1992 Act, under which employers and trade unions are encouraged to agree upon recognition for collective bargaining and upon the consequences which should flow from recognition. In the absence of agreement, unions may, in certain circumstances, apply to the Central Arbitration Committee in order to secure compulsory recognition for the purposes of collective bargaining on pay, working hours and holidays. Certain conditions must be met if compulsory recognition is to be ordered, principally that the trade union can claim a minimum level of support amongst the workers it wishes to represent in collective bargaining (paragraphs 22 and 29(3) of the Schedule) and that no other trade union is already recognised as representing any of those workers (paragraph 35). The Schedule came into force on 6 June 2000.
| 0
|
train
|
001-86820
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,008
|
KOPALIN v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
The applicant, Mr Konstantin Valentinovich Kopalin, is a Russian national who was born in 1972 and lives in Arkhangelsk. He was represented before the Court by Mr I. Telyatyev, a lawyer practising in Аrkhangelsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, the 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. As a seaman serving in the Extreme North, the applicant was entitled to a reimbursement of his holiday travel expenses. His employer, a State meteorological enterprise, had defaulted on this obligation, and the applicant had to apply to a court. On 20 February 2002 the Solombalskiy District Court of Arkhangelsk held for the applicant and awarded him 9,088.03 Russian roubles. On 21 March 2002 the enterprise paid this award to the applicant. In separate proceedings, the applicant’s trade union tried to bring a civil action on the applicant’s behalf. Domestic courts found that the trade union had no authority to represent the applicant. The final decision in this regard was given by the Arkhangelsk Regional Court on 16 April 2001. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
| 0
|
train
|
001-5526
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,000
|
BLOKKER v. THE NETHERLANDS
| 3
|
Inadmissible
|
Elisabeth Palm
|
The applicant is a Dutch national, born in 1943 and living in Haarlem. He is represented before the Court by Mr J. Koekoek, a lawyer practising in Haarlem. A. On 7 April 1997, while driving a car, the applicant was stopped by the police for an alcohol test. A breath test taken from him disclosed an alcohol level of 655 μg/l. As this was higher than 220 μg/l, the statutory maximum level, the police confiscated (invordering) his driving licence. On 10 April 1997, the applicant was informed by the public prosecutor at the Haarlem Regional Court (Arrondissementsrechtbank) that his driving licence would remain confiscated for a period of nine months. On 21 April 1997, the applicant filed an objection (bezwaarschrift) with the Haarlem Regional Court against the public prosecutor’s decision to confiscate his driving licence. In this objection, the applicant mentioned having paid a fine in 1995 for drunken driving and explained that he needed his driving licence for professional reasons. He further explained that, on 7 April 1997, he had consumed more alcohol than legally allowed for driving as he had been under a great emotional stress caused by private circumstances. In his opinion, to deprive him of his driving licence for such a lengthy period was disproportionate in that it would not only affect his own professional activities, but also those of the persons working for him. By summons of 22 April 1997, the applicant was ordered to appear on 21 May 1997 before the Magistrate (politierechter) of the Haarlem Regional Court on charges of drunken driving. On 21 May 1997, the Magistrate convicted the applicant of drunken driving. The applicant was sentenced to payment of a fine of NLG. 2,500 and disqualification for driving for a period of six months (ontzegging rijbevoegdheid). The disqualification for driving was suspended pending a probation period of two years. The applicant did not file an appeal against this judgment. Also on 21 May 1997, the Haarlem Regional Court determined the applicant’s objection of 21 April 1997. It held that, although the public prosecutor’s decision of 10 April 1997 could not be regarded as unreasonable, the applicant’s written and oral submissions disclosed reasons for ordering that the confiscated driving licence be returned to the applicant and, consequently, issued an order to this effect. By letter of 27 May 1997 the applicant was informed that, following information provided by the police on 7 April 1997, the Minister of Transport, Public Works and Water Management (Minister van Verkeer en Waterstaat; hereinafter “the Minister”) had decided that the applicant should be subjected to an Educational Measure Alcohol and Traffic (Educatieve Maatregel Alcohol en Verkeer; hereinafter “EMA”). He was further informed that the costs of this measure, i.e. NLG. 500, were to be paid by himself. He was warned that a failure to co-operate in respect of the EMA would result in declaring his driving licence invalid. The applicant’s objection (bezwaar) against the decision of 27 May 1997 was rejected by the Minister. The applicant was informed of this by letter of 15 October 1997. The applicant filed an appeal against this rejection with the Haarlem Regional Court, which was rejected by the President of this court by judgment of 27 January 1998. The applicant filed an appeal against the judgment of 27 January 1998 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). Relying on Article 6 of the Convention under its criminal head, he argued that the imposition of the EMA constituted a double punishment or punitive measure since the criminal court had already dealt with his case. He further complained that, as his driving licence had already been returned to him, the imposition of the EMA constituted undue hardship. He further complained of unequal treatment as persons in whom a higher alcohol percentage is found are not subject to an EMA imposition, but are subjected to a medical examination. In its decision of 29 April 1998, the President of the Administrative Jurisdiction Division rejected the applicant’s appeal. Insofar as relevant, the President of the Administrative Jurisdiction Division held: <Translation> “The President [of the Regional Court] has justly considered that, with the fact that the appellant was found to have an alcohol level of 655 μg/l, the requirements set out in the relevant rules for imposing the Educational Measure have been fulfilled. The circumstance that the criminal court, at the time of the imposition of the Educational Measure, had already taken a decision as to the confiscation of the appellant’s driving licence does not alter this, as the confiscation under criminal law of the driving licence on grounds of Article 164 of the 1994 Road and Traffic Act (Wegenverkeerswet) concerns a wholly different procedure than the administrative law measure of imposing the obligation to comply with an Educational Measure. The legislator does not exclude that, in addition to dealing with an offence involving alcohol under criminal law, an administrative law measure is imposed like the obligation to comply with an Educational Measure. ... A connection between the criminal and administrative procedures in the Road and Traffic Act, as the appellant apparently wants to make, has not been intended by the legislator. The circumstance that the criminal procedure apparently has ended prior to the administrative law procedure, therefore, has no consequences for the imposition of the Educational Measure. The President shares the opinion of the president <of the Regional Court> that imposing on the appellant the obligation to subject himself to an Educational Measure cannot be regarded as a “criminal charge” within the meaning of Article 6 of the Convention. The qualification given by the legislator to the measure, the aim the measure pursues, the nature and seriousness of the measure and the lacking of a punitive character of the measure make that it does not concern a punishment or sanction as argued by the appellant. As to the appellant’s argument that the regulation results in an unequal treatment of motorised vehicle drivers having consumed alcohol, the President subscribes in the first place to the finding of the president <of the Regional Court> that it does not concern similar cases. Motorised vehicle drivers, with whom at the time when they are stopped <by the police> a breath alcohol level higher than 915 μg/l is found are not in a similar situation that drivers with whom an alcohol level between 570 μg/l and 915 μg/l is found. Like the president <of the Regional Court>, the President finds no basis for the correctness of the appellant’s contention that persons having driven a car with a considerable higher alcohol percentage receive a less severe treatment that persons like him. In this connection, the President points to the possibility, as mentioned by the president [of the Regional Court], of suspending the validity of the driving licence of persons falling in the “heavier category”. Furthermore, unlike persons falling in the “heavier category”, the applicant will not be confronted with an examination of his driving ability or suitability with, as a possible result, a declaration of invalidity of his driving licence.” B. Relevant domestic law and practice Where suspicion arises as to the driving ability or the physical or mental suitability to drive of a holder of a driving licence, the police or other public officials as designated by an Order in Council (Algemene Maatregel van Bestuur) are obliged, under Article 130 § 1 of the 1994 Road and Traffic Act (Wegenverkeerswet), to report this in writing to the Minister of Transport, Public Works and Water Management (“the Minister”). Under Article 131 § 1 of the 1994 Roads and Traffic Act, the Minister may order, in case the information transmitted gives reason for doing so, that the driving licence holder concerned must be subjected to an investigation of his or her driving ability or suitability. In case the results of such an investigation are unsatisfactory, the Minister may declare the driving licence of the person concerned invalid. Under Article 131 § 5 of the 1994 Road and Traffic Act, the Minister may decide, where the Minister finds that the information transmitted does not disclose a need for an investigation of the driving ability or suitability, to subject the driving licence holder concerned to an Educational Measure. Pursuant to Article 132 § 1 of the Road and Traffic Act, the person in respect of whom it has been decided to impose an Educational Measure is obliged to co-operate in the execution of the Educational Measure. According to Article 132 § 2 of the Road and Traffic Act the Minister, in case of failure of co-operation of the person concerned, shall immediately decide to declare invalid (ongeldigheidsverklaring) the driving licence held by that person. Article 8 §§ 1 and 2 of the Regulation measures driving ability and suitability (Regeling maatregelen rijvaardigheid en geschiktheid), published in the Official Gazette (Staatscourant) 1996, nr. 183, provides that the Minister shall impose an Educational Measure Alcohol and Traffic (“EMA”) where: - it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 570 μg/l or 1.3‰ and not higher than, respectively, 915 μg/l or 2.1‰; or - it has been found that the person concerned had a breath or blood alcohol level higher than, respectively, 350 μg/l or 0.8‰ whereas the person concerned, within a previous period of five years has been stopped <by the police> on suspicion of driving under the influence of alcohol or another substance of which the person concerns knows or should know that it affects the ability to drive. According to Article 10 of the Regulation measures driving ability and aptitude, the costs of an Educational Measure are to be borne by the person concerned. An EMA consists of teaching sessions, given by a teacher of the Centre for Alcohol and Drugs, about the risks of driving under influence. The total duration of an EMA is three full days (one day per week) and it is finished by an individual evaluation lasting about 1½ hours on the fourth day. The teacher will transmit a report to the Minister on his or her findings as to the participation of the person concerned in the EMA. On the basis of these findings, the Minister will decide whether or not the driving licence of the person concerned is to be declared invalid. A person subjected to an Educational Measure may file an objection with the Minister against that decision. An appeal against the Minister’s decision on such an objection lies with the Administrative Jurisdiction Division of the Council of State. Only the Minister is competent to order the imposition of an EMA. Consequently, it cannot be imposed by a criminal court judge as part of a sentence in cases where a person has been convicted of a traffic offence. Under Article 179 of the Road and Traffic Act, a criminal court may - after having convicted a driver of, inter alia, drunken driving - impose as a secondary penalty (bijkomende straf) disqualification for driving for a maximum period of five years. In case the conviction of, inter alia, drunken driving is the second one during a period of five years, the disqualification can be ordered for a maximum period of ten years.
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train
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001-99210
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ENG
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RUS
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CHAMBER
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CASE OF SHARKUNOV AND MEZENTSEV v. RUSSIA
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Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - award
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Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
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4. The applicants were born in 1969 and 1971 respectively. They are serving their prison sentences in the Kurgan Region. 5. On 5 May 1999 the first applicant (Mr Sharkunov) was brought to the Organised Crime Unit of the Kurgan Regional Department of the Interior in the town of Shadrinsk. He was suspected of a Mr M.'s murder. As can be seen from the arrest report drawn up at 2.25 a.m. on 6 May 1999, the applicant's family and next of kin were not informed. According to the applicant, the police officers placed a canvas bag on his head, beat him and administered electric shocks with the purpose of extracting a confession from him. The applicant made no confessions. 6. During the same night, from 2.35 to 3.15 a.m., the first applicant was brought before investigator P. The record of interview contains the following pre-typed standard wording: “I have been informed that under Article 51 of the Russian Constitution, no one is required to testify against himself, his spouse or next of kin... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles 52 and 64 of the RSFSR Code of Criminal Procedure: A suspect has the following defence rights: to know the accusation against him; to make statements; to adduce evidence; to make requests; to have access to the records of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody; to lodge challenges and complaints against the investigator's decisions and actions; to read this record after the interview, request its amendment and to make observations, which must be included in the record. I have also been informed that under Articles 47-52 of the RSFSR Code of Criminal Procedure a suspect has a right of defence. For this investigative measure I required ___ counsel (appointed by an advocates' office; a lawyer named by me; if no counsel requested – indicate a reason...).” The applicant made a handwritten statement indicating that he did not require counsel and that he would defend himself. This note bears his signature. The record of the interview also contains another handwritten note by the applicant in the following terms: “I have been apprised of the content of Article 51 of the Constitution. For the time being I refuse to speak.” This note bears the applicant's signature. 7. On the same night a medical assistant in the local sobering-up centre carried out a medical check of the upper part of his body; no injuries were recorded. The applicant was then placed in the Shadrinsk temporary detention centre. The applicant was examined by a medical assistant and complained of “pain all over the body”. Blue bruises on the hip/thigh and blue injection marks on his arms were recorded. The medical assistant ascribed the marks to drug addiction and withdrawal symptoms. As can be seen from the applicant's written statement made on the same day, he had been horse riding the day before and had no complaints against any public official. 8. On the investigator's order, on 7 May 1999 the applicant was examined by a medical expert. The examination was carried out in the presence of two convoy officers. The report drawn up on 7 May 1999 stated that the first applicant had no physical injuries. 9. On 8 May 1999 the applicant was examined by paramedics, who concluded that he was suffering from withdrawal syndrome. On 15 May 1999 the applicant was examined in relation to abdominal pains and pain in the neck and in the thoracic spine area. It appears that he was given unspecified medicines. 10. According to the Government, the applicant had access to counsel T. on 12 May 1999, and on 14 May 1999 he was interviewed in the presence of counsel and remained represented throughout the pre-trial investigation and trial. 11. On 17 May 1999 the applicant was transferred from the temporary detention centre to a remand centre. 12. On 17 May 1999 the applicant's mother lodged a complaint with the Supervising Prosecutor's Office of the Kurgan Region and the Shadrinsk town prosecutor, alleging that her son had been ill-treated in police custody: “My son was arrested on 5 May 1999...I became aware later on that on 6 May 1999 he had been taken to section 6 of the town department of the Interior and had been severely beaten and tortured by electric shocks in order to obtain confessions... Ill-treatment continued later on...The above was confirmed by my son's former counsel D. who told me on 7 May that my son was being ill-treated. D. saw my son on 11 May and called me, asking me to bring my son clean clothes. On 12 May the lawyer told me that my son had been beaten again and had been given electric shocks... On the same day I unsuccessfully asked investigator P. to let me see my son... On 14 May the investigator told me that he would hand over the clean clothes to my son if I refused to take away the old ones, which might be needed for an expert examination... After the arrest my son named the lawyers he wanted to instruct; since they were not available the investigator should have appointed legal aid counsel instead... I was misled by the staff of the temporary detention centre about the withdrawal pains my son had allegedly been suffering from... This did not make any sense to me... On 8 May I had brought some pain killers and asked – in vain – to call for an emergency squad for my son...My son has a medullispinal hernia, which can be painful at times...” 13. The complaint was forwarded for examination by the Shadrinsk Inter-District Prosecutor's Office. A preliminary inquiry was ordered. 14. During the inquiry the medical assistant of the sobering-up centre affirmed that no injuries had been recorded and that the applicant had made no complaints or allegations on 6 May 1999 at or around 4 a.m. However, according to the on-duty officer of the temporary detention centre, on 6 May 1999 at 4 a.m. the applicant had been brought to the temporary detention centre; blue bruises and injections marks were visible on his body; the applicant explained that he had sustained the bruises while horse riding and that he was a drug addict. As can be seen from a statement issued on 20 May 1999 by the medical assistant of the temporary detention centre, on 6 May 1999 the applicant complained of pain in the body; the examination at 8 a.m. revealed blue bruises on the hip/thigh and blue injection marks on his arms; the medical assistant ascribed these to drug addiction and withdrawal symptoms. According to her statement, the applicant was also seen on 8 May 1999 for unspecified reasons, and on 15 May 1999 on account of his complaints of pain in the neck and the thoracic spine area; he had had no health-related complaints when transferred to the remand centre on 17 May 1999. 15. A number of officers made written statements. Officer E. stated that he had brought the applicant to the Unit on 6 May 1999 at or around 4 p.m; investigative measures had been taken until around 2 a.m. in the presence of investigator P.; thereafter, the applicant had been brought to the sobering-up centre for an examination and then to the temporary detention centre; he had not witnessed any ill-treatment against the applicant (see also paragraph 52 below). Officer Ba. stated that the applicant had been brought to the Unit on 5 May 1999; investigator P. had also been present while some measures were being carried out; no ill-treatment was inflicted on the applicant in the Unit and no signs of ill-treatment were visible on his body. Senior officer Ya. made a similar statement (see also paragraph 51 below) indicating that the applicant had been brought to the Unit on 5 or 6 May 1999 in the afternoon. Officer K. stated that the applicant had been present on the premises on 6 May 1999 in the afternoon and that he had seen investigator P. and officers E. and Ya. with the applicant at around 9 p.m. the same evening. Officer K. did not witness any ill-treatment. Lastly, investigator P. stated that he had issued an arrest warrant against the applicant and questioned him; no ill-treatment had been inflicted on the applicant; a medical expert had examined him on 7 May 1999 and found no injuries. 16. By a decision of 1 June 1999 the Shadrinsk Inter-District Prosecutor's Office refused to institute criminal proceedings against the officers allegedly responsible for the first applicant's ill-treatment. It was established that the applicant had been arrested on 5 May 1999 and had been brought to the Organised Crime Unit for investigative measures. Thereafter, he had been examined by a medical assistant of the sobering-up centre; no injuries had been noted. The applicant was then brought to the temporary detention centre and examined by an “on-duty” officer; the applicant explained that the bruising on his hips/thighs had been sustained before the arrest (probably from horse riding); no injuries had been found during his placement in the remand centre on 17 May 1999. In May 1999 the applicant made no complaint about his health and did not raise any allegations against any public official. Nor did he raise any allegations during the inquiry that had been initiated following his mother's complaint. 17. As can be seen from the decision of 1 June 1999, “the persons concerned should be informed of the decision and the procedure for appealing against it”. By a letter of the same date, the applicant's mother was notified of the decision and of the possibility of appealing to a higher prosecutor. 18. On an unspecified date Mr T. was appointed as counsel for the applicant. On 15 June 1999 he sought a copy of a search order in respect of the applicant's flat; he also asked the investigator to allow the applicant visits from his family. 19. A medical certificate dated 17 September 1999, issued by the local drug addiction hospital, states that the first applicant did not suffer from alcohol or drug addiction and did not require any related treatment while in detention. 20. On 21 February 2000 the first applicant complained to the Kurgan prosecutor's office supervising detention facilities about the events of 5 and 6 May 1999 and the investigation. The applicant made the following statement: “On 5 May 1999...I was interrogated in a particularly intensive manner, which I can describe if you so require. The officers tried to compel me to make confessions in respect of a criminal offence in which I was not involved and of which I knew nothing. At night investigator P. joined in. When physical violence temporarily ceased and the bag was taken off my head, investigator P. compelled me to make written statements... He told me that he had witness statements against me... For twelve days in the temporary detention centre I made statements concerning my alibi on the day of M.'s murder and the alleged animosity between myself and the above witness...” 21. By a letter of 28 February 2000 the applicant was informed that his renewed complaint had been dismissed by the Kurgan Regional Prosecutor's Office because the inquiry had already resulted in a decision not to initiate criminal proceedings in relation to the alleged ill-treatment. 22. On 6 May 2000 the applicant was interviewed in the presence of counsel, pleaded not guilty, sought a face-to-face confrontation with the second applicant and then chose to remain silent. 23. Between May and September 2000 the applicant sent several unspecified complaints from the detention facility to the Kurgan Town Court. In April 2000 the applicant's mother complained to the regional prosecutor about the inquiry into the allegation of ill-treatment. 24. On 9 December 1999 the second applicant (Mr Mezentsev) was brought to the above-mentioned Organised Crime Unit in Shadrinsk from a detention facility in the town of Kurgan. 25. According to the applicant, he remained in the police car with a canvas bag on his head and received several blows from the convoy officers. In the Unit the officers connected wires to his little fingers and applied electric shocks. When he fainted they hit him on the head so that he would regain consciousness. A canvas bag was placed over his head, restricting the airflow. He could not bear the pain and admitted his complicity in the killing of a Mr K. 26. On the same day, between 7 p.m. and midnight, the second applicant was questioned by investigator P. The record of interview contains the following pre-typed standard wording: “I have been informed that under Article 51 of the Russian Constitution, no one is required to testify against himself, his spouse or next of kin...I have also been apprised of the rights of the suspect during the preliminary investigation under Articles 52 and 64 of the RSFSR Code of Criminal Procedure: A suspect has the following defence rights: to know the accusation against him; to make statements; to adduce evidence; to make requests; to have access to the minutes of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody; to lodge challenges and complaints against the investigator's decisions and actions; to read this record after the interview, request its amendment and to make observations, which must be included in the record. I have also been informed that under Articles 47-52 of the RSFSR Code of Criminal Procedure a suspect has a right of defence. For this investigative measure I required ___ counsel (appointed by an advocates' office; a lawyer named by me; if no counsel requested – indicate a reason...).” The applicant made a handwritten statement indicating that he did not require counsel and that he was not waiving his right on account of lack of means. This note bears his signature. The record of interview also contains another handwritten note by the applicant in the following terms: “I have been apprised of the content of Article 51 of the Constitution. I agree to testify on the substance of the suspicion against me”. This note bears the applicant's signature. During this interview the applicant confessed to having been an accessory to K.'s murder, committed, according to the second applicant, by the first applicant (Mr Sharkunov). The record ended with a handwritten note stating that the second applicant had read the record, that it was correctly transcribed, that the applicant had no comment or objection to make, that he had been made aware of the video recording and had no comment to make on it. The interview was videotaped by officer Ba. 27. On 15 December 1999 the applicant was again taken to the Organised Crime Unit, where the ill-treatment, namely beating him on the head, allegedly resumed. According to the applicant, while in a cell he cut the veins in both his arms, allegedly as a protest at the beatings and pressure put on him. According to the Government, the second applicant mutilated himself because the first applicant had put pressure on him while in Shadrinsk remand centre no. 2. 28. After the second applicant had been provided with medical assistance, at an interview on the same day he was informed of his rights and pleaded innocent; he declined legal assistance “for this interview” and refused to testify. 29. On 17 December 1999 the second applicant lodged a complaint with the Regional Prosecutor's Office, alleging that he had been forced to confess to the murder and to make false accusations against other persons: “I urge you to carry out an inquiry and to stop the unlawful methods of investigation used against me by the officers of the Organised Crime Unit. As a result of these, I was forced to made confessions on 9 December 1999. I complained to the regional prosecutor's office but subsequently learnt that the complaint had not been forwarded... On 15 May 1999 I was brought to the Unit again and was forced to incriminate myself and others of various crimes. To overcome my resistance, the officers offered a visit from my family in exchange for a confession; this was a form of psychological pressure...Since I could not stand the pressure I cut my veins with a razor blade I found in the cell...” 30. On 19 January 2000 the applicant amended his statement, alleging that electric shocks had been administered on 9 December 1999; that the waiver of legal assistance had been imposed on him; that he had been told to be natural during the videotaping and to answer in line with the previously discussed version of the relevant events. 31. An inquiry was ordered in relation to the second applicant's allegation of ill-treatment. Officer E. stated that the applicant had been brought to the Organised Crime Unit for interview with investigator P.; the interview was videotaped; no ill-treatment or pressure had been used against the applicant (see also paragraph 52 below). A similar statement was made by senior officer Ya. (see also paragraph 51 below). To a statement in similar terms investigator P. added that while the applicant had not requested counsel for the interview on 15 December 1999 he had expressed the wish to have a consultation with a lawyer later on in the remand centre. Officer Ba. confirmed that he had videotaped the interview on 9 December 1999 and that he had seen no beatings. 32. The prosecutor also obtained a written statement from the applicant alleging that during his transfer to the Unit on 9 December 1999 he had a canvas bag on his head; in the Unit he had cables attached to his fingers and that electric shocks had been administered. The applicant alleged that on 15 December 1999 he had received several blows from Unit officers; that he could not identify them as he had a canvas bag on his head; and that in reply to his request for counsel investigator P. had told him to write to the local bar association. 33. On 27 January 2000 the applicant was examined by a medical expert who found scars on his forearms and concluded that these scars could have been self-inflicted on 15 December 1999. The expert did not record any traces of electric torture or blows to the second applicant's head. 34. On 28 January 2000 the Shadrinsk District Prosecutor's office refused to institute criminal proceedings in relation to the alleged ill-treatment. The prosecutor relied on the above-mentioned statements and the expert report. He also noted that the applicant had not made any complaint while in the remand centre and that no injuries had been recorded there. The decision states that “the persons concerned should be informed of the decision and the procedure for appealing against it”. 35. On 31 January 2000 the second applicant asked for legal-aid counsel, referring to the lack of means to retain one. The applicant was questioned in the presence of counsel on 4 February 2000 and retracted the confession made on 9 December 1999 as given under duress. 36. On 5 May 2000 investigator M., who was also in charge of the criminal case against the applicant, refused to institute criminal proceedings, dismissing as unsubstantiated the second applicant's renewed complaint of ill-treatment. 37. On 10 May 2000 the second applicant was interviewed in the presence of counsel and, having been apprised of the privilege against self-incrimination, asserted his innocence and remained silent. 38. On 5 June 2000 the investigator rejected a number of applications by the defence, indicating, inter alia, that the allegation of ill-treatment had previously been dismissed after the inquiries and that the case file contained the relevant decisions not to institute criminal proceedings. 39. The applicant sent unspecified complaints to the Shadrinsk Town Court from the detention facility in March 2000 and to the Kurgan Town Court between June and December 2000. 40. In November 1999 and February 2000 the police questioned a Mr V. in the framework of unrelated criminal proceedings. It appears that he was informed of his rights and declined the legal assistance offered to him. In substance, he stated that he had served as a driver for the applicants on the day when K.'s murder had been committed and that he had heard about another murder, allegedly committed by the first applicant. V. also stated that “in winter 1998-1999” the second applicant had set a car on fire on the first applicant's instructions; the latter had unsuccessfully tried to extort a sum of money from the car owner; the first applicant had then allegedly told V. that the second applicant had broken the car window, thrown a bottle of gasoline in the car and set it on fire. V. confirmed his earlier statements during a face-to-face confrontation with the second applicant. However, on 19 April 2000 V. retracted his statement, alleging ill-treatment in November 1999 and February 2000. It appears that the authorities refused to initiate a criminal case against the officers. 41. At the pre-trial stage, a Ms S. was interviewed as a witness regarding the arson charges against the applicants. She identified the second applicant from his general facial traits, in a line-up of three persons, as the person she had first seen “in or around March 1998” when he had tried to set a car on fire in the yard of the block of flats where she lived; the second time was when he broke the car window and spilt gasoline in it. A lawyer and two attesting witnesses were present at the line-up. 42. The applicants and V. were accused of several criminal offences, including murder and arson. The first applicant was charged with two counts of murder, two counts of instigation to destruction of property by arson, unlawful possession of firearms and extortion. The second applicant was charged with murder and two counts of destruction of property by arson. The first count of destruction of property by arson was based on the statement of the victim of the arson attack who alleged that he had had “tensions” with the first applicant. That statement was partly confirmed by witness Ch. The second count was based, in particular, on S.'s statement, an eyewitness who had identified the second applicant as the arsonist. 43. On 19 July 2000 the Kurgan Regional Court held the first hearing. The applicants pleaded not guilty to the murder and arson charges. The second applicant stated that his confession of 9 December 1999 had been obtained under duress after hours of torture. The applicants' co-defendant V. also stated that he had been severely beaten by police officers and, in consequence, had falsely denounced the applicants. He submitted that the officers had beaten him on the upper part of his body but that the blows had left no traces. 44. Ms S. was called to testify at the trial in relation to the second arson case (concerning the events in February 1998). According to a report dated 21 July 2000, a bailiff came to her home but she refused to appear before the trial court, alleging that she had to nurse her underage child. 45. By a judgment of 4 September 2000 the Regional Court found the first applicant guilty on two counts of murder, unlawful possession of firearms and on the second count of instigation to destruction of property by arson and sentenced him to twenty years' imprisonment. The second applicant was found guilty on the second count of the destruction of property by arson and of complicity in the above murder, and sentenced to sixteen years' imprisonment. The court acquitted the second applicant of another arson count (concerning the events in January 1998) and discontinued the related prosecution on that count against the first applicant. 46. On the murder charges the trial court relied on the second applicant's confession, various testimonies by other persons, certain forensic reports and physical evidence. The court dismissed the defendants' allegations of ill-treatment as unsubstantiated because “no injuries had been identified on the applicants' bodies during the preliminary investigation”. 47. On the second arson charge, the trial court relied on V.'s pre-trial statement (see paragraph 40 above), S.'s pre-trial identification report of the second applicant as the arsonist (see paragraph 41 above); the victim's and a witness's statements that there had been “tensions” between the first applicant and the victim. 48. The applicants appealed, alleging, inter alia, that the trial court had failed to summon various witnesses and had wrongly assessed some pieces of evidence, including the self-incriminating statements made by the second applicant and other persons. On 2 April 2001 the Supreme Court of the Russian Federation upheld, in essence, the judgment of 4 September 2000. The charge against the first applicant of unlawful possession of a gas pistol was dropped. The appeal court considered that the trial court had rightly referred to S.'s statement because that person had seen the second applicant set fire to the victim's car and had identified him as the arsonist. The appeal court also noted that S.'s statement and a statement from another person confirmed that there had been tensions between the first applicant and the victim. 49. On 19 September 2001 the Presidium of the Supreme Court, sitting in its supervisory-review capacity, acquitted the first applicant of unlawful possession of firearms and reduced his sentence to nineteen years and six months. 50. In 2005, in reply to requests from the deputy President of the Regional Court, the Kurgan Town Court and the Shadrinsk Town Court stated that in 1999 and 2000 they had not received any complaints from the applicants against the administrations of remand centres, investigating or prosecuting authorities or the police department or its units (see also paragraphs 23 and 39 above). 51. In June 2005 Mr Ya., senior officer of the Organised Crime Unit at the relevant time, made a written statement (see also paragraphs 15 and 31 above), indicating that Mr V. had named the applicants as his accomplices in a number of offences. Thereafter, the second applicant was brought from Kurgan remand centre no. 1 to Shadrinsk and made confessions in respect of murdering victim K. and some other offences. The second applicant was questioned by investigator P. in relation to the murder; Officer Ya. was in charge of the video recording of the interview; Officer Ba. was also present. The second applicant was then brought to Kurgan remand centre no. 2. A week later he was brought to the Unit for questioning and a visit from his family. However, in the meantime, he cut his veins and was admitted to hospital for treatment. On the same day he was brought back to the Unit and retracted his earlier confessions in the presence of investigator P. and chose to remain silent. The applicant was brought back to the remand centre. Subsequently, it was established that the first applicant had tried to compel the second applicant to retract his confessions. Officer Ya. also stated that in May 1999 the first applicant had been brought in for questioning. After his refusal to testify, he had been taken for a medical examination (for unspecified reasons) and had then been placed in the temporary detention centre of Shadrinsk. Both applicants had lodged numerous complaints against various officers of the Organised Crime Unit. However, the inquiries had disclosed no unlawful actions on their part. Except for the murder of K., the other episodes of criminal activity had been dealt with by the Shadrinsk office of the Interior. 52. In June 2005 Mr E., a police officer in 1999, made a written statement (see also paragraphs 15 and 31 above) according to which he had arrested the first applicant in May 1999 and brought him to the Organised Crime Unit for questioning. No physical force had been used against him. Mr E. stated that he might have convoyed the second applicant from Kurgan remand centre no. 1, but without recourse to any physical force or pressure. 53. The Constitution of the Russian Federation provides, in so far as relevant: “Everyone shall be guaranteed judicial protection of his or her rights and freedoms.” “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...” 54. The 1993 Judicial Review Act (Federal Law No. 4866-1 on appeals against acts and decisions infringing individual rights and freedoms), as amended in 1995, provides for a judicial avenue for claims against public authorities, except for those for which the Constitutional Court is competent or for which another procedure is prescribed (section 3). The Act states that a decision or omission by a public authority or official can be challenged before a court if it encroaches on an individual's rights or freedoms or unlawfully imposes an obligation or liability on that individual. In such proceedings the court is entitled to declare the impugned act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the impugned act, decision or omission unlawful, this gives rise to a civil claim for damages against the State. 55. Under the 1960 Code of Criminal Procedure (CCrP), as in force at the relevant time, a prosecutor, investigator or judge was competent to examine complaints and information about any offence committed and to open or refuse a criminal investigation, or to transmit the matter to a competent authority (Article 109). A prosecutor's refusal to open a criminal investigation could be appealed to a higher prosecutor; a judge's refusal could be challenged before a higher court (Article 113 § 4). 56. On 29 April 1998 the Constitutional Court of the Russian Federation invalidated Article 113 § 4 of the Code because it did not allow for judicial review of a prosecutor's or investigator's refusal to institute criminal proceedings. The Constitutional Court ruled that Parliament should amend the legislation on criminal procedure by inserting a possibility of review. It also held that until such amendments were enacted, the national authorities, including courts, should directly apply Article 46 of the Constitution requiring a judicial review of administrative acts. The ruling was published in May 1998. 57. In a ruling of 14 January 2000 the Constitutional Court declared unconstitutional several provisions of the RSFSR CCrP authorising the courts to initiate criminal proceedings of their own motion. In the same ruling the Constitutional Court reiterated that a court could carry out a judicial review of an investigating authority's decision to open a criminal case, to refuse to initiate criminal proceedings or to discontinue such proceedings, in particular on a complaint of a person that his or her constitutional rights had been breached by such a decision. The ruling was published in February 2000. 58. Under Article 52 of the RSFSR CCrP, a suspect has the following rights: a right to know the accusation against him; to make statements; to have access to the record of investigative measures; to lodge complaints; from the time of the arrest to have meetings with counsel, his next of kin or other persons. 59. Article 47 of the RSFSR CCrP provided that counsel could participate in the proceedings from the time when a person was informed of the charges against him or her. If a suspect was arrested or detained, counsel could participate in the proceedings from the time when the suspect was given access to the arrest record or detention order. In its ruling of 27 June 2000 (no. 11-П) the Constitutional Court held that Article 47 of the CCrP was contrary to the Constitution in so far it excluded the possibility of legal representation at the very first stages of the proceedings, that is, before any charges were brought or before access was given to the arrest/detention record. 60. The participation of counsel was mandatory in pre-trial proceedings from the date on which charges were brought in respect of offences punishable by the death penalty and in the court proceedings concerning such offences (Article 49 of the RSFSR CCrP). If counsel was not retained by the person concerned, the authority in charge of the case had to appoint one (ibid). The defendant could waive legal assistance; such a waiver could be opposed by the authority in charge of the case if the case concerned offences punishable by the death penalty (Article 50 of the Code). 61. Article 59 of the Criminal Code provided for the death penalty as a punishment for particularly serious criminal offences against human life, such as aggravated murder. 62. Article 21 of the Constitution guarantees the protection of human dignity and prohibits torture, violence and inhuman and degrading treatment and punishment. Article 117 of the Criminal Code punishes torture, in particular when inflicted in order to compel the person concerned to make statements or to perform other acts contrary to the person's will, as a punishment or for other ends. Article 20 of the RSFSR Code of Criminal Procedure prohibited compelling another to make a statement through the use of violence, threats or other unlawful means against the accused or other persons involved in the proceedings. 63. Article 50 § 2 of the Russian Constitution prohibits reliance in a court of law on evidence obtained in breach of federal law. In a ruling of 31 October 1995 the Plenary Supreme Court of Russia held that such a breach occurred when the gathering and admission of evidence resulted in a violation of the constitutional rights and freedoms or of the criminal law procedure, as well as when the gathering and admission of evidence was carried out by an authority lacking competence or acting in breach of the applicable procedural rules (point 16). 64. Article 69 § 3 of the RSFSR Code of Criminal Procedure provided at the time that evidence obtained unlawfully should be declared devoid of legal force and should not serve as a basis for a prosecution or for proving relevant circumstances such as the damage caused by the criminal offence. 65. Article 413 of the 2001 Code of Criminal Procedure provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention.
| 1
|
train
|
001-80619
|
ENG
|
RUS
|
CHAMBER
| 2,007
|
CASE OF TULESHOV AND OTHERS v. RUSSIA
| 3
|
Violation of P1-1;Violation of Art. 8;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
|
Peer Lorenzen
|
6. The applicants are members of one family. Mr Maksut Netkaliyevich Tuleshov, born in 1953 (the first applicant), and Mrs Aslganym Kalikovna Tuleshova, born in 1955 (the second applicant), are husband and wife; Mr Viktor Maksutovich Tuleshov, born in 1979, and Mr Sergey Maksutovich Tuleshov, born in 1977, are their sons; Mr Kalik Isayev, born in 1929, is the second applicant's father. They, and three other children of the first and the second applicants, live together in one household in the town of Marx of Saratov Region. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. In 1993 Mr Kh bought a house from company B. It was a former shop at 8 Third Avenue, Marx, which Kh intended to convert into a dwelling. The house was free from any third party claim. 9. In 1996 the Marx Town Court of the Saratov Region examined an unrelated commercial dispute between company B and a third party and found that B had failed to perform as stipulated in their contract. The house was listed as pledged property in the contract and the court ordered its sale. Apparently the court was not aware that the house had already been sold to Kh. 10. The sale was administered by the court bailiff. The price was set at 13,600,000 roubles (RUR), the pre-redenomination equivalent of RUR 13,600, or approximately 2,800 US dollars. The first applicant offered to buy the house, and on 12 April 1996 the Marx Town Court approved the sale. This decision took effect on 23 April 1996. The first applicant was registered with the real estate registry (Бюро технической инвентаризации) as the owner of the house. Apparently the first applicant was not aware of Kh's right to the house and Kh was not aware of the sale to the first applicant. 11. On 22 July 1996 the Marx local administration granted a reconstruction permit by virtue of which the first applicant converted the shop into a dwelling of about 78 square metres. He moved into it with seven members of his family including the other applicants. 12. In 1998 Kh seized the Marx Town Court with a property claim in respect of the house and challenged its sale by the bailiff. The first applicant lodged a counterclaim invoking his title to the house. 13. On 28 June 1999 the Marx Town Court found that the bailiff had sold the house to the first applicant unlawfully and declared the sale null and void. It annulled the first applicant's title and ordered his and his family's eviction. The first applicant was awarded RUR 13,600 as reimbursement of the house purchase price by company B and the other party to the contract mentioned in paragraph 9 above, and RUR 113,161 of reconstruction costs payable by Kh. 14. On the same day the applicants were served with an eviction order. 15. The first applicant and Kh appealed. 16. Company B and the other party both failed to pay the amount due to the applicant under the judgment (RUR 13,600) as they became insolvent. 17. On 27 August 1999 the Saratov Regional Court upheld the first instance judgment as to the substance, but reversed the award of the reconstruction costs because such a claim had never been made by the applicants. 18. On 15 November 1999 the Presidium of the Saratov Regional Court quashed on supervisory review the decision of 12 April 1996 by which the sale of the house to the first applicant had been ordered. 19. On 9 August 2000 the Marx Town Court, apparently following the first applicant's request for supervisory review, appointed an expert to assess the market value of the house. The evaluation report issued on the same date estimated it as RUR 245,000 (then an equivalent of about 9,738 euros (EUR)). On 31 August 2000 the Saratov Regional Court rejected the request for supervisory review. 20. On 14 March 2001 the applicants brought proceedings for damages against Kh, the Ministry of Finance, the Ministry of Justice and the Judicial Administration Department. They claimed pecuniary damages of RUR 317,654 including the reconstruction costs (RUR 146,461), the sum of RUR 13,600, i.e. the money which had not been paid by the insolvent debtors, and non-pecuniary damages of RUR 210,000. In support of their pecuniary claims they referred to the expert evaluation of 9 August 2000. The court joined Kh to the proceedings as a co-defendant. 21. On 14 December 2001 the Marx Town Court examined the case. It found that Kh had never authorised the reconstruction works on his premises and, relying on Article 1069 of the Civil Code, held that these expenses were incurred as a result of the authorities' unlawful conduct and must be reimbursed by the State. The first applicant was awarded RUR 89,522 (then the equivalent of about EUR 3,305) to be paid by the Ministry of Finance. In so far as the applicants claimed the reimbursement of RUR 13,600, the court held that the first applicant “had not made sufficient effort to recover the debt” from company B and the other party. The remaining pecuniary and non-pecuniary claims including those by the other applicants were dismissed on the grounds that the applicants had not adduced sufficient proof of the amount they claimed as damages. 22. On 15 February 2002 the Saratov Regional Court upheld the judgment of 14 December 2001. 23. On 26 November 2002 the applicants were ordered to leave the house by 6 December 2002. 24. The applicants challenged the eviction order claiming that the award had not been paid and that no other dwelling had been made available to them. 25. On 9 December 2002 the Marx Town Court of the Saratov Region dismissed the applicants' challenge to the eviction order. This decision was upheld on appeal by the Saratov Regional Court on 17 January 2003. 26. On 27 March 2003 the Marx Town Court of the Saratov Region examined another request by the applicants and adjourned the eviction until 4 April 2003. The applicants appealed claiming that this was insufficient and requested an adjournment until social housing could be allocated. The extension was refused. 27. Between April and July 2003 the applicants were served the eviction order three times, each time with a new deadline. The applicants unsuccessfully challenged the order every time it was served. 28. On 12 September 2003 the bailiff of the Tsentralnyy District Court of Moscow informed the first applicant that the bailiff service was no longer competent to enforce awards against the State. He instructed the first applicant to claim his award under the judgment of 14 December 2001 directly from the Ministry of Finance. 29. On 12 October 2003 the applicants and the rest of the family were evicted from the house. 30. On 19 November 2003 they were granted social housing in a municipal hostel where they have been living since then. For eight family members they were allocated a 45 square metres flat comprising three rooms. The toilet, bathroom and cooking facilities are shared with other flats on the same floor, and the residence has central heating but no gas or hot water supply. The applicants received this accommodation under the terms of a social tenancy and have to pay rent. At present ten family members live in this dwelling. 31. On 18 February 2004 the Ministry of Finance informed the second applicant that the payment due to the first applicant pursuant to the judgment had been suspended because the enforcement documents had been sent to the Ministry's Legal Department “for the inspection of the materials of the [applicants'] court dispute”. It promised to “keep the applicants informed about the outcome of the challenge and its legal assessment”. 32. On 16 November 2004 the Ministry of Finance paid the applicant RUR 89,522 (then the equivalent of about EUR 2,405). 33. On 15 May 2006 the applicants obtained an expert evaluation of the market value of their social housing, which was estimated at RUR 70,000 (then the equivalent of about EUR 2,017). 34. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage. Pursuant to Article 1069, a State agency or a State official is 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. 35. 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. 36. The officially fixed reference rates of the market value of residential real estate are periodically published by the State Construction Agency (Госстрой) and are mandatory for the calculation of State-funded housing subsidies. Directive No. 158 of 29 August 2003 stated that in the last quarter of 2003 the average price of residential real estate in the Saratov Region was RUR 8,200 (then the equivalent of about EUR 248) per square metre.
| 1
|
train
|
001-113244
|
ENG
|
CYP
|
ADMISSIBILITY
| 2,012
|
SAHAP v. CYPRUS
| 4
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
|
1. The applicant, Ms Hatice Sahap was born in 1930 and lives in Larnaca. She was represented before the Court by Mr Z. Necatigil and Mrs S. Karabacak, lawyers practising in Lefkosa and Nicosia. 2. Since 1952, the applicant has owned plots of land in the Republic of Cyprus. In 1974, she fled north to the area occupied by Turkey, where she has lived ever since. The applicant discovered in 2003 that part of her property was occupied by the Water Department, a weighing station and a private company; a road had also been built across the plot. She found that in 1994 part of the land had been compulsorily acquired by the Government for the purpose of building the road. 3. The applicant brought proceedings for compensation for the land subject to compulsory acquisition (case no. 205/2003). On 18 February 2008, the District Court of Larnaca delivered judgment in her favour, ordering the Government to pay 512,580 euros in compensation for the compulsory acquisition, with costs and interest until final payment. 4. The applicant’s lawyer made repeated unsuccessful requests for payment. 5. The relevant laws, including Law 139/191 and relevant case-law on application of the legislation, are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§34-100, decision of 6 March 2012). The provisions in issue in the present case are set out below. 6. This provides: “The payment of any sum due to an owner of Turkish-Cypriot property in relation to such property is suspended during the abnormal situation which exists in the Republic of Cyprus by reason of the Turkish occupation.” 7. Law 139/1991 was amended by Law No. 39(1) of 2010, published in Official Gazette no. 4240 of 7 May 2010, by the insertion of additional provisions. The following was inserted at the end of section 3: “Provided that in the exercise of his above authority to administer Turkish-Cypriot properties during the abnormal situation the Minister also has the power as custodian, to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular Turkish-Cypriot property or part of it, after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter, including whether the Turkish-Cypriot owner of the property or his heirs or successors in title, as the case may be, occupy property belonging to a Greek-Cypriot in the areas not under the Republic’s control: Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of Turkish-Cypriot property– (a) that the matter concerns the administration of property which at the time it came under its regime of custodianship, its Turkish-Cypriot owner had ordinary residence abroad where he had gone at any time before or after the Turkish invasion of 1974, and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic, (b) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the Turkish-Cypriot owner of the property settled permanently in the Government controlled areas of the Republic and continues to be constantly settled there permanently , (c) that the property under administration concerns a house which its TurkishCypriot owner was living [in] and occupying before the Turkish invasion of 1974 and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the Republic.” 8. A new section 6A was inserted into the Law: “(1) Violation of a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ratified by Law, owing to the application of a provision of this Law, is actionable. (2) A person alleging violation of any right guaranteed by the above Convention and or its Protocols owing to the application of a provision of this Law in his case, is entitled, in case of rejection of his relevant claim by the Minister, to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation, and to claim for the violation the remedies provided for in this section: Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him, the action is also directed against the person lawfully in occupation of the property. (3) In determining in an action under sub-section (2) whether the plaintiff’ (4) Where in an action under this section the court determines that the plaintiff’s right was violated, he is entitled in the action: (a) to compensation for any pecuniary damage, loss, costs, and expenses actually incurred on account of the violation, (b) to compensation for non-pecuniary damage or injury sustained on account of the violation, (c) to legal costs actually incurred by him on account of the violation, (d) to the issue of a binding order of recognition of right under the Courts of Justice Laws, (e) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force, or the applicable general principles of law. (5) For ascertaining the damage attributable to the violation as provided for in subsection (4) and assessing and awarding compensation under the said sub-section, the court takes into account the criteria and factors taken into account for this purpose by the European Court of Human Rights as they transpire from its case-law in cases of violation of the right concerned which is guaranteed by the above Convention or its Protocols. Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship, the Custodian and the property’s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff, to any amounts of costs that each has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law: Provided that the said right of the lawful occupier is only for costs of repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission. (7) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of Turkish-Cypriot property, he is entitled by action against the owner in whose favour the said judgment was issued, or against his heirs or successors in title, as the case may be, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property under this Law while it was under custodianship: Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship, is entitled by action against the above owner, his heirs and successors in title, to any amount of costs he has actually incurred for repairs, improvements, developments, building and conversions he has effected on the property with the Custodian’s permission whilst he was in occupation.”
| 0
|
train
|
001-57575
|
ENG
|
CHE
|
CHAMBER
| 1,988
|
CASE OF SCHÖNENBERGER AND DURMAZ v. SWITZERLAND
| 2
|
Violation of Art. 8;No separate issue under Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
| null |
7. The first applicant, Edmund Schönenberger, who is a Swiss citizen born in 1942, practises as a Rechtsanwalt (lawyer) in Zürich. The second applicant, Mehmet Durmaz, who is a Turkish national born in 1950, lives at Onex, in Switzerland. He is a taxi-driver. 8. On 16 February 1984, acting on a statement by one O, the district prosecutor (Bezirksanwalt) for Pfäffikon (Canton of Zürich) issued a warrant for Mr. Durmaz’s arrest, in connection with suspected offences under federal legislation relating to the misuse of drugs. The applicant was arrested on the same day by the Geneva police and taken to Zürich the following day, where he was questioned for the first time by officials from the prosecutor’s office. He was further questioned and also confronted with other suspects on 23 and 24 February, and on each occasion he cooperated by answering all the questions put to him. 9. Mr. Durmaz’s wife, who had been informed of the arrest on 16 February, spoke on the telephone to the Pfäffikon district prosecutor on 20 and 24 February. On these occasions she asked him whether her husband had a lawyer. He replied that he had not but added that he would take care of it. She also wrote to her husband on 21 and 24 February. In the second letter, which reached him on 28 February, she expressed the hope that the "lawyer" - whose name she did not mention - "would look after [him]". On 24 February, she asked Mr. Schönenberger to take charge of Mr. Durmaz’s defence. The first applicant immediately called the district prosecutor to advise him and to say that he would be sending authorisation forms and a letter. Also, on 24 February, he sent a letter and enclosure to the district prosecutor’s office, as required by the relevant legislation, requesting the district prosecutor to forward them to the addressee. The enclosure comprised a copy of the covering letter to the district prosecutor, two forms giving authority to act and a letter to Mr. Durmaz, which read as follows (translation from the German): "Sir, I am instructed by your wife to undertake your defence. You will find enclosed two forms giving me authority to act for you. If you wish to authorise me to represent you, please send one of the forms to the district prosecutor and return the other one to me (duly signed). It is my duty to point out to you that you are entitled to refuse to make any statement. Anything you say may be used in evidence against you. If you choose to remain silent, the district prosecutor will have to prove your guilt by other means (witnesses, etc.). He will usually then try to influence you by arguing that in that case you will remain in custody on remand until such time as he has questioned witnesses, other suspects, etc. If this does not worry you (i.e. a possible prolongation of your detention on remand), it will be to your advantage to exercise your right not to make any statement. Once I have received your authority to act, I shall apply for permission to visit you and will come and see you. At all events, be patient: you will have to be released at some stage! Yours faithfully ..." 10. The district prosecutor probably received the letter and enclosure for Mr. Durmaz on Monday 27 February, but kept them from him without telling him that he had received them. On the same day, he asked Mr. Durmaz to choose a lawyer. Mr. Durmaz, being unable to pay for one, applied for the only Zürich lawyer he knew, Mr. Garbade, to be assigned officially to him; the presiding judge of the Pfäffikon District Court duly appointed Mr. Garbade on 1 March. 11. In an order made on 1 March, the prosecutor’s office decided not to communicate to Mr. Durmaz the letter and forms which were intended for him. It did so on the following ground (translation from the German): "As long as Edmund Schönenberger is not the suspect’s authorised legal representative, the general provisions of the Prisons Ordinance [see paragraph 18 below] apply to him. Section 53(3) prohibits the forwarding of letters concerning the preparation of a case for trial. In the present letter, Edmund Schönenberger has recommended to the suspect a particular course of conduct for the preparation of the case. In virtue of the aforementioned provision, his letter will therefore not be forwarded." The prosecutor’s office returned to Mr. Schönenberger the said documents together with the copy of the covering letter. 12. On various dates between 5 and 23 March 1984, Mr. Durmaz was again questioned and confronted with other suspects. He also received visits from Mr. Garbade. On 8 March, Mr. Garbade had asked the presiding judge of the District Court to offer Mr. Durmaz the possibility of choosing between Mr. Schönenberger and himself as his defence lawyer. The two lawyers had a conversation on 9 March, as a result of which they agreed that Mr. Garbade would continue to assist Mr. Durmaz and that Mr. Schönenberger would challenge the order made on 1 March (see paragraphs 14 to 16 below). 13. Mr. Durmaz was freed on 23 March 1984. On 29 May 1985 the Zürich district prosecutor ordered that he had no case to answer as it could not be excluded beyond all possible doubt that someone else had been mistaken for him. In respect of his detention on remand, the prosecutor awarded him 3,000 Swiss francs (CHF) which the Zürich District Court increased to 3,565 CHF on 30 October 1985. 14. The applicants lodged two appeals against the order of 1 March 1984 (see paragraph 11 above); the first of these was rejected by the Department of Justice of the Canton of Zürich on 19 March 1984, and the second was dismissed by the presiding judge of the Pfäffikon District Court on 11 April 1984. 15. On 7 April 1984, they lodged a public-law appeal with the Federal Court against the decision of the Department of Justice; they alleged an infringement of the federal Constitution and of the Convention. During the proceedings they stated that they did not propose to challenge the dismissal of their second appeal. 16. In a judgment on 20 June, which was notified on 6 November 1984, the Federal Court allowed the appeal in part. It noted in the first place that Mr. Schönenberger could not rely on the privileges conferred on prisoners’ defence lawyers under section 53(3) of the Prisons Ordinance. The Federal Court added that the prosecutor’s office had not infringed either the Constitution or the Convention by intercepting Mr. Schönenberger’s letter to Mr. Durmaz, since it related to pending criminal proceedings and gave the addressee advice on the behaviour to adopt during the investigation. On the other hand, the Federal Court held that the decision to withhold the two authorisation forms and the copy of the covering letter to the prosecutor’s office was contrary to the Constitution: since these documents did not relate to pending criminal proceedings, section 53(3) could not be relied on in respect of them. The Federal Court also pointed out that a person who has been charged with a criminal offence is at all times entitled to ask for a lawyer and to receive a form for giving authority to act. It concluded that the disputed measure was a disproportionate restriction on freedom of correspondence and on the rights of the defence. It consequently set aside the Department of Justice’s decision and awarded the applicants costs of 500 CHF. 17. According to the general principles of criminal procedure, a suspect is under no obligation to make any statements. The Federal Court has held that, under the Constitution, he has the right to remain silent and that he cannot normally be held to have culpably obstructed the proceedings on the sole ground that he has refused to reply to questions, unless there has been some abuse of the right (Judgments of the Swiss Federal Court, vol. 106 (1980), part I a), p. 8, and vol. 109 (1983), part I a), p. 169). 18. In the Canton of Zürich, the monitoring of correspondence with persons in custody is governed by section 53 of the District Prisons Ordinance of 19 April 1972 (Verordnung des Kantons Zürich vom 19. April 1972 über die Bezirksgefängnisse), which was made under section 73 of the law of 6 July 1941 by which the Swiss Criminal Code was enacted. Section 53(3) reads as follows (translation from German): "No correspondence with co-prisoners and former co-prisoners (except for close relatives) shall be allowed. Letters jeopardising the purpose of detention or prison security shall not be forwarded; letters relating to pending criminal proceedings shall be forwarded only if they form part of correspondence with a defence lawyer. A prisoner shall be informed if a letter is not forwarded." 19. In 1973, the Federal Court considered the constitutionality of various provisions of the Zürich Ordinance of 1972. As regards the restrictions on freedom of correspondence, it noted the following (translation from German): "Section 53 lays down in particular that letters ‘whose content is improper’ or which relate to pending criminal proceedings shall not be forwarded. Correspondence with co-prisoners or former co-prisoners is likewise prohibited. On the other hand, communications addressed to supervising authorities or to a defence lawyer are not subject to any restrictions. The applicant alleges that prohibiting communications ‘whose content is improper’ goes much too far and leaves too great a discretion to the officials responsible for monitoring correspondence. In his submission, the prohibition should apply only to communications whose content is ‘illicit’. This change of wording would make no appreciable difference, since the second concept is likewise very imprecise in the present context. The applicant does not dispute the need to prohibit the dispatch of letters with a particular type of content, and that is the very purpose of the monitoring. It is clear, therefore, that any correspondence which might assist in the preparation of escape plans or the commission of fresh criminal offences, or which could have an impermissible influence on criminal proceedings (danger of collusion) must be prohibited. Even assuming that it is in principle desirable to maintain contacts with the outside world, these contacts must not compromise the purpose of detention. Moreover, the supervising authorities must also be given the right to hold back any communications which might jeopardise order in the prison. Conversely, the authorities cannot refuse to forward communications which do not jeopardise either the purpose of detention or order in the prison and which are permissible in their quantity (s. 52). It is accordingly of little consequence whether or not the supervising authority approves the content of such communications (cf., on the legal situation in Germany, the Federal Constitutional Court’s decision of 14 March 1972, vol. 33, no. 1). It is not possible to make an accurate general statement of where the line should be drawn, since it depends on the particular circumstances of each case. The general principle laid down in the disputed ordinance accordingly cannot be criticised as being unconstitutional, at least not if regard is had to the fact that correspondence with the supervising authorities and defence lawyers is not subject to any marked degree of control." (Judgments of the Swiss Federal Court, vol. 99, part I a), pp. 288-289)
| 1
|
train
|
001-22047
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,000
|
JAHNKE and LENOBLE v. FRANCE
| 1
|
Inadmissible
| null |
The three applicants are French nationals, born in 1954, 1955 and 1956 respectively. The first applicant is a technical salesman and lives in Paris. The second applicant is an electromechanical engineer. He is the husband of the third applicant, who is a sales representative. They live in Vitry-sur-Seine (Val-de-Marne). The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were hired in 1986, 1978 and 1985 respectively by a company called Mole Richardson France whose object was the manufacture, sale and hire of lighting and cinematographic equipment. The collective agreement applicable to the three applicants was the one for the metalworking industry. In 1989 Mole Richardson France transferred its manufacturing department and part of its sales department to a company called Raccetec. The employment contracts of the staff employed in connection with the activities which had not been transferred, including the applicants’ contracts, were transferred to Mole Richardson International Ltd. In 1991 Mole Richardson International Ltd transferred its Montrouge branch to a company called Panavision France, which was not subject to any collective agreement. The following year Panavision France closed down its Montrouge establishment. On 28 December 1992 the second applicant was made redundant. On 7 January 1993 the company obtained administrative authorisation to serve a redundancy notice on the other two applicants, who, in their capacity as staff representatives, were protected employees. On 13 January 1993 the company made them redundant on the ground that the establishment employing them had been closed down. On 25 June 1993 the applicants lodged an application with the Boulogne-Billancourt Industrial Tribunal for an order requiring their former employer to pay them all the sums due under their contract, pursuant to the provisions of the collective agreement for the metalworking industry. On 24 November 1993 the Industrial Tribunal dismissed the applicants’ claims in their entirety and awarded costs against them. The tribunal found, inter alia, that while Panavision France had taken over Mole Richardson’s assets and the employment contracts had been transferred to the new employer, the latter was not subject to the application of any collective agreement, “the transfer of a contract under ... Employment Code [not entailing] the preservation of all previously obtaining advantages”. The applicants appealed to the Versailles Court of Appeal. They submitted in their grounds of appeal that Panavision France was obliged to apply the collective agreement for the metalworking industry because, in accordance with the provisions of an Act of 3 January 1985, that agreement continued to be effective for one year following the transfer. They also submitted that their redundancies had breached the European Directive of 14 February 1977 relating to the information to be given to employees in the event of transfers of undertakings (Directive no. 77/187, Official Journal of 5 March 1977). The applicants complained, in particular, that, in breach of the directive, it was only their salary slips that had officially informed them, at the end of December 1991, of the transfer of Mole Richardson International to Panavision France. On 26 June 1995 the Court of Appeal upheld the Industrial Tribunal’s decision that there had been genuine and substantial grounds for making the applicants redundant. It went on to hold that the applicants could not rely on the application of the collective agreement for the metalworking industry at the time of their redundancy because the transfer to Panavision France of Mole Richardson International’s activity and equipment had taken place on 1 July 1991, that is, before they had been made redundant. Accordingly, the Court of Appeal concluded that the applicants could not rely on the collective agreement for the calculation of their redundancy pay because their right to compensation had arisen when the agreement had ceased to be effective. Consequently, it dismissed the applicants’ claims and awarded costs against them. The Court of Appeal did not deal with the ground of appeal relating to a breach of the European directive. The applicants lodged an appeal on points of law with the Court of Cassation. In their grounds of appeal they complained, inter alia, that the Court of Appeal’s judgment had not dealt with “important points of law based on French obligations with regard to the European Community”. They submitted that, accordingly, the Court of Appeal had failed to comply with its obligations under Article 455 of the new Code of Civil Procedure. In its defence pleadings, Panavision France, replying to the arguments put forward by the applicants – and after noting that “the appellant complains that the decision did not deal with his objection based on a breach of the European Directive of 14 February 1977” – submitted: “... apart from the fact that it is not clear in which pleadings this point was raised, it should be reiterated that the judges of fact have a duty to deal only with genuine grounds, defined as the statement of a fact on the basis of which, using legal reasoning, the party intends to demonstrate the merits of a claim or defence. Even supposing that the employee did raise the point, he did not draw any legal inference from the alleged breach of the directive. It was therefore a mere argument which the judges of fact did not have to deal with”. In a judgment of 10 July 1997 the Court of Cassation dismissed the applicants’ appeals. In particular, the ground of appeal based on a breach of the European directive was declared inadmissible on the ground “that it does not appear either from the impugned decision or the pleadings that [the applicants] relied, before the judges of fact, on a breach of the European Directive of 14 February 1977 on the information to be given to employees in the event of transfers of undertakings; it is therefore a new ground of appeal and one of mixed fact and law ...”. New Code of Civil Procedure Article 619 “... new grounds of appeal shall not be admissible before the Court of Cassation. Subject to any contrary provision, the following may, however, be raised for the first time: 1. Points of pure law; 2. Grounds of appeal arising out of the decision being challenged.” That provision enshrines traditional case-law according to which the Court of Cassation was instituted only to assess, from a legal perspective, judgments delivered at last instance. It is thus impossible to raise before the Court of Cassation new grounds which have not been dealt with before the judges of fact. According to the established case-law of the Court of Cassation, a ground which has not been raised before the judges of fact and is of mixed fact and law is a new ground (see, to that effect, Cass. App. 22 November 1942, JPC 43 II 2444; Court of Cassation, 1st Civil Division, 22 May 1979, JPC 79 IV 244; Cass. 2nd Civ., 17 July 1991, GP 93 summ. 2). Article 954 “... Appeal submissions shall formulate expressly the parties’ claims and the grounds on which each of those claims is based.” Article 455 “The judgment shall set out succinctly the respective claims of the parties and the grounds on which they rely; it shall give reasons. The decision shall be set out in the operative provisions of the judgment.” Case-law has interpreted those provisions to mean, inter alia, “that the requirements of that Article are satisfied where the judgment has stated and dealt with the factual circumstances, and the legal inferences drawn from them, on which the decision is based” (see Comm. 5 January 1976, Bull. civ. IV, p. 2, and 2nd Civil Division, 12 May 1980, ibid. II, p. 77).
| 0
|
train
|
001-22961
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,001
|
KNAUTH v. GERMANY
| 1
|
Inadmissible
|
Ireneu Cabral Barreto
|
The applicant, Mrs Ursula Knauth, is a German national who was born in 1944 and lives in Berlin. She was represented before the Court by Mr F. Wolff, a lawyer practising in Berlin. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant had been working as a nursery-school teacher (Kindergärtnerin) in Berlin, in the German Democratic Republic (GDR), since 1962. After the reunification of Germany, and in accordance with the relevant provisions of the Treaty of 31 August 1990 on German Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III – see “Relevant domestic law and practice” below), the applicant was incorporated into the civil service of the Land of Berlin in the Federal Republic of Germany (FRG) and continued working there as a nursery-school teacher. On 6 December 1990 the applicant answered in the negative when asked whether she had signed an undertaking to collaborate (Verpflichtungserklärung) with the GDR Ministry of National Security (Ministerium für Staatssicherheit – MfS – the GDR secret police), and about any contacts she had had with it, and whether she had received any gifts (Zuwendungen) for collaborating. After German reunification those questions were asked of civil servants from the GDR seeking definitive incorporation into the FRG civil service. The applicant stated that she had replied fully and truthfully to the best of her knowledge and belief (nach bestem Wissen und Gewissen) and that she was aware of the fact that an untrue answer on her part could result in her dismissal. On 11 July 1994 a report by the federal commissioner responsible for examining data of the GDR State security police (Bundesbeauftragter für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR, also known as the Gauck-Behörde) revealed that, after a contact period (Kontaktphase) from 13 June to 8 October 1973, the applicant had been registered as a security collaborator (Gesellschaftlicher Mitarbeiter für Sicherheit – GMS) of the Ministry of Security between 8 October 1973 and 19 November 1979, that on 8 October 1973 she had signed an undertaking to collaborate, that she had participated in fourteen spy operations between 19 August 1974 and 29 May 1976 and that a ministry official had confirmed that she had received gifts of money on five occasions. On 17 August 1994 the applicant was questioned about that report. In a decision of 24 August 1994 the Land of Berlin, after consulting the Staff Committee (Personalrat), dismissed the applicant for having collaborated with the GDR Ministry of Security and having lied about her collaboration with that ministry. On 8 September 1994 the applicant appealed against that decision, submitting that she did not remember having collaborated with the Ministry of Security and that, in any event, her collaboration, which had been of minor importance given that she had merely accompanied her husband, went back to such a distant period that it could no longer be held against her today and could not in any circumstances justify her dismissal. In a judgment of 24 March 1995 the Berlin Labour Court (Arbeitsgericht) dismissed the applicant’s appeal and held that her ordinary dismissal (with notice) (ordentliche Kündigung) was justified under section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and practice” below). The court held that the applicant was not fit to be a member of the civil service because she had untruthfully (wahrheitswidrig) declared that she had neither signed an undertaking to collaborate nor collaborated with the GDR Ministry of Security. The authorities had properly questioned her in that connection and the applicant had objectively and subjectively given an answer which had subsequently been proved to be untrue. The court concluded that the Land of Berlin’s interest in dismissing a person who had previously lied to her employer about her collaboration with the GDR Ministry of Security, which had been the instrument of repression in that State, accordingly took precedence over the applicant’s age and long years of service. On 2 June 1995 the applicant appealed against that judgment. The Berlin Regional Labour Court (Landesarbeitsgericht) upheld that judgment on 26 October 1995. The Regional Court held that the applicant’s activity could be regarded as collaboration with the GDR Ministry of Security for the purposes of Article 1 § 5 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below). The fact that she had accompanied her husband in order to provide a smokescreen did not alter that finding. In the Regional Court’s view, the applicant could not have forgotten that she had collaborated with the Ministry or that she had signed an undertaking. Indeed, she had carried out many spy missions in the company of her husband and, in her undertaking, had expressly declared that she wanted to protect the State from enemy attacks. Furthermore, during questioning on 17 August 1994 the applicant had herself declared that she had not attached any importance to her past collaboration, which showed that she remembered it. The applicant had therefore given an untruthful answer and was accordingly unfit to be a member of the FRG civil service. The Regional Court then reiterated that a “lack of personal aptitude” within the meaning of Article 1 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below) could derive from a lack of trust and from reasons connected with the employee’s character. The Regional Court added that in the present case the authorities had been entitled to expect the applicant to reply truthfully to the two questions that had been put to her. Indeed, the authorities had to be able to check whether the applicant, who had not been chosen by them as an employee, but had been employed in accordance with the provisions of the German Unification Treaty, could continue to be a member of the civil service or whether she should be dismissed for having collaborated with the GDR Ministry of National Security. The Regional Court found that the lack of truthfulness and honesty in her reply had destroyed the confidence which the authorities had to have in the applicant and made her continued employment in the civil service unacceptable. On 21 March 1996 the Federal Labour Court (Bundesarbeitsgericht) refused to entertain an appeal on points of law by the applicant on the ground that the ordinary courts’ decisions had been consistent with its own case-law and with that of the Federal Constitutional Court (Bundesverfassungsgericht). On 3 December 1997 a bench of three judges of the Federal Constitutional Court refused the applicant leave to appeal. Section 1(2) of the Unfair Dismissal Act provides: “A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct...” “Sozial ungerechtfertigt ist die Kündigung, wenn sie nicht durch Gründe, die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist.” Article 13 of the Treaty of 31 August 1990 on German Unification provides that the administrative bodies and other institutions of the civil service in the former territory of the GDR come under the authority of the government of the Land in which they are situated. Article 20 § 1 of the Unification Treaty provides that persons who were members of the GDR civil service at the time of reunification are subject to the transitional provisions in Annex I. Article 1 §§ 1-3 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation of civil servants from the GDR into the FRG civil service by means of the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing employment relationship. As members of the GDR civil service belonged to an institution that did not satisfy the criteria of a State based on the rule of law, special provisions on dismissal were included in Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III. Thus, Article 1 § 4 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides: “Ordinary dismissal [with notice] from the civil service is permissible if (a) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude...” “Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht oder wenn...” Article 1 § 5 of the same section is worded as follows: “A substantial ground for an extraordinary dismissal [without notice] exists, inter alia, if the employee (b) has collaborated with the former Ministry of National Security or for the National Security Bureau [of the GDR] and his or her continued employment in the civil service therefore appears unacceptable.” “Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer ... 2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint.” In a leading case the Federal Constitutional Court held that Article 1 § 5 of Annex I to the German Unification Treaty, Chapter XIX, Subject A, Section III was in conformity with the Basic Law because a person who had collaborated with the Ministry of National Security of the GDR did not generally satisfy the requisite conditions for becoming a member of the FRG civil service. In any event, dismissal required an assessment of each individual case during which account had to be taken, inter alia, of the degree of involvement (Mass der Verstrickung) of the person concerned (see Collection of Judgments and Decisions of the Federal Constitutional Court, vol. 96, pp. 189 et seq.). According to the established case-law of the Federal Labour Court, a public employer is entitled to ask a civil servant if he or she collaborated with the Ministry of Security of the former GDR and whether he or she signed an undertaking to collaborate. The interest of the employer in obtaining a truthful answer takes precedence over the civil servant’s right to decide for himself or herself which information he or she is willing to disclose (informationelle Selbstbestimmung). Questioning the civil servant in this way is designed to “cleanse” the civil service of staff with a reprehensible past (vorbelastetem Personal) so that an efficient civil service can be put in place (Schaffung einer leistungsfähigen öffentlichen Verwaltung) in the general interest. Anyone who lies by declaring that they did not sign an undertaking and did not collaborate with the Ministry of National Security is generally unfit to be a member of the civil service (see Collection of Judgments and Decisions of the Federal Labour Court, vol. 74, pp. 120 et seq., and vol. 81, pp. 15 et seq.). Article 242 of the Civil Code (Bundesgesetzbuch – BGB) lays down the principle of good faith (Treu und Glauben) in contractual relations. Sections 19, 20 and 21 of the Law on the Data of the former GDR State Security Police (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen Republik – Stasi-Unterlagen-Gesetz – StUG) govern the conditions in which the commissioner may disclose data of this ministry to third parties, and they authorise, inter alia, the disclosure of information about members of the civil service.
| 0
|
train
|
001-91310
|
ENG
|
BGR
|
CHAMBER
| 2,009
|
CASE OF SIMOVA AND GEORGIEV v. BULGARIA
| 4
|
Violation of Article 1 of Protocol No. 1 - Protection of property
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
6. The applicants were born in 1937 and 1960 respectively and live in Sofia. 7. In 1984 the first applicant purchased from the State a two-room apartment of 48 square metres located on a main commercial street in Sofia. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years. 8. In 1987 the first applicant transferred her title to her son, the second applicant, but preserved the right to use one room of the apartment until the end of her life. 9. After the adoption of the Law on the Restitution of Ownership of Nationalised Real Property in 1992, the former pre-nationalisation owners of the apartment brought proceedings against the first applicant under section 7 of that Law seeking the nullification of her title and the return of their former property. They also brought a rei vindicatio action against the second applicant. 10. In 1997 the District Court found that the 1984 transaction had been valid and dismissed the claims. 11. On appeal, on 6 August 1998 the claims were granted by the Sofia City Court, which also ordered the applicants to vacate the apartment. The final judgment was that of the Supreme Court of Cassation of 20 July 1999, which upheld the Sofia City Court’s judgment. 12. The courts found that in 1984, at the time of the transaction, the building plan of Sofia had envisaged the demolition of the applicants’ apartment building and the construction of a new apartment building. The relevant regulations had prohibited the sale of State apartments in such circumstances. It followed that the first applicant had obtained the apartment unlawfully. Thus, her title had been null and void and the second applicant’s title was null and void as well. 13. The applicants were evicted in April 2000. 14. In 2000, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. 15. On 5 February 2001 the regional governor of Sofia refused the applicants’ request for compensation bonds. Upon the applicants’ appeal, in judgments of 2002 and 2003 the courts quashed the refusal and granted the applicants’ request. 16. In June 2003 an expert appointed by the courts assessed the market value of the apartment at 22,032 Bulgarian levs (“BGN”), the equivalent of approximately EUR 11,200. The applicants submitted the opinion of another expert, who assessed the apartment’s market value at BGN 40,490 (the equivalent of approximately EUR 20,700). 17. In February 2004 the applicants received compensation bonds for BGN 21,600 (the equivalent of approximately EUR 11,000). 18. They sold them on 26 November 2004, when bonds were traded at 68% of face value, and obtained BGN 15,055.20 (the equivalent of approximately EUR 7,680). 19. In 1999 the first applicant brought an action under the State Responsibility for Damage Act seeking BGN 44,800 in damages from the State and the Sofia municipality, which had sold her the apartment in breach of the relevant domestic law. On 10 April 2006 the claim was disallowed in a final judgment of the Sofia Court of Appeal, which found that the authorities’ actions in concluding the contract of sale did not give rise to responsibility under the State Responsibility for Damage Act and that in any event the first applicant could have refused to buy an apartment in breach of the law. 20. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria (nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, 15 March 2007).
| 1
|
train
|
001-85628
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
SANDERS v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
|
The applicant, Mr David Sanders, is a British national who was born in 1948 and lives in Cambridge. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 31 December 1995. On 25 April 2001 the applicant applied for widows’ benefits. On 9 May 2001 the applicant was informed that his claim had been disallowed as he was not a woman. On 11 June 2001 the applicant appealed. On 15 June 2001 he was advised that the decision would not be reviewed. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
| 0
|
train
|
001-96657
|
ENG
|
MLT
|
ADMISSIBILITY
| 2,009
|
ELLUL v. MALTA
| 4
|
Inadmissible
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr Godfrey Ellul, is a Maltese national who was born in 1948 and is currently detained in the Corradino Correctional Facility, Malta. He was represented before the Court by Mr J. Brincat, a lawyer practising in Malta. On an unspecified date, following a police raid, a quantity of drugs, sealed in various small sachets, together with other equipment related to drug use were found. The applicant, an individual, “X”, and another person were present in the raided premises. The applicant attempted to flee. On an unspecified date the applicant was questioned by the police and cautioned and informed about his right to remain silent. On a later date he was visited by a magistrate in order to give evidence as a witness against X. Again the applicant was cautioned and informed about his right to remain silent. In both instances, the applicant, in the absence of a lawyer, availed himself of this right. The applicant was eventually charged with conspiring with others to deal in drugs, possession of drugs with intent to traffic and simple possession. X, was charged with the same offences. The prosecutor, who had the right by law to decide by which court an accused was to be tried, decided to try X before the Court of Magistrates and the applicant before the Criminal Court. That decision, which could not be challenged, had an effect on the range of punishment applicable, in that before the Criminal Court the minimum and maximum punishments were higher. On an unspecified date the applicant’s trial by jury commenced. Witness statements were heard, X and the applicant giving their versions of events. The applicant told the jury that his presence in the house was entirely innocent. He had given a third person a lift to the house to borrow money from one of the occupants. He waited outside for some time, and only then did he knock. He entered the house only at the invitation of the person to whom he had given the lift. On the contrary, X, in his testimony, told the jurors that the applicant and the third person entered the house together. Other items of evidence produced in court consisted of photographic evidence, cash and illegal substances and items related to drug use found on the premises. A pharmacist’s report confirmed that the substance found stored in separate sachets was heroin. At the end of the proceedings the judge addressed the jurors, explaining their role, the law, the burden of proof, the evaluation of evidence and when inferences could be drawn from silence. He stressed that no such inferences could be drawn in the circumstances of the present case. He further noted, inter alia, that they had to examine why the applicant had kept silent when previously questioned and whether he could be deemed to be credible now that he had opted to give evidence during the trial. The impugned paragraphs mentioned during the three-hour address read as follows (unofficial translation): “The issue of credibility, namely whether you believe his [the applicant’s] version, or part of it, whether you will disregard parts of it or all of it because it has not been proved to the degree required, in which case it will be dismissed: the applicant’s lawyer stated that even if you had to ignore his [the applicant’s] testimony, the prosecution has not made out a prima facie case ... this must be given due consideration too, but for a lawyer to say so it must be backed up by arguments as it is easy to say there is no evidence. You must examine the evidence and see whether, notwithstanding what is being argued by the defence, there is not enough evidence in respect of any one of the three charges... ... In the present case where the accused is also a witness in another set of proceedings he also has the right to silence and not to incriminate himself. No inferences can be drawn against the applicant, such as stating that once he is saying this it must be because he was hiding something, otherwise he would have mentioned everything. However, coming to another stage, if after the accused had not given a statement, or if he had given testimony at some stage, as happened in this case, but later decided to remain silent to avoid incriminating himself, he attempts to give an explanation as to why he did not give this version earlier, this explanation is subject to your scrutiny. Meaning that if he here [before the criminal court] says I did not give this version at the start because it was my right not to do so, that is the reason he has submitted. However, you [the jurors] have to tell yourself that it is true, it was his right, but ‘if according to your [the applicant’s] version you [the applicant] had nothing to do with the alleged facts and that you [the applicant] were just called into the creed like Pontius Pilate, had you [the applicant] said this earlier to the police, wouldn’t you [the applicant] have avoided a lot of trouble?’ it is legitimate to put this question to yourselves. If he here [before the criminal court] gives an explanation as to why he did not tell the truth from the start, you [the jurors] have the right to decide whether that explanation was probable and likely to be credible. This is a question for you to decide, without any interference from anyone, but you have the right to do it. If any accused is faced with such a question ...(example question and answer) you have the right to ignore his answer and/or see whether his explanation satisfies you to the required degree. Thus, what you are seeing here is not his right to remain silent, nor the right not to incriminate oneself, but whether he gives an explanation for his silence, or to the change in his version of events. This does not mean that it is so in this case. That is solely something for you as jurors to decide. As judges of fact you have the right to examine this and see whether his explanation satisfies the probability test – is what he is saying probable, or is he saying this because he wants to say something? If it is probable that what he has done, he did for the reasons he is stating, then you have been satisfied ... if it is improbable , you should see why he is saying this now and not earlier or why he had given a different version. ... The inspector further stated that at a certain stage he questioned the accused in hospital, a few weeks after his accident. His statement is before you ... and I have told you that where he has not replied it was his right not to do so and you may not draw any inferences against him when he did not reply. This did not amount to an admission of guilt. However you must also see – at a different stage of the examination of the accused, when he gave testimony here [before this court], if he gave an explanation as to why at the time he had given that version of events, which is not simply that of his right to silence, but another excuse .... And you have the right to scrutinise these reasons he is here giving you and why he did not tell the truth, if the truth was as innocent as he is depicting it now. You have the right to question and to investigate and take a decision as to whether the explanation he is giving now is worth believing or not. That is your right. However, you may not draw inferences against the applicant from the simple fact that during interrogation he remained silent, or failed to reply, or replied to the generic questions but closed like a sea shell when faced with the more fundamental ones. That was his right. If he has explained why he did that, you have the right to analyse that explanation and decide whether to believe it or not, whether it is likely or not, probable or not. This is what you have to analyse. Is his version probable or not? If it is, then you should admit it. If it is not probable it remains to be considered possible... When the applicant gave evidence in the proceedings against X he also had certain rights ... namely to remain silent and not to incriminate himself. This is also a right of the accused and you may not say – what was he hiding when he chose not to reply, would he have incriminated himself? – Do not assume anything. However, when he gives an explanation ... You can ask yourself why he did not give it from the start? You have to see whether his explanation holds water, if it satisfies you to the degree of probability. Why was this explanation not given before to avoid a lot of trouble. Does this explanation hold? It is your right to scrutinise such and to see whether it makes sense to have such a story and not to have told it earlier. His reasons were: that had he said it before he could have got into trouble with his wife, secondly that drug pushers can turn nasty and that if he had mentioned other people’s names he might have risked consequences such as revenge against him. You must therefore see if these excuses were plausible.” ’ imprisonment and a fine of MTL 20,000 (approximately EUR 48,000). On an unspecified date the applicant appealed. He claimed inter alia that there had been a wrong interpretation and application of the law, namely that the jurors (who were aware of the applicant’s previous convictions) had been instructed to accept statements in accordance with their “gut feeling” and had been made to doubt the applicant’s credibility and to suspect that his lawyer did not believe his innocence. Moreover, the judge had breached the applicant’s presumption of innocence by first allowing him this protection and subsequently commenting on it to the jury, insinuating that none of the statements made in court by the applicant could be considered credible since he had not made them at an earlier stage (see quotation above). Moreover, he claimed that the Criminal Court had erred in its assessment of the evidence. On 17 March 2005 the Court of Criminal Appeal upheld the Criminal Court’s judgment in part. It found that the trial judge had correctly addressed the jury instructing them to assess only facts arising out of the charges and proved in the course of the proceedings and not any prior events, or facts they learned of through the media. The expression “gut feeling” had not been appropriate. However, it was probable that the trial judge was referring to a “moral conviction” which the jury had to have in order to find the applicant guilty. This was further confirmed by the ensuing explanation regarding the degree of proof which was required to arrive at a verdict of guilt. As to the issue of credibility, the Court of Appeal did not interpret the wording used by the trial judge as implying any of the matters alleged by the applicant in his appeal. As to the presumption of innocence, it held that the directions to the jury had amounted to a fair explanation of the position in law at that date, namely that no inferences of guilt should be drawn from the accused’ Lastly, the Court of Appeal held that it would only take issue with the trial court’s assessment of the evidence if it were shown that the jury had reached unreasonable conclusions or had based itself on unlawful considerations. However, in view of the imperfections of the directions to the jury, the Court of Appeal went on to examine the evidence so as to establish whether there had been a miscarriage of justice. Having analysed the evidence before the trial court, including transcripts of witness evidence and the documents exhibited, and having considered the submissions of the parties, the Court of Appeal found that the jury had chosen to believe the co-accused’s version of events and not the applicant’s. It was not for the Court of Appeal to interfere with the decision of the jury, which had had the advantage of seeing and hearing all the witnesses and apprising itself of the background to the case as presented to them. This notwithstanding, the court went on to determine whether the evidence produced sufficed to find the applicant guilty on each charge. It concluded that there had not been enough evidence to find the applicant guilty of the first charge, namely conspiring with others to deal in drugs. It confirmed the previous findings as to the remainder of the charges. It therefore reduced the sentence to nine years’ imprisonment and maintained the fine. On an unspecified date the applicant contested the fairness of these proceedings before the constitutional jurisdictions, invoking inter alia, Articles 6 and 14 of the Convention. On 5 July 2005 the Civil Court (First Hall) found against the applicant. On 27 April 2006 the Constitutional Court rejected the applicant’s appeal. It held that the discretionary power exercised by the prosecutor had not prevented the applicant from having a fair trial in accordance with Article 6 of the Convention. Furthermore, the applicant and X could not be considered as persons in the same situation, and thus no issue arose under Article 14. On an unspecified date the applicant instituted proceedings before the constitutional jurisdictions alleging violation of Article 6 §§ 1 and 2, and Article 2 of Protocol No. 7 to the Convention in respect of his criminal proceedings. He complained that his right to silence had been violated. The fact that the applicant had not made a statement before the trial began had been taken into consideration in assessing his credibility. Moreover, his silence in reply to questions put by a magistrate during an interview while the applicant was in hospital, and after having been warned that proceedings could be taken against him, had also been considered from the standpoint of his credibility. In both instances the applicant had not been assisted by a lawyer. He further complained that his right to be presumed innocent had been breached since the Criminal Court of Appeal declined to interfere with the conclusions reached by the trial court unless they were deemed unreasonable. This was tantamount to an assumption of guilt during the appeal proceedings. Similarly, such reasoning had violated his right of appeal, rendering it ineffective and incompatible with Maltese law and Article 2 of Protocol No. 7 to the Convention. On 16 May 2006 the Civil Court (First Hall) rejected the applicant’s complaints. As to Article 6, having reviewed the procedure followed throughout the proceedings, the court held that the applicant had not been denied a fair trial. It further found that the complaint under Article 2 of Protocol No. 7, regarding the quality of the review by the Court of Appeal, was ill-founded. The appeal court had in effect reviewed the evidence and varied the sentence, finding the applicant guilty of only two of the three brought against him. On 3 November 2006 the Constitutional Court, although objecting to the way the appeal had been submitted, confirmed the first-instance judgment. Section 501 (1) of the Maltese Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, reads as follows: (1) On any appeal against conviction by the person convicted, the Court of Criminal Appeal shall allow the appeal - (a) if it considers that the appellant has been wrongly convicted on the facts of the case; or (b) if it considers that there has been an irregularity during the proceedings, or a wrong interpretation or application of the law, which could have had a bearing on the verdict: Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal under paragraph (b) might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred. Section 22 (2) of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows: “Every person charged with an offence against this Ordinance shall be tried before the Criminal Court or before the Court of Magistrates (Malta) or the Court of Magistrates (Gozo), as the Attorney General may direct, ...” Under that provision, the maximum punishment before the Criminal Court may vary between four years and life imprisonment, whereas that before the Court of Magistrates varies between six months and ten years.
| 0
|
train
|
001-99821
|
ENG
|
LTU
|
CHAMBER
| 2,010
|
CASE OF POCIUS v. LITHUANIA
| 3
|
Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
|
András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
|
5. The applicant was born in 1962 and lives in Kaunas. 6. By letter of 28 May 2002, Kaunas City Police informed the applicant that his permits to keep and carry a firearm for defence purposes as well as a hunting rifle had been revoked because on 19 April 2002 the applicant had been listed in an “operational records file” (policijos operatyvinė įskaita), a database containing information gathered by law-enforcement authorities (see paragraphs 24-26 in 'Relevant domestic law' below). The applicant was informed that he was to hand in these firearms to the authorities and would receive money for them. 7. On 19 September 2002 the applicant requested the Kaunas City District Court to order the removal of his name from the operational records database. The applicant stated that he had only discovered that his name had been so listed from the aforementioned police letter. 8. On 11 October 2002 the Kaunas City District Court refused the applicant's request, finding that he should have brought his claims before the administrative courts. 9. The applicant appealed to the Kaunas Regional Court, arguing that he had never been informed of the reasons for the listing of his name in the operational records file and requesting that it be removed. The applicant also asked the court to order the police to provide him with all the written materials concerning the listing of his name. 10. On 21 October 2002 the Kaunas Regional Court found that it was necessary to decide which court – of general or administrative jurisdiction – was competent to hear the applicant's case. 11. On 29 October 2002 Kaunas city police officials instituted criminal proceedings on charges of theft when acting in an organised group (Article 271 § 3 of the Penal Code). The applicant was charged on 16 November 2002 and placed under house arrest. 12. On 26 November 2002 the special chamber responsible for questions of jurisdiction, composed of the judges of the Supreme Court and the Supreme Administrative Court, decided that the applicant's case should be examined by the administrative courts. 13. On 27 March 2003 the applicant was charged with covering up a crime committed by others (Article 295 of the Penal Code). In particular, the investigators suspected that in October and November 2002 the applicant had helped to hide stolen cars on the premises of the company where he worked as the director. In his application the applicant maintained that this was not a fresh charge against him but a substitution for the previous charge of theft (see paragraph 11 above). 14. On 27 May 2003 the Kaunas City District Court ordered that the applicant be released from house arrest. 15. On 29 May 2003 the Kaunas Regional Administrative Court allowed the applicant's action, holding that the listing of his name in the police file was contrary to the principles of the presumption of innocence and the rule of law. Having reviewed the classified materials submitted by the police, the court found no evidence showing that the applicant had been engaged in any criminal activity. The court also noted the absence of any accusatory judgment against the applicant. On the contrary, testimony to his positive attributes, submitted to the court by environmental protection agencies and non-governmental associations, showed the applicant's goodwill and dedication (principingumą) to protecting nature. For the above reasons, the court ordered the Kaunas police officials to remove the applicant's name from the operational records file. 16. On 12 June 2003 the Kaunas police appealed. They contended that, when listing the applicant's name in an operational records file, the police had respected the applicable rules. In their appeal they observed that the file had been submitted to the Kaunas Regional Administrative Court and that the judges had acquainted themselves with that information. Lastly, the police noted that criminal proceedings on charges of theft had been pending and that the applicant was one of the accused. 17. On 23 July 2003 the Supreme Administrative Court quashed the lower court's decision and returned the case for fresh examination. It was noted that the lower court had erred in law and failed to consider certain relevant evidence. The appellate court emphasised that, when adopting a decision, the lower court had to evaluate all the evidence which had been presented at the hearing and to determine which circumstances had been established and which had not. In particular, the lower court had not properly examined the circumstances relating to the criminal proceedings on charges of theft and had failed to evaluate the applicant's procedural position in them. The Supreme Administrative Court stressed that it was indispensable to examine all the circumstances relevant to the dispute over the listing of the applicant's name in the operational records file. 18. On 1 December 2003 the Kaunas Regional Administrative Court dismissed the applicant's claim. The court admitted that a person listed in police records could be negatively affected in a number of ways, for example, he could lose the right to carry a firearm or face restrictions when applying for certain jobs. However, the court noted that having examined the “written evidence” in the case, as well as having examined, in the judges' chambers, the operational file on the applicant, the listing of the applicant's name in the police file had been lawful and justified. Whilst acknowledging that it had not been possible to disclose the operational file to the applicant, the court noted, nevertheless, that the applicant had been able to substantiate his claims by providing evidence or by asking the court to obtain the relevant materials when it had not been possible for him to obtain them himself. It concluded that he had not adduced any proof in support of his claim that the listing of his name in the operational file was unlawful. 19. The applicant appealed, noting the lower court's observation that the listing of his name in the police file could entail negative consequences for him. The applicant also submitted that he was an inspector of nature protection (gamtos apsaugos inspektorius) and that he had been attacked by poachers on numerous occasions. Consequently, were the guns to be taken away from him, it would be too dangerous for him to pursue that activity. Furthermore, the applicant alleged that the gun was necessary for defending his family – living in a remote and insecure rural area – and also for his job, as he occasionally transported large sums of money from his company's safe to the bank. 20. The applicant argued that he had had no access to the information which had served as the basis for the listing of his name in the police file. No reasons, except for theories (išskyrus prielaidas) had been disclosed to him. Relying on the above, the applicant submitted that his rights of defence had been breached and that the file on him should be destroyed. 21. On 24 March 2004 the Supreme Administrative Court dismissed the applicant's appeal, upholding the reasoning of the lower court. It noted that, “having evaluated the written evidence in the case and the operational file [which under the Law on State Secrets could not be disclosed to the defence], it had been possible to conclude that the listing of the applicant's name in that operational file had been reasonable and lawful”. 22. On 28 June 2004 the criminal investigation in respect of the applicant on account of suspected theft was discontinued due to statutory limitations. 23. Article 21 of the Constitution provides that the dignity of a human being is to be protected by law. Article 22 states that the private life of a human being is inviolable and that information concerning it may be collected only following a reasoned court decision and only in accordance with the law. The law and the courts are to protect anyone from any arbitrary or unlawful interference with his or her private life or from encroachment upon his or her honour and dignity. Article 23 of the Constitution provides that property is inviolable and that ownership rights are protected by law. Property may be taken only for the needs of society in accordance with the procedure established by law and must be fairly compensated. Under Article 30 of the Constitution, a person whose constitutional rights or freedoms have been violated has the right to apply to a court. Article 48 provides that each human being may freely choose a job or occupation. 24. Article 2 § 1 of the Law on Operational Activities (Operatyvinės veiklos įstatymas) (as in force until 28 June 2002) described “operational activities” as being intelligence and counter-intelligence activities conducted by institutions and authorised by the State to combat organised crime. Under Article 2 § 8 of the Law, an “operational records file” is the data on individuals, events and other targets obtained during the process of operational activities, with the intention of providing information to operational entities. 25. Under Article 4 of the Law, possible reasons for commencing operational activities would be the existence of preliminary information about a crime which was being planned or had already been committed against the State, about another kind of major crime, about an individual who was planning or who had committed a crime, about an individual's links to a criminal organisation, or about the activities of foreign intelligence services. 26. Article 13 of the Law provided: “1. Information obtained during the course of operations may be disclosed during court proceedings with prior authorisation from the Prosecutor General or the Deputy Prosecutor General designated by him. Use of information obtained during the course of operations for purposes other than those for which it was intended is prohibited. 2. Information obtained during the course of operations may be used as evidence in a criminal case in accordance with the formalities and procedure established by the Code of Criminal Procedure. 3. If, during the course of proceedings, information about an individual obtained using special equipment is disclosed, the individual has the right to lodge a complaint and contest the use of that information in court, on the grounds that the information was obtained illegally. In such instances the court has the right to disclose excerpts from the reasoned authorisation request [to start an operational activity] in order to prove the legality of that authorisation.” 27. Article 17 § 1 (2) of the Law on the Control of Arms and Ammunition (Ginklų ir šaudmenų kontrolės įstatymas) provided at the material time that arms and ammunition could not be acquired or possessed by a person who did not have an impeccable reputation. According to Article 18 § 2 (5) of that Law, a person was not regarded as having an impeccable reputation if his or her name had been listed in an operational records file. Article 38 of the Law provided that, after a firearms licence had been revoked, the arms and ammunition were to be taken from the person concerned and sold through the Arms Fund (a State agency) or through other companies authorised to sell them. 28. Article 6 § 2 (4) of the Law on the Protection of Persons and Property (Asmens ir turto saugos įstatymas) provides that a person whose name is listed in an operational records file is not eligible to work as a security officer. 29. The relevant part of the Law on Administrative Procedure (Administracinių bylų teisenos įstatymas) provides as follows: “1. Evidence in an administrative case is all factual data found admissible by the court hearing the case and based upon which the court finds ... that there are circumstances which justify the claims and rebuttals of the parties to the proceedings and other circumstances which are relevant to the fair disposal of the case, or that there are no such circumstances ... 3. As a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case, until the data has been declassified in a manner prescribed by law.” 30. In the judgment of 4 September 2002 in case no. A10-786-02, the Supreme Administrative Court stated, in so far as relevant to the present case, that: “as a rule, factual data which constitutes a State or official secret may not be used as evidence in an administrative case until it has been declassified (Article 57 § 3 of the Law on Administrative Procedure). Therefore, in the absence of other evidence, the [lower] court's reliance on solely written information provided by the State Security Department which was marked as secret had no legal basis”. 31. On 15 July 2007 the Constitutional Court adopted a ruling on the compatibility with the Constitution of Article 57 § 3 of the Law on Administrative Procedure, and Articles 10 § 4 and 11 of the Law on State Secrets. It ruled that no decision of a court could be solely based on information which constituted a State secret and which was not disclosed to the parties to the case. In the ruling no. A822-326/2009 of 8 October 2009 the Supreme Administrative Court confirmed the above principles.
| 1
|
train
|
001-98447
|
ENG
|
SVK
|
CHAMBER
| 2,010
|
CASE OF HUDAKOVA AND OTHERS v. SLOVAKIA
| 3
|
Remainder inadmissible;Violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicants' relative and another person were sued in the District Court in Trebišov. The plaintiffs in the case claimed that real property in respect of which the defendants were registered as owners belonged to the estate of the plaintiffs' predecessors. 6. On 5 October 1999 the District Court dismissed the action. 7. On 26 October 2000 the Regional Court in Košice quashed the firstinstance judgment. 8. On 9 October 2001 the applicants joined the proceedings as defendants. 9. On 18 September 2002 the District Court allowed the plaintiffs' action. 10. On 16 September 2003 the Regional Court upheld the decision of the District Court. 11. The applicants filed an appeal with the Supreme Court on points of law. They alleged that the Regional Court had not assessed the relevant facts correctly. In particular, the applicants challenged the conclusion that the predecessors of the plaintiffs had acquired the property in question pursuant to a document issued on 6 April 1948. In any event, they argued that the document was invalid as it contained incorrect information. Finally, the applicants alleged that the property in question had not been specified with sufficient certainty in the document. 12. On 27 July 2004 the Supreme Court publicly delivered a judgment dismissing the applicants' appeal on points of law. The judgment stated that the Supreme Court had examined the case without a hearing pursuant to Article 243a § 1 of the Code of Civil Procedure. It indicated that the plaintiffs had submitted observations on the applicants' appeal on points of law. In their observations the plaintiffs had alleged that their predecessors had acquired the property in question by virtue of the document of 6 April 1948 or, in any event, by prescription. 13. The Supreme Court upheld the conclusions reached by the Regional Court. It held that, despite several inconsistencies in the text of the administrative document of 6 April 1948, it was evident that the land in question had been allocated to the plaintiffs' predecessors. Similar administrative documents were to be presumed correct and binding to the extent that they had been delivered by a competent authority and had become final. The ordinary courts could not subsequently review the merits of such decisions. The fact that, according to the document, further action had been needed with a view to completing the allocation of the property to the persons concerned was irrelevant as regards the acquisition of the property by the plaintiffs' predecessors by virtue of that document. Such situation was in conformity with the law in force at that time. 14. The applicants filed a complaint with the Constitutional Court. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. They complained that the Supreme Court had had before it observations submitted by the plaintiffs which had not been communicated to the applicants. They further contended that the Regional Court had not taken into account the fact that the document in issue did not clearly indicate the persons to whom the land had been allocated and that the Supreme Court had not remedied that shortcoming. 15. On 2 February 2005 the Constitutional Court dismissed the applicants' complaint. It found that the parties had had ample opportunity to submit their arguments on the relevant issues before the ordinary courts at two levels. With reference to the judgment of the Supreme Court, the Constitutional Court held that the plaintiffs' observations in those proceedings had contained no new arguments. The reasons for the Supreme Court's judgment relied on facts and arguments which had been known to the applicants and on which they had been able to comment at an earlier stage of the proceedings. The Supreme Court had taken no evidence. It had addressed the relevant issues and had given sufficient reasons for the conclusions reached, which did not appear arbitrary. The fact that the applicants had not been able to comment on the plaintiffs' submissions to the Supreme Court, and that the latter had dismissed their appeal on points of law, was not contrary to the applicants' right to a fair hearing. The Constitutional Court further held that, in view of its above conclusions, the applicants' complaint regarding the alleged violation of their property rights as a result of the Supreme Court's decision was manifestly ill-founded. 16. Article 243(a) § 1 permits the court of cassation to dispense with a hearing, inter alia, where an appeal on points of law is based on the argument that the lower court had incorrectly assessed the case. Paragraph 2 of Article 243(a) provides that no evidence is taken in cassation proceedings.
| 1
|
train
|
001-94204
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF ANDREOU PAPI v. TURKEY
| 3
|
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 3 - Prohibition of torture;No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 7 - No punishment without law;No violation of Article 11 - Freedom of assembly and association;No violation of Article 13 - Right to an effective remedy;No violation of Article 14+5 - Prohibition of discrimination (Article 5 - Right to liberty and security);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+7 - Prohibition of discrimination (Article 7 - No punishment without law);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
|
7. The applicant was born in 1933 and lives in Limassol. 8. The applicant claimed that in 1952, when she was 19 years' old, she had permanently settled in Famagusta (northern Cyprus), where she got married and had two sons. She had her home and other immovable property there. In order to substantiate her claim to ownership, the applicant produced an “affirmation of ownership of Turkish-occupied immovable property” issued by the Republic of Cyprus, according to which her properties could be described as follows: - Famagusta, Chrysi Akti, plot no. 778, block C, sheet/plan 33/21.1.IV, description: buildings with house, yard and shop on ground floor and house on the first floor; use: residence; area of the houses: 115 m² each; share: ¾. 9. The applicant submitted that the property described above had been transferred to her by way of gift from her husband, Mr Andreas Papis, on 28 June 2000 (Declaration of transfer no. D-971). The latter had acquired it on 8 July 1994 by way of gift (Declaration of transfer no. D-1044) from his mother, who had become the owner of the whole property in 1971. The applicant produced a copy of the two above-mentioned declarations of transfer. 10. The applicant also claimed to have a “possession” within the meaning of Article 1 of Protocol No. 1 with regard to the following property: - Kato Dherynia, provisional no. 19, D/959; description: building site under subdivision; share: whole. 11. In particular, the applicant declared that she had entered into a contract to purchase the site on 24 December 1971 and had paid the purchase price in monthly instalments. The sale price was CYP 2,750 (approximately EUR 4,613) and the applicant had given a lump-sum of CYP 200 (approximately EUR 341) as an advance payment. The remaining sum of CYP 2,550 should have been paid as follows: CYP 500 on 31 January 1972, plus 48 monthly instalments of not less than CYP 45 (approximately EUR 76). All the instalments had been paid off, with the final one being paid on 2 July 1974. In accordance with the contract, the transfer was to be effected on payment of the full sale price. However, the applicant's title to the land was not registered owing to the Turkish intervention. The applicant produced the contract of sale and copies of the receipts of payment. 12. The applicant submitted that since the 1974 Turkish intervention she had been deprived of her property rights, since her property was located in the area that was under the occupation and control of the Turkish military authorities. She had made an attempt to return to her home and property on 19 July 1989, but had not been allowed to do so by the Turkish military authorities. They had prevented her from having access to and using her house and properties. 13. On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) also took part. 14. According to an affidavit sworn by the applicant before the Nicosia District Court on 4 August 2000, the demonstration of 19 July 1989 was peaceful and was held on the fifteenth anniversary of the Turkish intervention in Cyprus, in support of the missing persons and to protest against human rights violations. 15. The applicant and other women had gathered in the Ayios Georgios church, where a service was in progress. While she was in the chapel, she heard cries coming from outside and at the same time saw Turkish policemen entering the church, indiscriminately grasping women, beating them and pulling them out. 16. A policeman had seized the applicant by one hand and twisted the other backwards. He started to push her out of the church and to hit her fiercely with a baton and with his knee in the lower part of her head and on the back of her neck as well as on other parts of her body. She felt electricity passing through her body and realised that the baton was electric. The applicant and other women were forcefully dragged into the area controlled by the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”). 17. She was then arrested and taken by bus to the so-called “Pavlides Garage”. During the journey she was subjected to assaults, beatings and gestures of a sexual nature by the officers who had detained her. The crowd outside the garage was swearing, shouting abuse and threats and throwing stones at the garage, some of which came through the roof. Some of the Turkish policemen threatened to open the doors and let the crowd lynch the detainees. At the garage there were also two UN men who merely acted as observers. One of the women detainees (Mrs Vrahimi – see application no. 16078/90) was seriously beaten. At about midnight the applicant was interrogated. Her interrogation took place in Greek. The applicant lied when asked for details concerning the members of her family. She was told to sign a statement in Turkish but did not do so as she did not understand Turkish and considered that signing the statement would have been tantamount to recognising the “TRNC”. On the morning of 20 July 1989 she was given some food and water and then taken to court where she was remanded in custody for forty-eight hours. At the hearing, an interpreter explained the procedure to the accused. The applicant understood that she was accused of having violated the borders of the “TRNC”. 18. She was subsequently transferred to a prison outside Nicosia, where she was kept in a cell with another two women. Since there were not enough mattresses she and the other detainees in her cell took turns to lie down; however, she could not sleep due to the severe pain from the blows she had received. During the night the applicant and the other detainees were harassed by the guards and told that the long-term prisoners would rape them. The toilets and showers were filthy and had no doors so the guards could see the detainees bathing. Essential means of hygiene were lacking. At night, the guards continually picked out individual detainees for checks. 19. At around midnight on 21 July 1989, the applicant was taken to court. She had no legal representation and the quality of the interpretation was poor; the applicant felt that the interpreter was not translating all of what was being said. The judge asked whether the accused wanted legal representation; they replied that they would only accept as defence counsel a lawyer registered with the bar association of the Republic of Cyprus. As a result, they were not assisted by a lawyer. One of the accused spoke on behalf of the others. 20. Some prosecution witnesses were interrogated. They lied about the basic facts surrounding the demonstration and the circumstances of the arrest and the accused tried to protest. However, they were told to stay quiet if they did not want to be handed over to the vociferous crowd that had gathered outside the courtroom. 21. At around midnight on 22 July 1989 the court sentenced the applicant to three days' imprisonment and to a fine of 50 Cyprus pounds (CYP) – approximately 85 euros (EUR) – with five additional days in prison in default of payment within 24 hours. She was brought back to prison where she was given some personal hygiene items that had been sent by the Red Cross. 22. On 24 July 1989 the applicant was released. At the time of her release she was examined by UN doctors, who took some notes, and then transferred to southern Cyprus. On 28 July 1989 she made a statement to Limassol police and was also examined by a Government doctor at Limassol Hospital. The applicant produced a medical report issued on that same day by Dr. Charalambos Michael, a medical officer. This document reads as follows: “On 28.7.1989 and at approximately 23.00 hours I was requested by the Limassol District Police to examine Mrs Despo Andreou Papi from Famagusta and presently living at 16 Chrysanthou Mylona Street in Limassol. Mrs Papi alleges that on 19.7.1989 she was hit (kicks, fists and use of police baton) on various parts of her body by Turkish pseudo-policemen in the area of Ayios Kassianos in Nicosia. At the examination the following were found: 1. Multiple and extensive bruises on various parts of the body, particularly obvious and serious in the areas of the right buttock and the posterior surface of the left hip. 2. Haematoma and swelling on the left elbow joint. 3. Pain at various parts of the body particularly in the region of the ribs (both sides), the neck, the left elbow, both buttocks, the coccyx and the waist. X-ray examination was requested.” 23. The applicant alleged that she continued to suffer from the effects of the beatings inflicted on her. 24. The Government alleged that the applicant had participated in a violent demonstration with the aim of enflaming anti-Turkish sentiment. The demonstrators, supported by the Greek-Cypriot administration, were demanding that the “Green Line” in Nicosia should be dismantled. Some carried Greek flags, clubs, knives and wire-cutters. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the laws of the “TRNC”. The applicant was arrested by the Turkish-Cypriot police after crossing the UN buffer zone and entering the area under Turkish-Cypriot control. The Turkish-Cypriot police intervened in the face of the manifest inability of the Greek-Cypriot authorities and the UN Force in Cyprus to contain the incursion and its possible consequences. 25. No force was used against demonstrators who did not intrude into the “TRNC” border area and, in the case of demonstrators who were arrested for violating the border, no more force was used than was reasonably necessary in the circumstances in order to arrest and detain the persons concerned. No one was ill-treated. It was possible that some of the demonstrators had hurt themselves in the confusion or in attempting to scale barbed wire or other fencing. Had the Turkish police, or anyone else, assaulted or beaten any of the demonstrators, the UN Secretary General would no doubt have referred to this in his report to the Security Council. 26. The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. She pleaded not guilty, but did not give evidence and declined to use the available judicial remedies. She was asked if she required assistance from a lawyer registered in the “TRNC”, but refused and did not ask for legal representation. Interpretation services were provided at the trial by qualified interpreters. All the proceedings were translated into Greek. 27. In his report of 7 December 1989 on the UN operations in Cyprus, the UN Secretary General stated, inter alia: “A serious situation, however, arose in July as a result of a demonstration by Greek Cypriots in Nicosia. The details are as follows: (a) In the evening of 19 July, some 1,000 Greek Cypriot demonstrators, mostly women, forced their way into the UN buffer zone in the Ayios Kassianos area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further. A short while later, Turkish-Cypriot police and security forces elements forced their way into the area and apprehended 111 persons, 101 of them women; (b) The Ayios Kassianos school complex is situated in the UN buffer zone. However, the Turkish forces claim it to be on their side of the cease-fire line. Under working arrangements with UNFICYP, the Turkish-Cypriot security forces have patrolled the school grounds for several years within specific restrictions. This patrolling ceased altogether as part of the unmanning agreement implemented last May; (c) In the afternoon of 21 July, some 300 Greek Cypriots gathered at the main entrance to the UN protected area in Nicosia, in which the UN headquarters is located, to protest the continuing detention by the Turkish-Cypriot authorities of those apprehended at Ayios Kassianos. The demonstrators, whose number fluctuated between 200 and 2,000, blocked all UN traffic through this entrance until 30 July, when the Turkish-Cypriot authorities released the last two detainees; (d) The events described above created considerable tension in the island and intensive efforts were made, both at the UN headquarters and at Nicosia, to contain and resolve the situation. On 21 July, I expressed my concern at the events that have taken place and stressed that it was vital that all parties keep in mind the purpose of the UN buffer zone as well as their responsibility to ensure that that area was not violated. I also urged the Turkish-Cypriot authorities to release without delay all those who had been detained. On 24 July, the President of the Security Council announced that he had conveyed to the representatives of all the parties, on behalf of the members of the Council, the Council's deep concern at the tense situation created by the incidents of 19 July. He also stressed the need strictly to respect the UN buffer zone and appealed for the immediate release of all persons still detained. He asked all concerned to show maximum restraint and to take urgent steps that would bring about a relaxation of tension and contribute to the creation of an atmosphere favourable to the negotiations.” 28. The applicant produced 21 photographs taken at different times during the demonstration on 19 July 1989. Photographs 1 to 7 were intended to show that, notwithstanding the deployment of the Turkish-Cypriot police, the demonstration was peaceful. In photographs 8 to 10 members of the Turkish-Cypriot police are seen breaking up the UNFICYP cordon. The final set of photographs shows members of the Turkish-Cypriot police using force to arrest some of the women demonstrators. 29. Section 70 of the Cypriot Criminal Code reads as follows: “Where five or more persons assemble with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace they are an unlawful assembly. It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid. When an unlawful assembly has begun to execute the purpose, whether of a public or of a private nature, for which it assembled by a breach of the peace and to the terror of the public, the assembly is called a riot, and the persons assembled are said to be riotously assembled.” 30. According to section 71 of the Criminal Code, any person who takes part in an unlawful assembly is guilty of a misdemeanour and liable to imprisonment for one year. 31. Section 80 of the Criminal Code provides: “Any person who carries in public without lawful occasion any offensive arm or weapon in such a manner as to cause terror to any person is guilty of a misdemeanour, and is liable to imprisonment for two years, and his arms or weapons shall be forfeited.” 32. According to section 82 of the Criminal Code, it is an offence to carry a knife outside the home. 33. The relevant part of Chapter 155, section 14 of the Criminal Procedure Law states: "(1) Any officer may, without warrant, arrest any person - ... (b) who commits in his presence any offence punishable with imprisonment; (c) who obstructs a police officer, while in the execution of his duty ..." 34. Section 9 of Law No. 5/72 states: "... Any person who enters a prohibited military area without authorisation, or by stealth, or fraudulently, shall be tried by a military court in accordance with the Military Offences Act; those found guilty shall be punished." 35. Subsections 12 (1) and (5) of the Aliens and Immigration Law read as follows: “1. No person shall enter or leave the Colony except through an approved port. ... 5. Any person who contravenes or fails to observe any of the provisions of subsections (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred pounds or to both such imprisonment and fine.”
| 1
|
train
|
001-107743
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,011
|
TRANSPETROL, A.S., v. SLOVAKIA
| 3
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
|
1. The applicant, TRANSPETROL, a.s. (“the applicant company”), is a joint-stock company established in 1993 under the laws of Slovakia with its head office in Bratislava. At various stages of the proceedings before the Court the applicant company was or has been represented by Mr J. Drgonec, Ms E. Csekes, Mr Ľ. Novák, Mr O. Korec and Mr M. Krivák, lawyers practising in Bratislava. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant company specialises in transporting, storing, buying and selling oil. It has a registered capital of 100,843,372 euros. 4. In the past, including at the time of the contested judgment (nález) of the Constitutional Court (see paragraphs 21 and 55 below), the State, in the person of the Ministry of the Economy (“the Ministry”), owned 51% of the shares in the applicant company. The remaining shares were owned by private parties. 5. At present all of the shares in the applicant company are owned by the State, in the person of the Ministry. 6. The status and functioning of the applicant company are subject to provisions of the Commercial Code (see paragraph 50 in the “Relevant domestic law” section below). It is subject to the jurisdiction of the ordinary courts. 7. Under the Securing of State Interests on the Privatisation of Strategically Important State-owned Enterprises and Joint-stock Companies Act (“the Strategic Interests Act” – see paragraph 48 in the “Relevant domestic law” section below), the shares in applicant company which were held or owned by the State could not be subject to privatisation. 8. Under the Large-scale Privatisation Act (“the Privatisation Act” – see paragraph 49 in the “Relevant domestic law” section below), the applicant company is listed among a list of entities having the character of a natural monopoly (prirodzený monopol). 9. Since 1998 a number of companies and individuals have claimed that they have obtained title to 34% of the shares in the applicant company by way of purchase in the context of a forced sale, carried out pursuant to the enforcement of an adjudicated claim for damages by a third party company against the State. One such company is a limited liability company, A. 10. The ownership, possession and other rights in respect of the abovementioned shares have been subject to numerous private-law transactions and a large amount of litigation of various kinds. 11. Various persons involved in the transactions mentioned above, including the representative of company A, a judicial enforcement officer and an advocate, were put on trial on charges of money laundering and fraud. The proceedings appear to be still pending, following a judgment convicting the defendants at first instance. 12. More details are summarised in the Court’s decision of 13 November 2003 in the application of Šándor and Others v. Slovakia (no. 52567/99). 13. On 4 November 2002 company A. lodged a petition with the Bratislava I. District Court (Okresný súd) arguing that it was the owner of 5.78% of the shares in the applicant company, which was above the statutory 5% threshold for being entitled to have an extraordinary general meeting (“EGM”) of shareholders in the applicant company called. Company A. argued that the applicant company had ignored a previous request it had made to call an EGM and sought judicial authorisation to do so itself. The applicant company was the defendant in those proceedings. 14. On 18 November 2004 the District Court allowed the petition and authorised company A. to call an EGM, having found it established that company A. was the owner of 110 shares in the applicant company. 15. On 27 July 2005, exercising his discretionary power, the Prosecutor General challenged the decision of 18 November 2004 in the Supreme Court (Najvyšší súd) by way of an extraordinary appeal on points of law (mimoriadne dovolanie). 16. Relying on Articles 4 and 20 § 2 of the Constitution (see paragraphs 44 and 45 in the “Relevant domestic law” section below) and on the relevant provisions of the Strategic Interests Act and the Privatisation Act – see paragraphs 48 and 49 in the “Relevant domestic law” section below), the Prosecutor General argued, inter alia, that at the relevant time the acquisition of shares in the applicant company by company A. had been excluded by law. Company A. was accordingly not a shareholder in the applicant company and had no power to call an EGM of its members. 17. On 28 June 2006 the Supreme Court determined the extraordinary appeal for the first time (see below) by allowing it, quashing the decision of 18 November 2004 and remitting the case to the District Court for reexamination. 18. Company A. subsequently challenged the judgment of the Supreme Court of 28 June 2006 by way of a complaint under Article 127 of the Constitution (see paragraph 46 in the “Relevant domestic law” section below). The Supreme Court was named as the defendant in this complaint. The applicant company had no standing in the constitutional proceedings. 19. On 19 August 2006 the proceedings on the merits of the 2002 petition of company A. (see paragraph 13 above) were terminated following the withdrawal by company A. of its petition on the grounds that the EGM had already taken place and that, consequently, the petition had become moot. 20. The further course of the proceedings, as described below, thus merely concerned the extraordinary appeal of the Prosecutor General (see paragraph 15 above) and the constitutional complaints of company A. (see the preceding paragraph and paragraphs 26 and 30 below). 21. On 11 December 2007 the Constitutional Court (Ústavný súd) found that the Supreme Court had violated the right of company A. to a fair trial. Consequently, the Constitutional Court quashed the judgment of 28 June 2006 and remitted the case to the Supreme Court for re-examination of the Prosecutor General’s extraordinary appeal. 22. In its reasoning, the Constitutional Court held that “[company A.] had obtained the shares and had done so in the course of enforcement proceedings” and that “it was justified and lawful for [company A.] to assume that it had legitimately become the owner of the shares, which had provided a basis for it to have the power to call the general meeting”. 23. The Constitutional Court also held that it had been wrong for the Supreme Court to have reexamined the question of the lawfulness of the acquisition by company A. of the shares in question. To that end, the Constitutional Court observed that, in the case at hand, the Supreme Court had dealt with proceedings concerning the calling of an EGM and that the acquisition in question had taken place in the course of enforcement proceedings falling within the jurisdiction of the enforcement courts and having been concluded with final and binding effect. 24. On 28 May 2008 the Supreme Court ruled on the extraordinary appeal by the Prosecutor General for the second time. It again quashed the decision of 18 November 2004 and remitted the case to the District Court for re-examination. 25. The Supreme Court disagreed with the legal views of the Constitutional Court and considered that, thereby, the Constitutional Court had unconstitutionally interfered with its jurisdiction. 26. Company A. then challenged the judgment of the Supreme Court of 28 May 2008 by way of a complaint under Article 127 of the Constitution. 27. On 15 January 2009 the Constitutional Court quashed the judgment of 28 May 2008 and remitted the case to the Supreme Court for a fresh determination of the extraordinary appeal by the Prosecutor General. The Constitutional Court found the contested judgment to be arbitrary, devoid of adequate reasoning and contrary to the Supreme Court’s being bound by legal reasoning expressed by the Constitutional Court (see paragraph 47 in the “Relevant domestic law” section below). 28. On 23 November 2009 the Supreme Court ruled on the extraordinary appeal by the Prosecutor General for the third time. It again quashed the decision of 18 November 2004 and remitted the case to the District Court for reexamination. 29. The Supreme Court considered the judgment of the Constitutional Court of 15 January 2009 to be incomprehensible and pointed out that the handling of the petition at first instance had been chaotic and riddled with numerous irregularities. 30. Company A. challenged the Supreme Court’s judgment of 23 November 2009 under Article 127 of the Constitution. Its complaint (registered under file no. IV. ÚS 161/2010) was declared admissible on 8 April 2010 but the proceedings were eventually discontinued on 3 June 2010 further to the withdrawal by company A. of its complaint. 31. On 4 February 2008 company A. again sought judicial authorisation to call an EGM of the applicant company’s members. 32. On 30 March 2009 the District Court allowed a fresh petition, following which company A. called the EGM for 29 April 2010. 33. The applicant company was the defendant in those proceedings, being assisted by the State in the person of the Ministry, acting as an intervenor for the defendant (vedľajší účastník). 34. In its decision, the District Court relied, inter alia, on the judgment of the Constitutional Court of 11 December 2007 (see paragraph 21 above). 35. On 23 April 2009, upon motion of the State in the guise of the Ministry of the Economy, the Prosecutor General challenged the decision of 30 March 2009 in the Supreme Court by way of an extraordinary appeal on points of law. At the same time, the Prosecutor General requested that the legal effect of the challenged decision be suspended pending the outcome of the proceedings on the merits. 36. On 27 April 2009 the Supreme Court suspended the legal effect of the decision of 30 March 2009 pending the outcome of the proceedings. 37. Nevertheless, on 29 April 2009, the EGM took place. 38. On 20 May 2009 the Supreme Court quashed the decision of 30 March 2009 and remitted the matter to the District Court for reexamination. 39. The Supreme Court held, inter alia, that the legal views expressed by the Constitutional Court in its judgment of 11 December 2007 (see paragraph 21 above) had no directly binding legal effect upon the District Court. 40. On 9 September 2010, upon a complaint under Article 127 of the Constitution by company A., the Constitutional Court found a violation of the complainant’s right to a fair trial under Article 6 § 1 of the Convention, quashed the judgment of the Supreme Court of 20 May 2009 and remitted the matter to the Supreme Court for a new determination of the extraordinary appeal by the Prosecutor General. 41. The Constitutional Court found that there had been irregularities related to the serving of a copy of the Prosecutor General’s extraordinary appeal on company A. and that, in consequence, the Supreme Court could not be said to have ensured service of that appeal on company A. for observations, to the detriment of the latter’s procedural rights. 42. The further course and outcome (if any) of the proceedings in this matter have not been made known to the Court. 43. The above-mentioned pronouncements of the Constitutional Court, and in particular those in its judgment of 11 December 2007 (see paragraph 22 above), had been relied on by various parties in a number of transactions and lawsuits concerning shares in the applicant company. These include purported transfers of the litigious shares from company A. and the other alleged shareholders (see paragraph 9 above) to company B., incorporated in the Czech Republic, and then to company C., incorporated in the United States of America, and proceedings before the Bratislava Regional Court file nos. 27 Cb 77/2002, 7Cbs 86/2005, 7Cbs 84/05 and before the Košice Regional Court file no. 2Cb 1272/2002. 44. Article 4 provides that: “Mineral resources, caves, underground waters, natural healing sources and streams are the property of the Slovak Republic.” 45. The relevant part of Article 20 § 2 reads as follows: “An Act of Parliament shall determine which property other than that indicated in Article 4 of this Constitution, which is necessary for the safeguarding of the needs of society, development of the national economy and public interest, may only be owned by the State, a municipality or a specified legal entity.” 46. Under Article 127: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.” 47. Details concerning the status, structure and functioning of the Constitutional Court and procedures before it are defined in the Constitutional Court Act. Pursuant to its section 56(6): “Should the Constitutional Court quash a final and binding decision, measure or other interference and remit the matter for further proceedings, the body which issued the decision, decided on the measure or carried out other interference shall be bound to e-examine the matter and to decide anew. In such proceedings or process that body shall be bound by the legal view expressed by the Constitutional Court. 48. The Strategic Interests Act (Zákon o zabezpečení záujmov štátu pri privatizácii strategicky dôležitých štátnych podnikov a akciových spoločností) was adopted with effect from 14 September 1995 and remained in force until 12 October 1999. In the relevant part of section 2(3) it provides that: “Shares in [the applicant company], which are held or owned by the State or [the National Property Fund] cannot be subject to privatisation.” 49. The Privatisation Act (Zákon o podmienkach prevodu majetku štátu na iné osoby) regulates the conditions for transfer of property of the State to legal entities and individuals. Under its section 10(2) the privatisation of enterprises or their parts as well as of proprietary interests in legal entities having the character of “natural monopolies” must always be decided upon by the cabinet after the matter has been debated in Parliament. The applicant company is recognised as having the character of a “natural monopoly” (section 10(2)(i)). 50. The status, structure, organisation and functioning of joint-stock companies is regulated by the Commercial Code (Law no. 513/1991 Coll., as amended), in particular by sections (Oddiel) 1 and 5, chapter (Hlava) 1 of its Part (Časť) 2. 51. On 18 November 2008 and 20 April 2009 the Ministry of the Economy of the Slovak Republic lodged two applications with the Court, which were registered under application numbers 57425/08 and 22213/09 respectively. 52. In applications numbers 57425/08 and 22213/09 the Ministry was represented by Mr M. Krivák, a lawyer practising in Bratislava (for comparison see paragraph 1 above). 53. Relying on Article 34 of the Convention, the Ministry complained that the course and outcome of the proceedings leading up to the Constitutional Court’s judgment of 11 December 2007 (see paragraph 21 above) and a decision of 22 May 2008, by which the Constitutional Court had rejected the Ministry’s complaint against the judgment of 11 December 2007, were contrary to its rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 54. On 9 June 2009 the Court, sitting in the formation of a Committee under former Article 28 of the Convention, declared applications numbers 57425/08 and 22213/09 inadmissible as being incompatible ratione personae with the provisions of the Convention, within the meaning of Article 34.
| 0
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train
|
001-58847
|
ENG
|
FRA
|
GRANDCHAMBER
| 2,000
|
CASE OF MAAOUIA v. FRANCE
| 1
|
No violation of Art. 6
|
Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Pieter Van Dijk
|
9. The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with whom he had been living since 1983. 10. On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years' imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was released on 14 April 1990. 11. On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status. 12. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year's imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below. 13. On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the Court of Cassation dismissed that application. 14. In December 1992 the applicant sought judicial review of the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991, inter alia, on the ground that no notice had been served on the applicant requiring him to appear before the Deportation Board. That judgment became final on 14 March 1994 after being served on the Minister of the Interior. 15. On the strength of the administrative court's judgment of 14 February 1994 quashing the deportation order, the applicant applied to the Principal Public Prosecutor's Office at the Aix-en-Provence Court of Appeal on 12 August 1994 for rescission of the ten-year exclusion order made by the Nice Criminal Court on 19 November 1992. He contended that he was married to a French national and held a provisional residence permit. 16. In a letter of 6 July 1995 the applicant reminded the Principal Public Prosecutor's Office of the terms of his application for rescission. Noting that the application had been outstanding for some time, he asked the office to arrange for it to be heard and a ruling given. On 12 July 1995 the Principal Public Prosecutor's Office requested the Public Prosecutor's Office at the Nice tribunal de grande instance for its opinion on the merits of the application and any information that would assist the court in deciding whether the exclusion order should be rescinded. On 19 September 1995 Nice Central Police Station sent the Principal Public Prosecutor's Office the results of an inquiry concerning the applicant. 17. On 3 November 1997 the Principal Public Prosecutor's Office at the Court of Appeal informed the applicant that the case would be heard on 26 January 1998. On that date the Aix-en-Provence Court of Appeal granted the applicant's application and rescinded the exclusion order on the ground that the Nice Administrative Court had quashed the deportation order. 18. The applicant also sought to regularise his status with the immigration authorities. He initially obtained acknowledgment forms for applications for provisional residence permits (not work permits) for renewable three-month periods. On 4 September 1995, however, he was given a new three-month residence permit incorporating the right to seek employment. 19. On 14 September 1995 the applicant applied to the prefect for the Alpes-Maritimes département for a residence permit allowing him to live and work in France for a prolonged period, as he was married to a French citizen. On 9 April 1996 the applicant received notice of a decision dated 2 April 1996 refusing him a residence permit. He appealed to the Nice Administrative Court, but his appeal was dismissed on 27 September 1996. 20. The applicant appealed on 24 December 1996 to the Lyons Administrative Court of Appeal. On 29 August 1997 the President of that court ordered the transfer of the file to the Marseilles Administrative Court of Appeal – the court with jurisdiction – where the case is currently pending. 21. On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999). Recently he obtained a ten-year residence permit with the right to seek employment. 22. Article 27 of the Ordinance of 2 November 1945 as amended, concerning the conditions of entry and residence of aliens in France reads as follows: “Any alien who has evaded or attempted to evade the execution of an order refusing him leave to enter France, a deportation order or a removal order or who, having been deported or being subject to an exclusion order, re-enters the national territory without authorisation shall be liable to a term of imprisonment of from six months to three years. The same penalty may be imposed on any alien who fails to present to the relevant administrative authority travel documents enabling any of the measures mentioned in the first sub-paragraph to be executed or who does not have such documents and fails to supply the information necessary to allow such execution. The court may in addition issue an order banning a person so convicted from re-entering the territory for a period not exceeding ten years. A ban on re-entering the territory automatically entails the convicted person's removal from French territory, on completion of his prison sentence where appropriate.” 23. Article 702-1 of the Code of Criminal Procedure reads as follows: “Any person subject to a ban, forfeiture or incapacity or any measure whatsoever by operation of law following a criminal conviction or imposed as an additional penalty on sentencing may request the court which convicted him, or, if more than one, the last court to convict him, to end all or part of it, including provisions relating to the length of such ban, forfeiture or incapacity. ...” 24. Article 703 of the Code of Criminal Procedure reads as follows: “Applications by convicted persons for the ending of a ban ... shall contain particulars of the date of conviction and the places where the applicant has been living since his conviction or release. Applications shall be sent to the Public Prosecutor's Office or, as the case may be, the Principal Public Prosecutor's Office, which shall obtain all relevant information and, if appropriate, the opinion of the judge responsible for the execution of sentences, and shall refer the application to the relevant court. The court shall decide applications in private after considering the submissions of the prosecution. It shall hear the applicant or his or her lawyer, but may decide the application in their absence provided due notice has been served on them to attend ... A reference to the order ending all or part of a ban, forfeiture or incapacity ... shall be entered on the judgment of the court of trial or retrial and the convicted person's criminal record.”
| 0
|
train
|
001-57778
|
ENG
|
FRA
|
CHAMBER
| 1,992
|
CASE OF DE GEOUFFRE DE LA PRADELLE v. FRANCE
| 2
|
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
John Freeland
|
7. Mr Raymond de Geouffre de la Pradelle is a French national and practises as a lawyer (avocat). He lives in Paris, where he has his chambers. He owns an estate of about 250 hectares in the département of Corrèze. The River Montane crosses the property, which lies within the administrative districts (communes) of Saint-Priest-de-Gimel and Gimel. In order to provide an electricity supply for the château of Saint-Priest, which was on his land, he envisaged converting a long-disused hydroelectric dam into a self-contained miniature power-station. On 9 January 1976 Électricité de France gave its approval. On 21 January 1977 and 10 April 1979 the Council of the département of Corrèze consented in principle. 8. On 3 April 1980 the Minister for the Environment and the Quality of Life decided to set in motion proceedings to designate the land in the Montane valley as an area of outstanding beauty and of public interest; an area of 80 hectares was affected, most of it belonging to the applicant. The Prefect of Corrèze informed the applicant of this in a letter of 12 May 1980; pursuant to section 9 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest (see paragraph 18 below), which prohibits for a period of twelve months any alteration of the state of a site that is in the process of being designated, he also refused the application for permission to undertake hydroelectric works. 9. Together with the seven other property owners affected, the applicant was invited to submit any comments he might have on the designation proposal (section 5-1 of the Law of 2 May 1930 - see paragraph 18 below), and he indicated his objections in a letter of 22 May 1980 to the Prefect of Corrèze. 10. A public inquiry was opened by a prefectoral decision of 7 October 1980, which was notified personally to the parties concerned (Article 4 of Decree no. 69-607 of 13 June 1969 - see paragraph 19 below). Mr de Geouffre de la Pradelle sent the Prefect a statement of his objections in which he challenged the point of designating the land in the first place and suggested organising an inspection of the site by all the parties concerned. 11. On 4 July 1983, following a favourable report by the National Places of Interest Commission, the Prime Minister, after consulting the Conseil d’État, issued a decree (section 6 of the Law of 2 May 1930 -see paragraph 18 below) designating the Montane valley. On 12 July the Official Gazette (Journal officiel) published the following extract: "By a decree dated 4 July 1983, the area formed by that part of the Montane valley situated within the administrative districts of Gimel and Saint-Priest-de-Gimel is designated as one of the areas of outstanding beauty in the département of Corrèze." The present decree shall be notified to the Prefect, Commissioner of the Republic for the département of Corrèze, and to the mayors of the districts concerned. 12. On 13 September 1983 the Prefect of Corrèze served the full text of the decree at the applicant’s Paris home, together with a letter that read: "... I have the honour to notify to you by this letter the decree of 4 July 1983 designating the area formed by the Montane valley at Gimel and St-Priest-de-Gimel, which is partly situated on your property, as a conservation area. I should perhaps remind you that in the conservation area you are required to comply with the obligations laid down in the amended Law of 2 May 1930 on the conservation of places of interest, and in particular in sections 11, 12 and 13, which deal with transfers, alterations and the creation by agreement of any easements which might affect a designated place of interest. ..." 13. On 27 October 1983 the applicant, acting through his lawyer, applied to the Conseil d’État for judicial review of the decree of 4 July 1983. 14. As his main submission, the Minister for Town Planning, Housing and Transport argued that the application was "apparently made out of time"; as the designation decree did not contain any "special directions", the time within which any appeal had to be brought ran from its publication in the Official Gazette. 15. In his reply the applicant began by challenging the administrative authorities’ interprétation of Articles 6 and 7 of the decree of 13 June 1969 (see paragraph 19 below), according to which, in the absence of any special directions, the time within which any appeal had to be brought ran from the publication of the designation decision in the Official Gazette. He regarded the approach adopted by the administrative authorities as being a likely source of difficulties for members of the public. Could it reasonably be asked of people, he continued, to envisage exceptions being made to the normal rule, namely that the time allowed for appealing should begin to run from publication in the case of general regulatory decisions and from notification in the case of individual decisions? Where appeals and the procedures for bringing them were concerned, things should be simple. And if, as in the instant case, there was no good reason for making an exception, it was only right to retain a practice consistent with ordinary law. He added that, at all events, if the authorities’ interprÉtation were to prevail, Articles 6 and 7 would have to be considered unlawful as being contrary to the principle of equality in that an owner of property covered by such a decision would be less favourably treated than other persons affected by individual measures. In the alternative, he complained of the incompleteness and irregularity of the publication of 12 July 1983 (see paragraph 11 above), which did not enable the persons concerned to acquaint themselves with the exact scope of the designation. In his submission, the time allowed for appealing had begun to run only when the full text of the decree was made available to the public at the Corrèze prefecture; and the administrative authorities had not shown that the application registered on 27 October 1983 had been registered more than two months after the full text had been made available. Mr de Geouffre de la Pradelle alleged, lastly, that the impugned measure was a naked misuse of power designed to frustrate his modernisation scheme (see paragraph 7 above) and the exercise of the water rights associated with his status as a former producer of electricity. 16. On 7 November 1986 the Conseil d’État, accepting the submissions of the Government Commissioner (commissaire du gouvernement), declared the application inadmissible for the following reasons: "... By Article 49 of the Ordinance of 31 July 1945, ‘unless otherwise provided by legislation, an application to the Conseil d’État against a decision by an authority, court or tribunal within its jurisdiction shall be admissible only within a period of two months; this period shall run from the date of publication of the disputed decision unless it has to be notified or served, in which case the period shall run from the date of notification or service’. By the provisions of Article 6 of the decree of 13 June 1969, decisions whereby a natural monument or a place of interest is designated are published in the Official Gazette. Although, under Article 7 of the same decree, these decisions are notified to the property owners concerned where they contain special directions designed to alter the state or change the use of the site, and although the time within which any appeal to the courts must be brought runs in that case only from the notification of the designation decree or order, this latter provision applies only where it is necessary to give notice to the property owner to alter the state or change the use of the site. In other cases, however, the time in which any appeal to the courts has to be brought runs from the publication of the designation decision in the Official Gazette, even if after that publication the decision was notified to the property owner. It appears from the evidence that the impugned decree designating the area formed by the Montane valley in the département of Corrèze did not include any notice to the property owners to alter the state or change the use of the site. It follows that, in accordance with the provisions referred to above, the time within which any appeal to the courts against the said decree had to be brought ran from the date of its publication in the Official Gazette. An extract from the decree was published in the Official Gazette of 12 July 1983, together with the information that the full text could be consulted at the Corrèze prefecture. That being so, the applicant is not justified in contending that the publication was incomplete or irregular and consequently not such as to make time begin to run for the purposes of bringing an appeal. The application for review of the impugned decree was registered only on 27 October 1983, that is to say after the expiry of the time allowed for appealing under the provisions of the decree of 13 June 1969 that have been examined above. In order to overcome the fact that his application was out of time, Mr de Geouffre de la Pradelle maintained that these provisions were unlawful because they gave rise to discrimination to the detriment of the property owners of designated places of interest, seeing that these property owners did not have the same time-limits for appealing against designation decisions as other recipients of individual decisions. But a decision to designate an area of outstanding beauty is not in the nature of an individual decision. Accordingly, the ground based on the argument that the impugned decree infringed the rules on the notification of individual acts and decisions fails. It follows from all the foregoing considerations that the application is out of time and therefore inadmissible. ..." 17. In November and December 1986 Mr de Geouffre de la Pradelle approached the Architect’s Department of the département of Corrèze to seek help with restoration of the site, which had been devastated by the exceptionally high winds of November 1982. His application was unsuccessful. 18. In their current form the relevant provisions of the Law of 2 May 1930 provide: PART II - LISTING AND DESIGNATION OF NATURAL MONUMENTS AND PLACES OF INTEREST "In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view. ... Listing shall be effected by means of an order made by the Minister for Cultural Affairs. A decree issued after consultation of the Conseil d’État shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner. On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months’ notice of their intention." "Where it is proposed to designate a natural monument or place of interest belonging wholly or in part to persons other than those listed in sections 6 and 7, those affected shall be invited to submit their comments according to a procedure which shall be laid down in a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest forming part of the public or private property of the State shall be designated by means of an order made by the Minister for the Arts if there is agreement with the minister within whose field of responsibility the natural monument or place of interest lies and with the Minister of Finance. ... If there is no such agreement, designation shall be effected by means of a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest forming part of the public or private property of a département or an administrative district (commune) or belonging to a public institution shall be designated by means of an order made by the Minister for the Arts if the public authority that owns it has consented. Otherwise designation shall be effected, after the opinion of the National Commission on Natural Monuments and Places of Interest has been sought, by means of a decree issued after consultation of the Conseil d’État." "A natural monument or place of interest belonging to any person other than those listed in sections 6 and 7 shall be designated by means of an order made by the Minister for Cultural Affairs, after the opinion of the département’s Committee on Places of Interest, Views and Landscapes has been sought, if the owner consents. The order shall lay down the designation conditions. Failing the owner’s consent, the designation shall be effected after the opinion of the National Commission has been sought, by means of a decree issued after consultation of the Conseil d’État. Designation may confer on the owner the right to compensation if it entails any alteration of the state or change in the use of the site causing direct, pecuniary and certain damage. ..." "From the day on which the Department of Cultural Affairs notifies the owner of a natural monument or place of interest of its intention to have it designated, no alteration may be made to the state or appearance of the site for a period of twelve months unless special permission has been granted by the Minister for Cultural Affairs, except for the day-to-day agricultural use of rural land and the normal upkeep of buildings. ..." "Designated natural monuments and places of interest may not be demolished nor may their state or appearance be altered `unless special permission has been granted’." 19. The decree of 13 June 1969 provides, inter alia: "Listing orders shall be notified by the Prefect to the owners of natural monuments or places of interest. However, where the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3. Recourse shall likewise be had to a public announcement where the authorities are unable to ascertain the identity or the number of the property owners." "The public announcements provided for in Article 2 ... shall be made at the instance of the Prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication. The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices; ... ..." "The inquiry provided for in section 5-1 of the Law of 2 May 1930 before any designation decision is taken shall be organised by means of a prefectoral order ... This order shall specify the times and places at which the public may inspect the designation proposal, which shall contain: 1. an explanatory notice indicating the purpose of the conservation measure, together with any special designation directions; and 2. a plan showing the boundaries of the conservation area. The order shall be published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. It shall further be published in these districts by being displayed on notice- boards; the mayor shall certify that such publication has taken place." "For a period running from the first day of the inquiry to the twentieth day following its close, any person affected may, by means of a registered letter with recorded delivery, send comments to the Prefect, who shall inform the département’s Committee on Places of Interest ... During the same period and by the same means the property owners concerned shall make known to the Prefect, who shall inform the département’s Committee on Places of Interest..., their objections or their consent to the designation proposal. At the end of this period any property owner who has remained silent shall be deemed to have withheld consent. Where, however, the order that is the subject of the inquiry has been notified to the property owner in person, his silence at the end of the period shall be deemed to imply consent." "The designation decision shall be published in the Official Gazette." "Where a designation decision contains special directions that would alter the state or change the use of the site, it must be notified to the property owner. This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (third paragraph) of the Law of 2 May 1930." 20. The relevant provisions of the circular of 19 November 1969 are as follows: "... Law of 28 December 1967 made amendments to the Law of 2 May 1930 regarding the procedure for listing and designating places of interest, the rights and obligations of those affected as a result of listing or designation decisions and the penalties for infringement of conservation measures. Decree no. 69-607 of 13 June 1969 laid down the conditions for implementing some of the new provisions introduced by that Law. The purpose of the present circular is to define the scope of the Law of 28 December 1967 and the means of implementing it. I. Listing procedure and effects of listing ... Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed. There are now two possible procedures: - either individual notification, in accordance with the arrangements currently in force in all cases; or - general publication (public display and publication in two newspapers), to which the Prefect resorts when the number of property owners concerned is greater than a hundred - as with places of interest covering a large area - or when one or more property owners have not been identified. This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented. ... II. Designation procedure and effects of designation Because designation imposes substantial obligations on property owners, it will henceforth be preceded by an administrative inquiry open not only to the property owner or owners but to any interested member of the public. ... This public-inquiry procedure shall be set in motion whenever a designation proposal is being prepared. It is still desirable that the designation proposal should be notified to property owners in person where they are known and are few in number or where they will have to be subject to special directions; but it is not compulsory. ... Lastly, it is important to note that individual notification of the designation decision continues to be compulsory (1) in order that special directions designed to alter the state or change the use of sites may be enforceable; and (2) generally, in order that the penalties provided for in section 21 may apply. ..."
| 1
|
train
|
001-106592
|
ENG
|
POL
|
CHAMBER
| 2,011
|
CASE OF MULARZ v. POLAND
| 4
|
Violation of Art. 6-1
|
George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
6. The applicant was born in 1931 and lives in Rzeszów. 7. On 18 April 1994 the Rzeszów District Office Director (Kierownik Urzędu Rejonowego; hereafter: “the District Office Director”) awarded a certain Z.R. damages for the inconvenience and damage resulting from the temporary use of her property by the public energy provider company based in Rzeszów. 8. On 21 October 1994 the Rzeszów Governor (wojewoda) quashed the District Office Director’s decision and remitted the case. 9. On 31 January 1995 the District Office Director again confirmed the award of damages to Z.R. His decision was upheld by the Rzeszów Governor on 9 May 1995. 10. On 18 October 1996 the Supreme Administrative Court (Najwyższy Sąd Administracyjny) quashed the Governor’s decision. 11. On 28 February 1997 the Rzeszów Governor quashed the District Office Director’s 1995 decision and remitted the case. 12. On 1 March 1997 Z.R. died. 13. On 8 April 1997 the Rzeszów District Court (Sąd Rejonowy) declared that Z.R.’s estate had been inherited by the applicant. 14. On 16 May 1997 the District Office Director stayed the proceedings due to Z.R.’s death. The proceedings were resumed on the applicant’s request on 16 June 1997. 15. On 30 October 1997 the District Office Director again confirmed the award of damages to the applicant. The applicant appealed against this decision, alleging certain shortcomings in the procedure and complaining that the amount of the award had been insufficient. 16. On 8 January 1998 the Rzeszów Governor referred the case to the President of the Office for Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast; hereinafter: “the President of the OHTD”) as the competent authority. On 5 February 1998 the President of the OHTD referred the case back to the Rzeszów Governor. 17. On 23 February 1998 the Rzeszów Governor quashed the District Office Director’s 1997 decision. As a result of a change to the rules on competence, on 30 June 1998 the Rzeszów Governor awarded the applicant damages, acting as the organ of first-instance. 18. On 15 July 1999 the President of the OHTD quashed the Rzeszów Governor’s decision and remitted the case to the Mayor of Rzeszów (Prezydent Miasta Rzeszowa) as the competent authority. The applicant appealed. 19. From 3 December 1999 to 14 July 2000 the proceedings were stayed pending the examination of the applicant’s appeal by the Supreme Administrative Court. 20. On 5 May 2000 the Supreme Administrative Court dismissed the applicant’s appeal. 21. On 20 November 2000 the Mayor of Rzeszów awarded damages to the applicant. This decision was upheld by the Podkarpacki Governor on 27 March 2001. The applicant appealed, arguing that the awarded amount had been too low and that the Mayor had failed to give a sufficient justification for his decision. Pending the examination of the appeal by the Supreme Administrative Court, the proceedings were stayed. 22. On 2 December 2002 the Supreme Administrative Court quashed the Podkarpacki Governor’s decision. 23. On 24 February 2003, the Podkarpacki Governor quashed the decision given by the Mayor of Rzeszów. 24. On 12 August 2003 the Mayor of Rzeszów once again awarded damages to the applicant but the Podkarpacki Governor quashed this decision on 27 November 2003. 25. On 20 September 2004 the Mayor of Rzeszów once more awarded damages to the applicant. This decision was quashed by the Podkarpacki Governor on 28 January 2005. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal filed with the Rzeszów Regional Administrative Court (Wojewódzki Sąd Administracyjny). 26. On 17 January 2006 the Rzeszów Regional Administrative Court dismissed the applicant’s appeal against the decision of the Podkarpacki Governor. 27. On 26 September 2006 the Mayor of Rzeszów once again awarded damages to the applicant. On 22 January 2007 the Mayor’s decision was upheld by the Podkarpacki Governor. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal. 28. On 31 May 2007 the Rzeszów Regional Administrative Court rejected the applicant’s appeal as having been lodged out of time. 29. On 18 June 2007 the applicant requested the Rzeszów Regional Administrative Court to grant him leave to appeal out of time. On 4 July 2007 the court dismissed his request. The applicant appealed. 30. On 15 October 2007 the Supreme Administrative Court dismissed the applicant’s complaint. 31. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005. 32. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005V and Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. 33. The Government provided the Court with a copy of a judgment handed down on 20 April 2009 by the Kraków Court of Appeal, which had awarded just satisfaction in respect of the excessive length of civil proceedings to the plaintiff, a certain K.M., on the basis of Articles 417 and 448 of the Polish Civil Code, concerning the protection of personal rights. In its judgment, the Court of Appeal considered that the excessive length of the civil proceedings for the distribution of inheritance, which had been pending for over twenty years, had caused the applicant, an elderly person, considerable stress resulting in moral suffering and entitling her to non-pecuniary damages. Consequently, it modified the lower court’s judgment and awarded K.M. the sum of PLN 70,000.
| 1
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train
|
001-80364
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF KOÇAK v. TURKEY
| 4
|
Violation of Art. 3
|
Nicolas Bratza
|
11. The applicant was born in 1965 and lives in Istanbul. 12. On 12 December 1993 the applicant and five other persons were arrested by police officers from the anti-terror branch of the Istanbul Security Directorate in the house of one of the arrestees, M.O., in the course of a police operation carried out against the PKK. 13. Between 12 and 27 December 1993 the applicant was detained in the Istanbul Security Directorate. The applicant alleges that, while there, he was blindfolded and forced to listen to the cries of other detainees being tortured. He was threatened with torture and forced to admit that he was a member of the PKK. When he refused to do so, he was stripped naked, immersed in cold water and beaten with a truncheon on various parts of his body, including the soles of his feet. He was then forced to walk on a salt-strewn floor. His hands were tied with a blanket, he was strung up by his arms and subjected to a form of torture known as “Palestinian hanging”. In this position, electric shocks were administered to his genitals, his fingers and feet. He was subsequently coerced into signing a statement, of which he only signed the first two pages. During his detention in police custody the applicant was kept in a cell, deprived of food and water and prevented from sleeping. 14. On 27 December 1993 the applicant was examined by a medical expert from the Istanbul branch of the Forensic Medicine Institute who observed two ecchymosises of 2-3 cm in diameter on both sides of the applicant's hips and an allergic dermatitis on his right hand. The doctor concluded that the applicant's life was not endangered and that the injuries rendered him unfit for work for one day. 15. On the same day the applicant was brought before the public prosecutor and a single judge at the Istanbul State Security Court. On both occasions the applicant denied the accuracy of the statements that had been taken from him by the police. He contended that he had signed the statements under duress. The judge at the Istanbul State Security Court ordered the applicant's detention on remand. The applicant was then transferred to Sağmalcılar prison. 16. On 30 December 1993 the applicant filed a petition with the Istanbul State Security Court. In his petition, the applicant reiterated that he had been tortured while in police custody and that his statements had been taken under duress. He finally requested to be released. 17. On 14 January 1994 the applicant was examined by the director of the Eyüp branch of the Forensic Medicine Institute. The medical expert observed the following: “... presence of pain in the shoulders, the armpits and the neck, a yellow ecchymosis on the right armpit, an ecchymosis of 3x2 cm on the upper part of the right arm, widespread ecchymotic area and abrasions on both arms and wrists, hyperaemic lesions of 3x2 cm and 2x1 cm on the upper part of the right hand and on the left hand, widespread pain in the hands, widespread ecchymotic area of yellow colour on both gluteal regions on the back, ecchymotic area on the groin, pain in the testicles, pain during defecation, swollen area on the right leg and foot, a yellow ecchymosis and swollen area on the sole of the right foot, pain in the left leg, a yellow ecchymosis on the malleolar region, a yellow ecchymosis and swollen area on the sole of the left foot, several old wounds on both wrists and ankles...” The medical expert considered that the applicant's life was not endangered and that the injuries rendered him unfit for work for seven days. 18. On 11 July 1994 and 27 March 1995 the applicant filed further petitions with the Istanbul public prosecutor's office alleging that he had been subjected to illtreatment while in police custody. 19. On an unspecified date the Istanbul public prosecutor initiated an investigation into the applicant's allegations of ill-treatment. 20. On 5 June 1995 the public prosecutor issued a decision of nonprosecution with regard to R.A., the director of the anti-terror branch of the Istanbul Security Directorate, holding that there was insufficient evidence to bring criminal proceedings against him. The public prosecutor further noted that criminal proceedings had been brought against Ö.D. and Ü.K., police officers from the anti-terror branch of the Istanbul Security Directorate, under Article 243 of the Criminal Code. The police officers were accused of torturing the applicant in order to obtain a confession from him. 21. On 29 June 1995 the applicant filed an objection against the decision of 5 June 1995. 22. On 4 August 1995 the Beyoğlu Assize Court dismissed the applicant's objection. 23. On 20 December 1995 the Istanbul Assize Court acquitted the accused police officers, holding that there was insufficient evidence to conclude that the accused had ill-treated the applicant while in police custody. 24. The judgment of 20 December 1995 became final as the public prosecutor did not lodge an appeal against it. 25. Following his arrest, the applicant surrendered a 7.65 mm calibre pistol and seven bullets to the police officers. Furthermore, according to the official documents, several weapons and organisational documents were found and seized in the course of the police operation. 26. On 4 February 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with twenty-nine other persons. The public prosecutor charged the applicant under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713 with membership of the PKK. 27. On 26 November 1996 the Istanbul State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment. 28. In its judgment, the first-instance court noted that the applicant had been arrested in the house of M.O., along with other suspects and that he had subsequently surrendered a 7.65 mm calibre pistol and seven bullets to the police. The court further stated that one of the applicant's co-accused, M.D., had maintained before the public prosecutor that he had been involved in PKK activities together with the applicant. The court also took into account the statements of three other accused, who had contended before the public prosecutor that the applicant had collected money on behalf of the PKK. The Istanbul State Security Court finally noted that the applicant had maintained during the hearings that he supported the ideology of the PKK and believed that the PKK was the legitimate representative of Kurdistan. Basing its judgment on the aforementioned elements, the Istanbul State Security Court concluded that the applicant was a member of the PKK. 29. The judgment of 26 November 1996 became final in respect of the applicant since he did not appeal against it. 30. On 26 April 2003 the applicant was conditionally released from prison. 31. A description of the relevant domestic law at the material time can be found in Sakık and Others v. Turkey (judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, § 1828), Elçi and Others v. Turkey (nos. 23145/93 and 25091/94, §§ 573 and 575, 13 November 2003) and Kolu v. Turkey (no. 35811/97, §§ 42-44, 2 August 2005).
| 1
|
train
|
001-114969
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,012
|
M.I. AND OTHERS v. FINLAND
| 4
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney
|
1. The seven applicants, Mrs M.I., her adult son and her five other minor children (“the applicants”) are Finnish nationals. The President of the Section decided of his own motion to grant the applicants anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). The applicants, who had been granted legal aid, were represented by Ms Leeni Ikonen, a lawyer practising in Kerava, and by Ms Anu Suomela. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant mother, born in 1968, and her husband were married in 1987. They have six children: D., born in 1987, S., born in 1996, I., born in 1997, R., born in 1999, L., born in 2003 and B., born in 2005. In July 2005 the applicant mother suffered a stroke which paralysed her left side. She was able to return home from hospital only nine months later. During that time her husband took care of the children and the home. He continued to do so even after her return as she could hardly walk and usually used a wheelchair. 5. In November 2005 the oldest child D. reached the age of majority. 6. In July 2006 the husband was killed in a car accident. The applicant mother and the children lived at first with her parents but moved back to their home in January 2007. As of 1 December 2006 and during 2007 the applicant mother received considerable help from the social services. A team of 4 to 6 social workers worked with the family practically round the clock. 7. On 23 August 2007, a family worker made an evaluation of the situation in the applicant’s family. According to the evaluation, the applicant mother used a wheelchair whenever she moved from one place to another and managed to get into and out of the wheelchair independently. She was quite capable of writing but needed help with opening envelopes. As to everyday routines, the report noted that the applicant mother could eat her food independently if it was already portioned. For dressing and undressing she needed verbal support and also physical help and she could not button or zip up her clothes. She was able to go to the toilet independently. When washing herself she needed help only with washing her back and feet and rinsing her hair. Regarding the applicant mother’s understanding and memory, the evaluation stated that the applicant mother lived in an imaginary reality and could not see the real situation of her family. She misunderstood things and could even understand some things quite in reverse. The applicant mother had problems with her memory and sense of time: she confused days of the week and the children’s schooldays and could not always remember when she had washed herself last, for example. The family worker reported that the applicant mother’s mental ability varied from day to day and she easily became anxious. 8. The family workers found their work in the family challenging and tiring in all respects because each of the five youngest children showed various symptoms due to their traumatic past. The applicant mother’s parents took an active part in the everyday life of the family, and this caused occasional conflicts. The family workers also experienced threats from the applicant mother’s eldest child, D., who disturbed their work. The family workers had said that they would not continue working with the family until the problems were solved. 9. On 9 October 2007 the child welfare authorities decided, as a support measure, to place the children in foster care, either in family care or in support families, until 20 October 2007. 10. As there were a lot of problems in the family, on an unspecified date the social services asked a private firm to evaluate the parenting in the family. 11. On 14 December 2007 the five minor children were taken into emergency public care. These decisions were reasoned by the fact that the social workers could no longer cope with the family. The children were also afraid of their grandparents and feared that they would be kidnapped and taken abroad by them. The grandparents treated the children unequally and used corporal punishment. The grandfather drank a lot of alcohol. The children showed excessive sexual behaviour, and they had all wanted to stay in their support families rather than returning home. According to the preliminary results of the on-going evaluation by the private firm, the applicant mother was unable to meet the emotional needs of the children and they had suffered from insecurity for a long time. The children violated each other’s limits sadistically but the applicant mother did not intervene. Before taking the decisions, S., I. and R. had been heard and none of them opposed the taking into public care. All the children were placed in different families. 12. On 20 December 2007 the social welfare authorities received the evaluation made by the private firm. According to the evaluation, the children were, inter alia, left on their own, even when in the company of their mother. They tried as individuals to obtain attention and care from any adult but their mother was not the primary option for any of them. The mother was mentally and physically dependent on the social workers and she was not able to cope with the children’s aggression or other feelings. She was not in practice capable of adequate parenting. The social workers had to bear too much responsibility for the children’s safety. It was more important to provide an adult to care for each child than to keep all the siblings together. 13. By letter dated 22 December 2007 the applicant mother sought rectification of this decision and proposed that the grandparents could help her to take care of the children. 14. On 31 December 2007 the emergency taking into public care was maintained by the child welfare authorities. 15. On 14 January 2008 the Director of social services submitted a request to the Administrative Court (hallinto-oikeus, förvaltnings-domstolen) for a care order for each of the children. 16. By letter dated 15 February 2008 the applicant mother appealed to the Administrative Court. 17. On 20 February 2008 the request for rectification was rejected by the child welfare authorities. All of the children had integrated well in their foster families and were concerned about their possible return home. Taking into account what the children had said about their grandparents, they could not be considered as persons with whom the children could be placed. 18. On 13 March 2008 the Administrative Court held an oral hearing in the case. The oldest children S. and I. were heard separately by the court and it met the youngest children, R., L. and B., in their respective foster homes. 19. On 28 March 2008 the Administrative Court confirmed the taking into public care and the placement of the children. Two of the children were placed in the same foster home. The court found that the taking into public care was needed due to the lack of parenting and the circumstances at home. The lack of care endangered seriously the health and development of the children. The aid provided in different forms by the social workers had proved to be insufficient. Taking the children into public care was in their best interest. 20. By letters dated 10 April and 6 May 2008 the applicant mother appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting that an oral hearing be held. She claimed that the authorities had neglected to evaluate the role of the grandparents who were able and willing to take care of the children. The grandmother had previously worked in a children’s day-care centre. Also, her brother had promised to help her with the children. 21. On 16 April 2008 the emergency public care order was continued in the best interest of the children. 22. On 30 April 2008 the local social welfare authority requested the Local Registry Office (maistraatti, magistraten), in accordance with section 22 of the Child Welfare Act, to appoint the children a guardian. From the documents submitted by the applicants it appears that such a guardian was appointed. 23. On 23 June 2009 the Supreme Administrative Court rejected the request for an oral hearing as well as the appeal. Concerning the former, it found that the Administrative Court had already organised an oral hearing and that a new oral hearing was not needed to clarify the matter. As to the appeal, it found that the criteria for taking into public care had been fulfilled and that there was no reason to change the outcome reached by the Administrative Court. 24. On 22 June 2009 the child welfare authorities decided to change the placement of the youngest child. This decision was based on the fact that the former foster family was exhausted and could no longer continue to cope with the youngest child. 25. The applicant mother appealed against this decision to the Administrative Court, demanding that the child be placed with her. She also requested that an oral hearing be held. She referred, inter alia, to the Convention and demanded that the authorities actively work to reunite the family. 26. On 20 October 2009 the Administrative Court rejected the appeal. It found that it was not possible to place the child with his mother as he had no affectionate relationship with his mother. As the same difficulties as before still existed, it was not in the best interest of the child to place him with his mother. It was in his interest to be placed in another foster home which could provide him a model of normal family life. 27. By letter dated 11 November 2009 the applicant mother appealed against this decision to the Supreme Administrative Court. 28. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal, confirming the reasoning of the Administrative Court in its decision of 20 October 2009. 29. The children have been able to meet each other only a couple of times during their placement. Since being taken into public care, they have been able to meet their mother only occasionally under supervision. There were no visits between February and May 2008. 30. On 11 February 2009 the child welfare authorities decided that none of the children could meet their mother or otherwise contact her at all during the period from 9 February to 31 May 2009. This decision was reasoned by the fact that forensic psychiatric examinations of the children were on-going and that they required the creation of stable and clear conditions. No meetings were held during the validity of the decisions. Letters or other mail or confidential messages sent by the children or addressed to them were withheld. The applicant mother appealed against these decisions to the Administrative Court. 31. On 8 and 19 May 2009 the Administrative Court rejected the applicant mother’s appeals against the decisions of 11 February 2009. It found that contact restrictions were necessary due to the on-going forensic psychiatric examinations of the children and were in their best interest. 32. On 16 June 2009 the child welfare authorities decided that, during the period from 9 June to 31 October 2009, three of the children, S., I. and L., could meet their mother every six weeks in the foster home for one and a half hours at a time in the presence of the foster parent. The meetings for the two other children, R. and B., were cancelled until 31 October 2009. The applicant mother appealed against these decisions to the Administrative Court. 33. On 15 October 2009 the child welfare authorities decided that, during the period from 5 October 2009 to 31 January 2010, the youngest child B. could meet his mother under supervision for one and a half hours at a time, every three weeks. The applicant mother appealed against this decision to the Administrative Court. 34. On 15 October 2009 the child welfare authorities also prohibited contact between B. and his grandparents until 31 January 2010. 35. On 20 October 2009 the Administrative Court decided the applicant mother’s appeal against the decisions of 16 June 2009. As concerned S., I. and L., the court quashed the decisions of 16 June 2009, finding that there had been no reasons to restrict contact of the applicant mother with S., I. and L. between 9 June and 31 October 2009. The court considered, however, that it had been in the best interest of the children to implement the visits under supervision. As concerned R., the court noted that he had repeatedly expressed his unwillingness to meet with the applicant mother. Given that R. was already 10 years old, his opinion had to be taken into account. R. had had severe symptoms and his behaviour had changed considerably after having met with his family members. It was thus in the best interest of R. to have the underlying reasons for his symptoms examined so that adequate therapy could be provided. Therefore, the contact restrictions were necessary until 31 October 2009. Finally, as concerned the youngest child B., the court noted that his excessively sexual behaviour called for forensic psychiatric examination. It was in his best interest to have the underlying reasons for his symptoms examined, and it was therefore necessary to keep his circumstances stable during the examinations. Interaction with his mother might have disturbed his physical and mental development and jeopardised the purpose of the foster care. Therefore, the court found that the contact restrictions applicable until 31 October 2009 had been necessary. 36. On 21 October 2009 the child welfare authorities decided to restrict the contact between the second youngest child L. and his mother until 28 February 2010 on the ground that contact would endanger his health, development and safety as well as the fulfilment of the purpose of the foster care. The applicant mother appealed against this decision to the Administrative Court. 37. On 26 October 2009 the child welfare authorities also prohibited contact between L. and his grandparents until 28 February 2010. 38. On 29 October 2009 the child welfare authorities decided to continue restricting the contact between R. and his mother between 29 October 2009 and 31 March 2010 on the same grounds as earlier and because R. himself opposed meetings. On the same date the child welfare authorities also prohibited contact between R. and his grandparents until 31 March 2010. 39. On 6 November 2009 the child welfare authorities ordered that meetings between S. and I. and their mother were to take place under supervision. This decision was valid from 6 November 2009 to 31 January 2010. On the same date the child welfare authorities also prohibited contact between S. and I. and their grandparents until 31 January 2010. 40. On 4 March 2010 the Administrative Court rejected the applicant mother’s appeals against the decisions of 15 and 21 October 2009. 41. On 6 August and 23 December 2010 the restrictions concerning the contacts between the applicant mother and L. were continued for the period of 2 July 2010 to 31 May 2011. An additional ground for this was that contact with the mother could endanger L.’s health because the meetings between them might cause psychological stress to L. and thus risk worsening his psychotic symptoms. The applicant mother apparently appealed only against the decision of 6 August 2010 to the Administrative Court which rejected her appeal on 31 December 2010. It is not known whether she appealed further against this decision. 42. On 27 May 2011 the restrictions on contact between the applicant mother and R. were further continued for the period from 23 March to 7 September 2011 due to R.’s child psychiatric examinations. During that period R. met with his mother on 18 April and 29 August 2011. The applicant mother appealed against this decision to the Administrative Court where it is apparently still pending. 43. On 14 June 2011 the Supreme Administrative Court rejected the applicant mother’s appeal against the decisions of the Administrative Court on 8 and 19 May 2009, 20 October 2009 and 4 March 2010. The court found restrictions imposed between 9 February and 31 May 2009 in respect of all the children justified. As concerned the visits between 9 June and 31 October 2009, the court noted that the dispute concerned only, as far as S., I. and L. were concerned, whether those meetings needed to be held under supervision. The court noted that, on 9 June 2009, the applicant mother had agreed on a visiting schedule, according to which she had met S. and I. in the foster home and L. in the foster family at approximately six week intervals. Visits had been supervised by the staff of the foster home or a foster parent. The applicant mother had also had the possibility to telephone S., I. and L., and they had had a possibility to make supervised telephone calls to the applicant mother. In addition, S. and I. could send her letters. The court thus found that there had been legitimate reasons to keep the visits supervised. As concerned R., the court found that the restrictions on contact had been legitimate as such restrictions had been necessary due to R.’s forensic psychiatric examinations. Taking into account R.’s age, his severe symptoms and the fact that he had repeatedly expressed his unwillingness to meet his mother, the restrictions on contact had been essential for his treatment. Finally, as concerned B., the court found that the restrictions on contact between B. and his mother had been essential for his treatment. 44. The supervised meetings between the applicant mother and S. and I. have been quite regular. Since 2010 there have also been regular supervised meetings with B. Since 11 February 2009 the applicant mother has apparently met R. five times and L. eight times under supervision. The last meeting with L. was on 9 January 2010. The oldest child D. has apparently only been able to meet his five younger siblings once since the emergency care order. 45. On 17 July 2008 the social worker responsible for the children’s affairs requested the police to investigate whether the five minor children of the family had been sexually abused. Suspicion had been raised during the family work as some of the children had shown excessively sexual behaviour. Even after their placement, such behaviour had become more pronounced when the children had met with their mother or other relatives. 46. The criminal investigation concerning the alleged sexual abuse of the children was finalised in September 2010, and the case was transmitted to the public prosecutor. 47. On 21 April 2011 the public prosecutor brought charges against the grandmother and the grandfather for having assaulted the children. The prosecutor decided not to bring charges against the applicant mother for aggravated sexual abuse of the children. 48. On an unspecified date the applicant mother requested the child welfare authorities to terminate the care or, alternatively, change the placement of L. and R. As concerned L., she stated in her application that L.’s psychological well-being had been deteriorating in the current foster family. Also the cooperation between her and the foster family had been complicated. As far as R. was concerned, the applicant mother stated in her application that the foster parent had isolated R. from his biological family and manipulated him. 49. On 7 March 2011 the Director of Social Services rejected the applicant mother’s application. She found in her decisions that the applicant mother’s situation had not changed and that the legitimate reasons for care continued to exist in relation to both L. and R. Terminating the care at this stage or changing their placement would not have been in the best interest of either of the children. 50. By letter dated 31 March 2011 the applicant mother appealed against these decisions to the Administrative Court where they are apparently still pending. 51. Section 47 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 417/2007) stipulates, as regards the duration and termination of care, as follows: “Taking into care is valid indefinitely. When the need for care and substitute care under section 40 no longer exists, the municipal officeholder determined under section 13(1) must make a decision on terminating the care when the social worker responsible for the child’s affairs has prepared the case. Care must not be terminated even if the conditions for taking a child into care no longer exist if termination is manifestly not in the interests of the child in the manner referred to in subsection 3. The social worker responsible for the child’s affairs must assess the conditions for continuing care when the client plan is reviewed, when a child or custodian applies for termination of care or when it otherwise proves necessary. When a child’s interests are being considered in a case concerning termination of care, in addition to what is said in section 4(2), the following must be taken into account: the duration of substitute care, the quality of the affection between the child and the party providing substitute care, interaction between the child and the parents and the child’s views. Care is terminated when the child concerned reaches 18 years of age.” 52. According to section 62 of the Act, the rights of children in substitute care to keep in contact with their parents or other persons close to them may be restricted by a decision if it has not been possible to reach agreement on contact and if: “1) the contact endangers the purpose of a child’s substitute care and the restriction is necessary for the child’s care and upbringing; or 2) the contact endangers a child’s life, health, development or safety; or 3) the restriction is necessary because of the safety of the parents or other children in the family or the family care home or other children or personnel in an institution; or 4) a child of 12 years of age or more opposes contact; the same applies to children under 12 years of age if they are sufficiently developed for their views to be taken into account.” It is possible 1) to restrict children’s rights to meet their parents or other people close to them; 2) to restrict children’s rights to keep in contact with persons close to them by telephone or using other devices or means of contact; 3) to read and withhold private letters sent by children or addressed to them or other similar confidential messages or inspect and withhold some other delivery; and 4) for the place of substitute care to confiscate for the duration of the restriction all communication means or equipment held by the children concerned or restrict their use. Restriction of contact can only be applied to the extent necessary in each individual case to achieve the purpose laid down in law. 53. According to section 63 of the Act, “A decision must be made concerning restrictions on contact referred to above in section 62 which must be issued for a fixed term and last for a maximum of one year at a time. The decision must include the reason for the restriction, the persons restricted, the kind of contact the restriction concerns and to what extent the restriction is enforced. Decisions on restricting contact are made by the officeholder ... Restrictions on contact must be lifted as soon as they are no longer necessary in the manner referred to in section 62.”
| 0
|
train
|
001-103690
|
ENG
|
LTU
|
CHAMBER
| 2,011
|
CASE OF LALAS v. LITHUANIA
| 4
|
Violation of Art. 6-1
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto
|
5. The applicant, Mr Marius Lalas, is a Lithuanian national who was born in 1978. The place where the applicant lives is unknown, as he is in hiding (see paragraph 23). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 19 February 2003 the Kaišiadorys District Court convicted the applicant, together with his accomplice M., of attempted drug dealing in large quantities (Articles 16 § 2 and 232-1 § 5 of the Criminal Court as then in force). The court established that the offence had been disclosed using a “criminal conduct simulation model” (“the model”), which had been authorised against M. by the Prosecutor General on 29 May 2002. 8. The court found that in June 2002 (4 June according to the Government) V., a policeman acting as an undercover agent under the model, had approached M. and, during their conversation on various topics, asked where he could get psychotropic drugs. M. had said that he could procure and sell samples to the policeman straight away and more thereafter if the samples were good. The samples would cost from 15 to 21 Lithuanian Litai (“LTL”) (about 5 euros) per gram, depending on the quantities required. He had refused to lower the price for the first transaction, but suggested that it might be cheaper if V. needed a regular supply. However, the officer had replied that he could not wait and they had agreed to telephone each other on the matter. V. had to undergo a hospital intervention. Thereafter, it was M. who contacted V., suggesting a meeting so that he could provide V. with drug samples. 9. On an unknown date, M. had contacted the applicant with a request to obtain the drugs (0,5 kg), as V. liked the samples. The applicant had agreed to procure the narcotics. The Government contended that the applicant had contacted an acquaintance who had provided him with drugs. 10. On 21 June 2002, the applicant and M. had sold V. a few samples. The Government contended that the applicant had provided just one sample of amphetamines and stressed that he had stayed in the car while M. went to V.'s car. 11. On 23 June, V. had telephoned M., requesting more drugs for a total sum of USD 3,000. On 25 June the applicant and M. had provided V. with 250 grams of amphetamines. The applicant and his accomplice had been arrested immediately. Both had pleaded guilty to the attempted drug offence. 12. The court questioned V. as an anonymous witness in private, outside the courtroom via an audio relay. His identity was not disclosed in order to protect him and the proper functioning of the police drug squad. At that stage the defence did not put any questions to V. After V.'s testimony had been read out by the trial judge, the defence formulated some questions which were put to him by the judge and answered. The other evidence examined by the court included the transcripts of the conversations between V. and M., the testimony of another police officer who had acted as V.'s back-up during the operation, of their supervising officer and of the applicant and his co-accused, as well as an expert's findings. 13. The documents relating to the use of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad. The Government contended that the applicant was not, however, denied access to information about the execution of the model. 14. Defence counsel, in his final submissions to the trial court, contended that the undercover police officer V. had acted unlawfully and that the applicant had been incited to commit the offence. Consequently, the officer's evidence could not be relied on. Furthermore, counsel contended that the applicant had never been involved in drug dealing before. 15. At the same time, M.'s defence counsel argued that the initial conversations between V. and M. had deliberately not been recorded by the police officer and that was because the crime was provoked. 16. The trial court concluded that the use of the model in the case had been lawful. The court observed inter alia: “[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that M. ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [both the applicant and his accomplice], i.e. the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.” 17. The court acknowledged that the applicant's and his accomplice's conduct had been influenced by Officer V. from the outset, and commented at the sentencing stage that it had not been established that the applicant and M. had sold or tried to sell drugs to anyone other than this officer. 18. The applicant was convicted of the attempted offence and sentenced to three years' imprisonment, as well as to the confiscation of LTL 2,000 (approximately 580 euros). 19. The applicant appealed to the Kaunas Regional Court. His defence counsel argued that the sentence imposed was – that the crime was incited by the police officers and that the applicant had not even been mentioned in the authorisation for the model – the officers had controlled the actions of the applicant and his accomplice. As there was no real damage done to the interests protected by law, and the applicant had acknowledged his guilt, the goal of punishment could be reached by imposing another sentence. The Government contended that the applicant had not claimed that V. had overstepped the legitimate limits of investigation by influencing and inciting M. and the applicant to sell a large quantity of drugs: he had mainly raised issues relating to the punishment and had claimed that he had been drawn into committing the crime by M. 20. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the applicant was guilty of a completed offence. The court also re-classified the conviction under Article 260 § 2 of the new Criminal Code and set the sentence at eight years of imprisonment. With respect to the applicant's entrapment allegations, the court noted: “The court finds the [applicant's] arguments that he was drawn into committing the crime by M. unfounded. The evidence shows that M., as the person who carried out the crime, had already been detected when drug-related crimes were being investigated. The case file shows that both M. and Lalas actively carried out the crime. ... [I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and brought to an end their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers brought to an end their criminal activities, but did not influence or incite them.” 21. The applicant lodged a cassation appeal. He alleged that the police actions had been unlawful. He argued that the authorities had applied the Criminal Conduct Simulation Model, as a consequence of which he had been induced into a crime by assisting M. to fulfil the police officer's lucrative request to procure drugs. The applicant observed that he had acted on the police officer's instructions. The lower courts had had no data that before the model had been sanctioned either the applicant or M. had ever been involved in similar or any other crimes. The applicant alleged that, at least from 21 June 2002, the police had known that he was an accomplice of M. However, the authorities had failed to sanction the application of the Criminal Conduct Simulation Model against him and, moreover, had continued provoking him to sell drugs in even larger quantities. Lastly, the applicant claimed a breach of his defence rights, alleging that he could not acquaint himself with the documents related to the authorisation to use the simulation model. 22. The Supreme Court dismissed the applicant's cassation appeal on 14 October 2003. As regards the lawfulness of the Model, it held: “In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about M. selling narcotic substances. Such data ... is a lawful ground for the use of the model. By entering into contact with M. and offering to buy psychotropic substances from him ..., V. only joined in the criminal activity of M. and uncovered his accomplice. Such actions cannot be considered as entrapment (nusikaltimo provokavimas): it appears from the case file that M. and Lalas were not subject to any pressure ... [The applicants'] allegation that the police undercover agent drew into the crime (paskatino) persons who had never offended before to commit a serious crime, is unsubstantiated. On the contrary, the use of [the model] helped to stop the criminal activity. ... The information which is obtained by use of the [model] constitutes a State secret ... and is accessible only to persons who have special authorisation. Neither [the applicant] nor his lawyer has such authorisation. Consequently, the fact that secret operative information was not disclosed to them cannot be regarded as a violation of the applicant's defence rights. It should be noted that the first instance court acquainted itself with the secret operative information and its sources, and properly evaluated the lawfulness of the model.” As regards the qualification of the offence the Supreme Court held that “the activities [of Malininas and Lalas] which constituted the objective part of the norm of § 2 of Article 260 of the Criminal Code were controlled by the officials and partially realised under their influence.” The applicant's conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), and the sentence of eight years' imprisonment was maintained. 23. On 3 March 2004, the applicant's defence counsel submitted a request to the Supreme Court for reopening the case, claiming that the courts' decisions were based on inappropriate evidence which had been gathered unlawfully. This request was dismissed by the Supreme Court on 30 March 2004, on the ground that the arguments submitted by the applicant were intended to contest the factual background of the case and therefore were not a ground for reopening the case according to domestic law. The Government indicated that at the time when the request for reopening was lodged the applicant had already gone into hiding. 24. The Government submitted information about M.'s request for reopening his case, which has been granted by the Supreme Court on 18 December 2008 after the judgment of the Court in the Malininas case (Malininas v. Lithuania, no. 10071/04, 1 July 2008). 25. The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and Criminal Conduct Simulation Models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).
| 1
|
train
|
001-104602
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,011
|
TÖRKÖLY v. HUNGARY
| 4
|
Inadmissible
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
|
The applicant, Mr Tibor Törköly, is a Hungarian national who was born in 1969 and is detained at Szeged Prison. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 December 2004 the applicant was arrested on a charge of murder. On 11 January 2005 the Bács-Kiskun County Regional Court convicted the applicant, a multiple recidivist, of attempted grave bodily assault and of aggravated murder committed with special cruelty. The court established that the applicant had first severely beaten up his common-law wife. Three days later, while they were collecting firewood in a forest, he had again beaten and kicked her, tied her up, hanged her on a tree and then cut her loose, wrapped her face and head with adhesive tape, and finally killed her with a minimum of nine stabs with a knife. The crime was committed out of jealousy. The court imposed a life sentence on the applicant, with eligibility for release on parole after 40 years, i.e. on 25 July 2044. The period spent in pre-trial detention after 5 December 2004 was credited towards the prison term. When imposing the sentence, the court took into account the applicant’s previous convictions for violent crimes, as well as the fact that his victim was his common-law wife and the mother of their two minor children. On appeal, on 16 June 2005 the Szeged Court of Appeal upheld this sentence at a public hearing. This judgment was served on 30 June 2005. On 5 September 2005 the Supreme Court dismissed, without an examination on the merits, the applicant’s petition for review as inadmissible, since it was incompatible ratione materiae with the relevant provisions of the Code of Criminal Procedure. On 15 December 2005 his request for re-trial was dismissed. The Constitution provides as follows: “(1) The President of the Republic shall ... exercise the right to grant individual pardon. (2) The counter-signature of the Prime Minister or the responsible Minister is required for all the measures ... of the President of the Republic listed in paragraph (1) ...” Act No. IV of 1978 on the Criminal Code provides: “The enforcement of the punishment is precluded by ... c) a pardon ...” Act No. XIX of 1998 on the Code of Criminal Procedure provides as relevant: “(1) Motions for pardon ... in respect of suppressing or reducing sanctions not yet executed ... shall be submitted – ex officio or on request – to the President of the Republic – by the minister in charge of justice. (2) [Such a r]equest may be introduced by the defendant, his/her lawyer or ... relative. ... (4) A [pardon] request ... concerning a sanction not yet executed must be introduced to the first-instance trial court. (5) In the course of the pardon procedure, the court shall obtain ... such personal particulars of the defendant as necessary for the decision on pardon.” “(1) The court ... shall forward the case documents and the request to the minister in charge of justice. ... (3) The minister in charge of justice shall forward the request to the President of the Republic even if s/he does not endorse it.”
| 0
|
train
|
001-4616
|
ENG
|
SVK
|
ADMISSIBILITY
| 1,999
|
BONDA v. SLOVAKIA
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant is a Slovak national, born in 1927 and living in Bratislava. A. The applicant, his wife and his son co-owned, together with six other individuals, a land in Stupava which they had jointly purchased in 1983. The four families co-owning the property built cottages on the land and reached an agreement as regards its use. In 1987 two co-owners requested that they should be authorised to accede to their cottage by a car across the plot used by the applicant and his family. An agreement was not reached and the two co-owners brought proceedings with a view to having the co-ownership dissolved. On 28 June 1988 the Bratislava-vidiek District Court (Okresný súd) dissolved the co-ownership and determined the owners of the individual plots forming the estate. It considered such a solution necessary in order to ensure a peaceful enjoyment of the property by all persons involved and also in order to enable the claimants to accede to the plot attributed to them. On 4 January 1989 the Bratislava Regional Court (Krajský súd) modified the first instance judgment in that it re-distributed the property with a view to ensuring all owners a direct access to their plots. Since the shares of the former co-owners could not be entirely respected, the persons concerned were granted a compensation. On 27 June 1990 the Supreme Court (Najvyšší súd) quashed the judgment as the facts had not been established with sufficient certainty. In particular, the Supreme Court considered that the Regional Court should have explored in more detail the possibility of dividing the property in accordance with the co-owners’ shares. The case was sent back to the Regional Court. On 30 August 1993 an expert appointed by the latter submitted his opinion on the division of the land. Another expert opinion concerning different issues was submitted on 13 July 1994. At a hearing held on 12 October 1994 the applicant requested an adjournment of the case as he had not been given an opportunity, despite his two requests to this effect, to examine the case-file. The applicant further challenged the two expert opinions. As regards the opinion of 30 August 1993, the applicant alleged that the data used by the expert were not correct, that the expert had not taken into account all the relevant facts and that the claimants’ request for access to their plot with a car was not justified. The applicant suggested that the Regional Court should order a second expert opinion on these issues. The court scheduled another hearing for 21 October 1994 so that the applicant could study the case-file on 13 and 14 October 1994. On 14 and 19 October 1994 the applicant challenged the presiding judge of the Regional Court. The applicant considered that the judge lacked independence and impartiality as he disregarded the opinion expressed in the Supreme Court’s judgment of 27 June 1990 and since he envisaged to accept the expert opinion of 30 August 1993 which was based on false facts. He also complained that the judge was not willing to order a second expert opinion. On 25 October 1994 the Supreme Court dismissed the applicant’s request. It considered that a mere objection to the way in which the judge proceeded with the case was not a relevant reason for his exclusion. The Supreme Court noted that the applicant had not substantiated his allegation that the judge was biased. It qualified the applicant’s request as an attempt to interfere with the court’s independence in deciding on the case. The Supreme Court’s decision was signed by a judge and stated that it was adopted in accordance with Section 16 (1) of the Code of Civil Procedure (see “Relevant domestic law and practice” below). On 13 December 1994 the president of the civil law section of the Supreme Court informed the applicant that the decision of 25 October 1994 had been taken by chamber no. 3Cdo and not by a single judge as alleged by the applicant. Another hearing before the Regional Court was scheduled for 14 December 1994. The applicant requested that the proceedings be adjourned. He alleged that the case was not ready for adjudication, that the Supreme Court’s decision of 25 October 1994 had not been taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure and that his request of 8 December 1994 to be allowed to consult the case-file had not been granted. On 14 December 1994 the Regional Court upheld the Bratislava-vidiek District Court’s decision of 28 June 1988 to dissolve the co-ownership of the land and redistributed the ownership of the individual plots so that the claimants could directly accede to their plot. It referred to the conflicts between the claimants and the applicant’s family on this issue and held that such a solution conformed to Section 142 (1) of the Civil Code. When determining the shares of the owners the Regional Court noted that it was bound by the purchase contract of 17 January 1983 which had been duly registered by a State Notary. According to the contract, the claimant family and the applicant’s family had a title to one third of the property each. For practical reasons, the plot attributed to the members of the claimant family exceeded by 10 square meters their original share and the plot attributed to the members of the applicant’s family exceeded their share by 8 square meters. Both families were therefore ordered to pay a compensation to the other owners who were in agreement. The court further ordered the claimants to pay Slovak korunas (SKK) 9,290 to the applicant’s family as a compensation for a fence and other investments which they had made on the land. The amount of the compensation had been determined by an expert. The judgment was based on the expert opinion including a geometric plan submitted on 20 August 1993. The Regional Court noted that the opinion conformed to the relevant regulations. The court also referred to its two inspections of the site of 8 November 1988 and 31 March 1992 respectively. On 2 May 1995 the applicant complained to the president of the Regional Court that the judgment of 14 December 1994 had not been served on him. He alleged a violation of Section 158 (3) of the Code of Civil Procedure. On 6 May 1995 the president of the Regional Court informed the applicant that he had extended the time-limit for drafting the judgment with reasons until the end of May 1995 as the judge originally charged with this task was on a long-term sick leave. The judgment was served on the applicant on 9 May 1995. On 4 July 1995 the applicant lodged an appeal on points of law with the Supreme Court. He alleged that the Regional Court had not established the facts correctly and that it had decided arbitrarily. In his view, the Regional Court had disregarded a mistake committed by the State Notary when registering the co-owners’ shares on 21 Feburary 1983. The applicant also complained that the expert opinion of 30 August 1993 had been based on false facts, that his request for a second expert opinion had not been granted and that there existed no relevant reasons for granting the claimants access to their plot by a car. The applicant further alleged that prior to the hearing held on 14 December 1994 the Regional Court had not allowed him to consult the case-file, that his son had not been duly summoned and that the Regional Court’s judgment had been served belatedly. He complained that he had suffered a damage of SKK 59,368 which the Regional Court had not taken into consideration. The Supreme Court dismissed the appeal on points of law on 20 February 1997. It found that the Regional Court had proceeded in accordance with Section 142 (1) of the Civil Code and that the reasons for its judgment were relevant and sufficient. The Supreme Court noted that the co-owners’ shares had been duly registered by the State Notary in 1983 and found nothing to show that the expert opinion of 30 August 1983 did not conform to the law or was otherwise defective. The failure to order a second expert opinion was not contrary to the applicant’s right to act before the court. The Supreme Court further established that the damages granted to the applicant’s family had been determined by an expert and that the applicant’s complaint about further damage of SKK 59,368 had not been the subject-matter of the proceedings in question. Finally, the Supreme Court found that the applicant had consulted the file several times and considered it irrelevant that he could not accede to it prior to the hearing held on 14 December 1994. The applicant lodged a constitutional petition (podnet) in which he alleged a violation of his constitutional right to judicial protection. It was rejected on 8 October 1997. The Constitutional Court found that the applicant’s right to have his case examined by a court was respected. B. Relevant domestic law and practice Civil Code Section 142 (1) gives a court the right to dissolve, at the request of one of the co-owners, a joint ownership and to determine the rights of the persons concerned if the latter fail to reach an agreement on this issue. In doing so, the court shall consider the co-owners’ shares in the property and bear in mind that its use should be effective. Code of Civil Procedure Pursuant to Section 16 (1), the decision on a request for exclusion of a judge shall be taken by a chamber of the higher court. In accordance with Section 44 (1), parties to the proceeding and their representative have the right to consult the case-file with the exception of the records of votes. Section 127 (1) provides that a court shall appoint an expert after having heard the parties if its decision in a case depends on the assessment of facts requiring special knowledge. Pursuant to Section 127 (2), an expert opinion may be submitted for examination to another expert, a scientific institute or another institution. In accordance with the relevant case-law (Collection of the judicial decisions and opinions No. 1/1981), experts may also prepare opinions after an agreement with natural or legal persons. The interested persons may then submit such opinions to the courts which should consider them as a documentary evidence. Under Section 158 (3), a copy of the judgment with reasons should be dispatched within thirty days after its delivery. The court’s president may grant a derogation from this rule provided that it is justified by serious reasons.
| 0
|
train
|
001-23892
|
ENG
|
ITA
|
ADMISSIBILITY
| 2,004
|
ROSSANO v. ITALY
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant, Mr Francesco Rossano, is an Italian national who was born in 1953 and lives in S. Agnello (Naples). He was represented before the Court by Mr G. Carini, a lawyer practising in Naples. The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a flat in Naples, which he had let to M.M., G.T. and C.T. In a writ served on the tenant on 28 June 1989, the applicant informed the tenants of his intention to terminate the lease on expiry of the term on 11 July 1991 and summoned them to appear before the Naples Magistrate. By a decision of 11 July 1990, which was made enforceable on 30 January 1991, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 July 1992. On 2 July 1992, the applicant served notice on the tenants requiring them to vacate the premises. On 3 August 1992, he informed the tenants that the order for possession would be enforced by a bailiff on 9 September 1992. Between 9 September 1992 and 6 March 2001, the bailiff made twenty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. On 2 July 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. Pursuant to Law Decree no. 32 of 25 February 2001, all the enforcement proceedings were suspended until 31 December 2001. Pursuant to Law Decree no 122 of 20 June 2002, all the enforcement proceedings were suspended until 30 June 2003. According to the last information provided by the applicant on 20 February 2004, he has not yet recovered possession of the flat due to Law n. 200 of 1 August 2003 which suspended all the enforcement proceedings until 30 June 2004.
| 0
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train
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001-58899
|
ENG
|
TUR
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CHAMBER
| 2,000
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CASE OF G.H.H. AND OTHERS v. TURKEY
| 1
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Not necessary to examine Art. 2;Not necessary to examine Art. 3;Not necessary to examine Art. 8;No violation of Art. 13
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Elisabeth Palm;Gaukur Jörundsson
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9. In the late 1970s and at the beginning of the 1980s the first applicant (G.H.H.) had been a supporter of his hometown branch of the Organisation of the Fedaian Minority (“the OFM”), a Marxist-Leninist organisation. This local wing of the organisation was headed by his cousin. The first applicant's involvement in the organisation's activities brought him to the attention of the authorities and he was detained on two occasions in 1980. Following a government crackdown on the OFM and its members, the first applicant lost contact with the organisation. As from 1984 he began to engage in the production and distribution of a newsletter carrying anti-government articles as well as dissident literary contributions. The first applicant himself contributed political articles and poems to the newsletter. He maintains that between 1984 and 1990 he was kept under close surveillance by the intelligence services, including during his period of military service. 10. In 1992 he married the second applicant who in the late 1970s and early 1980s had been an anti-government activist in the Organisation of Iranian People's Fedaii (“the OIPFG”). During her student days she had received several warnings from her university about her political activities. 11. While at university the first applicant founded a controversial literary journal and engaged in cultural, intellectual and social activities both within and outside his university which incurred the enmity of fundamentalist groups and led to his being questioned by the university intelligence services. He claims that his academic and research work as well as his Western sense of dress were criticised as being incompatible with the fundamentals of Islam. He claims that in 1987 he was arrested and detained for a week by the authorities for drinking alcohol and during his detention received eighty lashes. 12. In 1993 the first applicant attempted to publish his first book, a collection of poems, some of which were dedicated to persons who, like his cousin, were regarded with suspicion or hostility by the government. The poems conveyed feelings of romance, secularism and revolutionary fervour, but he composed them in a way which would not attract the application of the censorship laws. The first applicant finally secured official approval for the publication of the book on condition that he made certain amendments to its contents. With the assistance of a third party he procured by subterfuge a certificate of conditional approval to have the book printed which enabled him to have 3,000 copies run off. Before waiting for the official approval permit for the book's release, the first applicant distributed many copies to friends and bookshops. He has subsequently learned that the authorities refused to issue a permit. He maintains that since 1994 he has submitted four other books to the Ministry of Islamic Culture and Guidance for printing permits but never received a reply, only the verbal disapproval of officials of the books' contents. The first applicant claims that this effectively places a ban on his writings. 13. On 15 March 1996 the first applicant paid a visit to his home town. He was immediately detained on arrival by members of the Iranian security forces and taken to an intelligence office. He was questioned, inter alia, about his political activities, his literary associates and their meeting places and about how he had obtained a provisional permit to print his book. The security forces also interrogated him about the whereabouts of his cousin. He alleges that he was severely beaten while in detention. He was released after his brother agreed to stand bail for him. Before being released the first applicant was ordered to report back to the security services. He did not comply with this order and states that his brother was subsequently harassed and is currently facing prosecution on account of his failure to respect the terms of his conditional release. 14. The first applicant states that on 29 March 1997 the publisher of a literary magazine with which he had connections was found murdered and that around the same period several other persons in the literary milieu who were known to him were imprisoned, attacked, disappeared or died in suspicious circumstances. 15. According to the first applicant, these events coupled with his own arrest and torture and dissident profile made him fear for his life and compelled him to flee Iran. He also states that after fleeing Iran his wife, the second applicant, was subjected to harassment and threats from vigilante groups in connection with his disappearance. During a search of their home by the intelligence services, a number of cassettes were found containing recordings of banned songs and of meetings attended by the first applicant and several of his literary associates. The first applicant alleges that the authorities used the tapes of the meetings to identify him and the other participants, several of whom were subsequently detained and questioned. 16. On 16 April 1997 the first applicant obtained a passport by bribing an official and he fled to Turkey about one week later. He arrived in Turkey on or about 23 April 1997 on a tourist visa and travelled to Istanbul. He was informed there that he should contact the office of the United Nations High Commissioner for Refugees (UNHCR) in Ankara, which in turn informed him that he should register as an asylum-seeker with the Istanbul police. The Istanbul police notified him that he could not register as an asylum seeker because he had been in Turkey for six days and that the asylum regulations required that asylum-seekers register within five days of their arrival in the country. 17. The first applicant decided to renew his tourist visa fearing that if he lodged an asylum request he would be deported to Iran for non-compliance with the five-day time-limit. 18. On 1 May 1997 the first applicant was interviewed by the UNHCR, which rejected his asylum claim on 13 June 1997. He appealed against this decision on 12 August 1997 and on 21 November 1997 the UNHCR rejected his appeal. 19. At some stage the first applicant was joined by the second and third applicants who fled Iran for their safety. The Government claim that the first applicant in fact arrived in Turkey on 7 November 1997 and was accompanied by the second and third applicants. In the applicants' view the entire family had been in Turkey before that date but had to go on a one-day trip to Georgia to have their visas renewed. They re-entered Turkey on 7 November 1997. The applicants do not dispute that they all registered as asylum-seekers with the Ankara police on 11 November 1997. They were granted a residence permit on 12 December 1997 and ordered to reside in the town of Bilecik. 20. On 5 January 1998 the first applicant requested the UNHCR to reconsider his request for asylum and he was subsequently interviewed on 7 June 1998. On 8 July 1998 the UNHCR rejected the first applicant's renewed request and closed his case file. 21. On 18 August 1998 the applicants received a deportation order from the Turkish police. They were informed that they had fifteen days in which to appeal to the authorities against the implementation of the deportation order. The applicants objected and their residence permit was again extended on 11 September 1998. The applicants maintain that the decision to extend the residence permit was only taken in early December 1998 and in response to the Commission's requests on 2 and 17 September 1998 to the Government not to deport the family. 22. On 21 September 1998 the Ministry of Foreign Affairs reconfirmed that the applicants did not meet the criteria for the grant of refugee status. The applicants claim that they were never informed of this decision. 23. By letter dated 23 March 1999 the UNHCR informed the Ministry of Foreign Affairs that it had conducted a fresh examination of the first applicant's request for refugee status. Following that examination, and in light of new elements submitted by the first applicant, the UNHCR decided to grant him refugee status. In reaching its decision the UNHCR had particular regard to the fact that the applicant had been actively involved in the Association of Iranian Authors and his activities had brought him into contact with other intellectuals who had been murdered in 1998, apparently on account of their work on behalf of the association. The UNHCR concluded that if the applicant were to be returned to Iran, there was a reasonable likelihood that he would face persecution. 24. Subsequently, on receipt of the UNHCR's letter, the Ministry of Foreign Affairs directed that the applicants be entitled to remain in Turkey temporarily, for humanitarian reasons, until they were resettled in a third country. On 26 March 1999 the relevant authorities were requested to extend the applicants' temporary stay in Turkey pending their resettlement. 25. In October 1999 the applicants left Turkey and were resettled in the United States of America in the framework of a resettlement programme.
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train
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001-90332
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ENG
|
UKR
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CHAMBER
| 2,008
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CASE OF NOVIK v. UKRAINE
| 4
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Violation of Article 5 - Right to liberty and security
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
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5. The applicant was born in 1969 and lives in Kyiv. 6. On 30 November 2006 the applicant was apprehended by the police in Kyiv under the international arrest warrant issued by the General Prosecutor’s Office of Belarus. 7. On 1 December 2006 the Pechersky District Court of Kyiv ordered the applicant’s detention for forty days pending an official request for his extradition to Belarus and in order to effect his transfer to the law enforcement authorities of Belarus. 8. On 4 December 2006 the applicant appealed against the decision of 1 December 2006. He contended that the first instance court had not taken into account his state of health and the fact that he, together with his wife and three minor children, had been residing in Ukraine for a long period of time, and that the court had not examined the applicant’s submissions concerning his political persecution in Belarus. 9. On 7 December 2006 the Kyiv City Court of Appeal rejected the applicant’s appeal against the decision of 1 December 2006. It held that the first instance court had duly taken into account the applicant’s state of health. However, it took the view that his family situation was irrelevant for the case and that the applicant’s allegations of political persecution in Belarus were unsubstantiated. 10. On 8 December 2006 the Deputy Prosecutor of the Republic of Belarus submitted an official request to the General Prosecutor’s Office of Ukraine, seeking the applicant’s extradition to Belarus. 11. By letter of 25 December 2006 the Deputy Prosecutor General of Ukraine informed the Belarusian Deputy Prosecutor General that the applicant would not be extradited on the ground that, under Ukrainian law, the charges against the applicant did not carry imprisonment. 12. On 27 December 2006 the applicant was released from detention. 13. Relevant domestic law and practice is summarised in the case of Soldatenko (Soldatenko v. Ukraine, 2440/07, §§ 21-29 and 31, 23 October 2008).
| 1
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train
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001-68790
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ENG
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GEO;RUS
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CHAMBER
| 2,005
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CASE OF SHAMAYEV AND OTHERS v. GEORGIA AND RUSSIA
| 1
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Government's preliminary objections dismissed;No violation of Art. 2 as regards one applicant;No violation of Art. 3 by Georgia as regards 5 extradited applicants;Incompatibility ratione personae of the complaints under Art. 2 and 3 concerning the extradition of 5 applicants to Russia;Not necessary to examine Art. 2 and 3 regarding the extradition of 2 applicants to Russia;Violation of Art. 3 in the event of the extradition of one applicant;No violation of Art. 2 by Georgia as regards 5 extradited applicants;Violation of Art. 3 by Georgia as regards the treatment inflicted on 11 applicants;No violation of Art. 5-1 as regards detention in Georgia;Violation of Art. 5-2 by Georgia as regards all the applicants;Not necessary to examine Art. 6-3;Violation of Art. 5-4 by Georgia as regards all the applicants;Violation of Art. 13+2 and 13+3 by Georgia as regards 5 applicants;Not necessary to examine complaint of one applicant under Art. 2-1 and P4-4;Failure by Georgia to discharge its obligations under Art. 34 as regards 4 applicants;Failure by Russia to discharge its obligations under Art. 34 as regards 7 applicants;Failure by Russia to discharge its obligation to furnish necessary facilities under Art. 38;No jurisdiction to examine certain complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Reimbursement of costs incurred before the Court
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52. The applicants, Mr Abdul-Vakhab Shamayev, Mr Rizvan (or Rezvan) Vissitov, Mr Khusein Aziev, Mr Adlan (or Aslan) Adayev (or Adiev), Mr Khusein Khadjiev, Mr Ruslan Gelogayev, Mr Akhmed Magomadov, Mr Khamzat Issayev, Mr Robinzon Margoshvili, Mr Giorgi Kushtanashvili, Mr Aslambek Khanchukayev, Mr Islam Khashiev alias Rustam Elikhadjiev alias Bekkhan Mulkoyev and Mr Timur (or Ruslan) Baymurzayev alias Khusein Alkhanov (see paragraphs 54 and 55 below), are thirteen Russian and Georgian nationals who were born in 1975, 1977, 1973, 1968, 1975, 1958, 1955, 1975, 1967, 19..., 1981, 1979 (or 1980) and 1975 respectively. 55. As to the non-extradited applicants, Mr Margoshvili has been free since his acquittal on 8 April 2003 (see paragraph 94 below); Mr Gelogayev was released following a judgment of 6 February 2004 (see paragraph 99 below); Mr Khanchukayev, Mr Issayev, Mr Magomadov and Mr Kushtanashvili were released on 5 and 6 January 2005 and 18 February 2005 (see paragraph 98 below). The identity of those six applicants has been established by the Court (see paragraphs 110-15 below). After disappearing in Tbilisi on 16 or 17 February 2004, Mr Khashiev and Mr Baymurzayev were arrested by the Russian authorities on 19 February 2004. They are apparently detained at present in the Essentuki pre-trial detention centre (see paragraph 101 below). Having been unable to hear them in Russia (see paragraphs 46 et seq. above), the Court will refer to them by the surnames communicated by their representatives when lodging the application. 56. The facts of the case, as submitted by the parties and established by the Court during its fact-finding visit to Tbilisi, may be summarised as follows. 57. Between 3 and 5 August 2002 the applicants crossed the Russo-Georgian border near the Guirevi checkpoint (Georgia). Some of them were injured and were carrying sub-machine guns and grenades. Having asked the Georgian border guards for help, they apparently handed over their weapons voluntarily. An identity check was carried out. As a result, the names of the individuals claiming to be AbdulVakhab Shamayev, Rizvan (or Rezvan) Vissitov, Khusein Aziev, Adlan (or Aslan) Adayev (or Adiev), Khusein Khadjiev (or Khosiin Khadjayev, Khajiev), Ruslan Mirjoyev, Adlan (Aldan) Usmanov, Khamzat Issiev, Ruslan Tepsayev, Seibul (or Feisul) Bayssarov, Aslan Khanoyev, Timur (or Ruslan) Baymurzayev (or Baemurzayev) and Islam Khashiev were recorded. Only the first five applicants would appear to have been in possession of Russian passports. 58. The applicants were immediately transferred by helicopter to Tbilisi; they were initially placed in a civilian hospital, where those who were injured were operated on. On 5 August 2002 Mr Tepsayev (Margoshvili), Mr Vissitov, Mr Baysarov (Kushtanashvili), Mr Aziev, Mr Shamayev, Mr Khadjiev and Mr Issiev (Issayev) were charged with importing weapons in breach of the customs regulations (Article 214 § 4 of the Criminal Code), illegally carrying, handling and transporting weapons (Article 236 §§ 1, 2 and 3 of the Code) and crossing the border illegally (Article 344 of the Code). On 6 August 2002, further to an application by the Ministry of Security's investigating body, the Vake-Saburtalo Court of First Instance, in Tbilisi, ordered that they be placed in pre-trial detention for three months. According to the orders of 5 and 6 August, Mr Shamayev was arrested on 3 August and six other applicants on 6 August 2002. 59. On 6 August 2002, Mr Khanoyev (Khanchukayev), Mr Baymurzayev, Mr Khashiev, Mr Usmanov (Magomadov), Mr Mirjoyev (Gelogayev) and Mr Adayev were placed under investigation on the same charges. On 7 August 2002 the Vake-Saburtalo Court of First Instance ordered that they be placed in pre-trial detention for three months. It appears from those orders that Mr Usmanov (Magomadov) and Mr Mirjoyev (Gelogayev) were arrested on 7 August, Mr Adayev on 5 August and the three other applicants on 6 August 2002. 60. On the basis of those orders, on 6 and 7 August 2002 the applicants were transferred to Tbilisi Prison no. 5, with the exception of Mr Margoshvili, who was placed in the central prison infirmary. On an unspecified later date Mr Adayev was also hospitalised (see paragraph 142 below). According to the detention orders, all the applicants have Russian nationality. 61. On 1 November 2002 the pre-trial detention orders in respect of Mr Margoshvili, Mr Issayev and Mr Kushtanashvili were extended for three months by the Tbilisi Court of Appeal. On 4 November 2002 the same court also extended by three months the pre-trial detention orders in respect of Mr Khanchukayev, Mr Gelogayev, Mr Khashiev, Mr Magomadov and Mr Baymurzayev. 62. On 6 August 2002 Mr V.V. Ustinov, Procurator-General of the Russian Federation, travelled to Tbilisi and met his Georgian counterpart. He handed over the extradition request for the applicants. As the latter had been placed under investigation in Georgia and the documents submitted in support of the extradition request were considered inadequate in the light of Georgian legislation and international law, Mr N. Gabrichidze, the Georgian Procurator-General, declined verbally to extradite the applicants (see paragraphs 182 et seq. below). At the same meeting the Georgian Procurator-General's Office asked its Russian counterpart to submit the relevant documents in support of the extradition request, together with assurances as to the treatment the applicants would receive in the event of extradition and confirmation that their rights would be respected. 63. It appears from the file that the Georgian Procurator-General transmitted those demands on the same date in writing. He informed his Russian counterpart that on 6 August 2002 criminal proceedings had been instituted in Georgia against all of the applicants, that seven were being held in pre-trial detention and that the six others would soon be brought before a court for a ruling on their detention. He noted that the extradition request did not contain information on the identity, nationality and home addresses of the persons concerned or documents or the statutory provisions concerning the offences with which they were charged in Russia or duly certified detention orders. The Georgian Procurator-General concluded that, in view of those circumstances, “he [was] unable to examine the extradition request in respect of those individuals”. 64. On 12 and 19 August and 30 September 2002 the Russian authorities sent their Georgian counterparts the required documents, namely: (i) the investigation orders in respect of each of the applicants, issued by the decentralised service of the federal Procurator-General's Office in Chechnya, dated 8 August 2002; (ii) the international search warrant in respect of the applicants, issued by the Russian authorities on 15 August 2002; (iii) certified copies of the provisional detention orders in respect of each of the applicants, issued on 16 August 2002 under Article 108 of the new Code of Criminal Procedure by the Staropromislovsk Court of First Instance (Grozny) on an application by the investigator responsible for the case; (iv) extracts from the case file of the criminal proceedings brought against the applicants in Russia, setting out the charges against them; (v) photographs; (vi) copies of passports, with photographs; (vii) copies of Form no. 1; (viii) other information on the applicants' nationality and identity. 65. The Georgian Government submitted to the Court only copies of the documents listed under items (i), (ii) and (iii). The documents listed in item (iv) had apparently been classified as “confidential” by the Russian authorities in the interest of the proper administration of justice. 66. According to the orders of 8 August 2002, which were submitted to the Court by the Georgian Government, the applicants were under investigation in Russia for causing bodily harm to employees of the police and security forces (a crime punishable by life imprisonment or the death penalty – see Article 317 of the Criminal Code, paragraph 260 below); organising illegal armed groups and participation in such groups, with aggravating circumstances (punishable by a sentence of up to five years' imprisonment under Article 208 § 2 of the Criminal Code); gunrunning with aggravating circumstances (punishable by two to six years' imprisonment under Article 222 § 2 of the Criminal Code); and illegal crossing of the Russian Federation's border in July 2002, with aggravating circumstances (punishable by up to five years' imprisonment under Article 322 § 2 of the Criminal Code). (The same documents, submitted by the Russian Government, are dated 13 August 2002 with regard to Mr Adayev and Mr Vissitov.) 67. As Article 6 of the Georgian Criminal Code prohibits the extradition of an individual to a country in which the crime with which he or she is charged is punishable by the death penalty (see paragraph 256 below), the Georgian Procurator-General's Office asked the Russian authorities to guarantee that that penalty would not be imposed on the applicants. 68. In his letter of 26 August 2002, Mr V.V. Kolmogorov, Russian Acting Procurator-General, informed his Georgian counterpart that an investigation had been opened in Russia after an attack on Russian army units by illegal armed groups in a border area on 27 July 2002. Having learned that thirteen individuals who illegally crossed the border shortly after this attack had been arrested in Georgia, and having questioned three witnesses, the Russian authorities had placed those individuals under investigation. Given that the individuals concerned had been armed when they crossed the border, and having regard to other evidence, the Russian authorities believed that they were the perpetrators of the above attack. Mr Kolmogorov pointed out that the Georgian authorities had stated that they would be prepared to extradite the applicants if the Russian side submitted the necessary documents. Since all of those documents had been handed over on 19 August 2002, the Russian authorities repeated their request for extradition of the individuals concerned on the basis of the Minsk Convention, concluded under the auspices of the Community of Independent States (CIS – see paragraph 266 below). Mr Kolmogorov provided assurances that, given the moratorium on the death penalty in force in Russia since 1996, the individuals concerned would not be sentenced to death. At the same time, he asked that the case file in the criminal proceedings brought against the applicants in Georgia be sent to the Russian authorities, who would take responsibility for the subsequent proceedings. 69. On 27 August 2002 Mr V.I. Zaytsev, Russian Deputy Procurator-General, informed the Georgian authorities that a moratorium on the death penalty was in force in Russia and that, pursuant to a judgment of the Constitutional Court of 2 February 1999 (see paragraph 262 below), no one could be sentenced to death by any court in a subject of the Federation. 70. On 22 September 2002 the charges against the applicants in Russia were redefined and extended. The applicants were also placed under investigation for terrorism. The texts of the relevant orders, issued separately in respect of each applicant, are identical, as were those of 8 August 2002 (see paragraph 66 above). 71. In his letter of 27 September 2002, Mr Kolmogorov informed his Georgian counterpart that the applicants had also been placed under investigation for terrorism and banditry with aggravating circumstances, crimes which were punishable by eight to twenty years' imprisonment (Articles 205 § 3 and 209 § 2 of the Criminal Code). He gave assurances that the Russian Procurator-General's Office “[promised] the Georgian authorities that, in accordance with the rules of international law, these individuals [would enjoy] all the defence rights provided by law, including the right to assistance by a lawyer, [and would] not be subjected to torture or to treatment or punishment that was cruel, inhuman or contrary to human dignity”. In addition, he pointed out that “since 1996, a moratorium on the death penalty [had] been in force and that, consequently, the individuals who were to be extradited [would] not risk being sentenced to death”. As in the letter of 26 August 2002, the thirteen applicants are cited by name, without exception. 72. After examining the documents submitted by the Russian authorities, information from the Georgian Ministry of Security and evidence gathered at the time of arrest, the Georgian Procurator-General's Office identified, firstly, Mr Abdul-Vakhab Akhmedovich Shamayev, Mr Khosiin Khamidovich Khadjiev, Mr Khusein Mukhamedovich Aziev, Mr Rezvan Vakhidovich Vissitov and Mr Adlan Lechievich Adayev (the names are spelt as they were written in the extradition orders). In view of the seriousness of the charges brought against them in Russia, the Georgian Deputy Procurator-General signed the extradition orders on 2 October 2002. On the following day Mr P. Mskhiladze, Director of International Relations at the Procurator-General's Office, wrote to the Prisons Department at the Ministry of Justice in order to organise the execution of the orders (see paragraph 178 below). The five applicants were due to be transferred from prison to the airport at 9 a.m. on 4 October 2002. 73. However, on the evening of 3 October 2002, Mr Gabaydze, a lawyer for several of the applicants before the domestic courts, appeared on television claiming that he had obtained alarming information from a confidential source to the effect that the extradition of certain applicants was imminent (see paragraphs 124, 214 and 216 below). The following morning the applicants' lawyers, relatives and friends, and representatives of the Chechen minority in Georgia, blocked off the area around the prison and held a demonstration. 74. At 10.10 p.m. on 4 October 2002 the five applicants were handed over to representatives of the Russian Federal Security Service (FSB) inside the perimeter of Tbilisi Airport. The applicants' representatives have submitted footage of certain scenes of the extradition, broadcast on the Georgian Rustavi-2 channel on the evening of 4 October 2002. Four individuals are seen being hauled onto an aeroplane by Georgian special troops, who yank the prisoners' chins up in a harsh manner for the cameras. Mr Shamayev, Mr Adayev, Mr Vissitov and Mr Khadjiev are identifiable from the photographs in the Court's possession (see paragraph 20 above). Mr Aziev is not seen at any point. Mr Khadjiev has an injury to the neck and red marks around his jaw. Mr Vissitov is injured in the left eye. However, it is impossible to assess the extent of their injuries from the recording, which also shows the applicants' arrival in Russia. The extradited men, wearing blindfolds, are shown being removed from the plane by uniformed masked men, one on each side of the prisoners, who are being held bent double with their arms crossed behind their backs and their heads pointing downwards. 75. The recording ends with the following words, spoken by a Georgian journalist: “...Unless the Georgian authorities provide rapid proof that they have not handed over innocent unidentified individuals to Russia, it will be quite obvious that this extradition is a gift to Mr Putin on the eve of the Summit of the member States [of the Community of Independent States]” (held in Chişinău on 6 and 7 October 2002). 76. On 8 October 2002 Mr Ustinov informed the Representative of the Russian Federation at the Court that the Russian authorities had provided their Georgian counterparts with all the necessary guarantees concerning the applicants' treatment in the event of extradition. In his words, “five of the thirteen Chechen terrorists having been handed over, the Georgian side [was] unnecessarily delaying the extradition of the others, on the sole ground that their identity had to be established”. 77. In his letter of 16 October 2002, the Russian Deputy Procurator-General thanked the Georgian authorities “for granting the request to extradite five terrorists”. He claimed that the applicants had been examined by doctors on their arrival in Russia, “their health [had been] found to be satisfactory”, lawyers had been “assigned”, the investigation was being conducted “in strict conformity with the requirements of the legislation on Russian criminal procedure” and that “documents [existed] proving that they [had] Russian nationality”. He repeated the assurance, “provided to the Georgian authorities on numerous occasions”, that, “in accordance with the requirements of Articles 2 and 3 of the Convention and of Protocol No. 6, these persons [would] not be sentenced to the death penalty and [would] not be subjected to torture or to inhuman, cruel or degrading treatment”. Furthermore, measures to identify the non-extradited applicants from photographs had made it possible to identify them as the perpetrators of the attack against the Russian army on 27 July 2002 in the Itum-Kalinsk district (Chechen Republic). Promising that “other comprehensive identification procedures [would be] conducted after their extradition”, the Russian Deputy Procurator-General repeated the request for extradition of the applicants still held in Tbilisi, in accordance with Articles 56, 67 and 80 of the Minsk Convention. 78. On 28 October 2002 the Russian Procurator-General's Office again sent the Georgian authorities the judicial investigation orders in respect of Mr Gelogayev (named as Mirjoyev), Mr Khashiev and Mr Baymurzayev, and sought their extradition. (The lawyers point out that by this date the three individuals in question had already denied that those surnames, originally given to the Georgian authorities, were theirs.) 79. In his reply of 29 October 2002, the Georgian Procurator-General indicated that the names which appeared in the provisional detention orders issued by the Russian court against the eight applicants held in Tbilisi were not their real surnames and that the applicants had to be identified before their extradition could be agreed. He explained that “in contrast to the names of the five individuals extradited on 4 October 2002”, there were “serious doubts” as to the names of the six prisoners wanted by the Russian authorities and that the seventh and eighth prisoners referred to by the surnames Tepsayev and Bayssarov were in fact named Margoshvili and Kushtanashvili. They had been born in Georgia, not Chechnya. The Procurator-General regretted that “the Russian authorities [were] insisting on the extradition of Mr Tepsayev and Mr Baymurzayev, when they knew full well that Tepsayev was not Tepsayev and Baymurzayev was not Baymurzayev”. In his opinion, this also raised doubts concerning the veracity of the information provided by the Russian authorities with regard to the six other applicants. 80. On 21 November 2002 Mr Gelogayev, Mr Magomadov, Mr Kushtanashvili, Mr Issayev, Mr Khanchukayev, Mr Baymurzayev and Mr Khashiev contacted the President of Georgia and the Speaker of the Georgian parliament. They asked not to be extradited to Russia, claiming that they were “absolutely certain that they would be subjected to torture and to inhuman treatment by the Russian military and other authorities, and that they would be shot without being brought before any court”. 81. In a statement of 15 October 2002 the Ministry of Foreign Affairs of the “Chechen Republic of Ichkeria” declared that on 5 October 2002 Mr Khusein Aziev, an extradited applicant, had died as a result of the ill-treatment inflicted on him. On 18 October 2002 the Russian Government informed the Court that this information was false and claimed that all the extradited applicants, including Mr Aziev, were safe and sound, were in good health and were being held in good conditions in a SIZO in the Stavropol region. On 23 October 2002 the Court asked the Russian Government to send it the exact address of this establishment so that it could correspond with the applicants (see paragraph 15 above). 82. The applicants' representatives have misgivings about the credibility of the Russian Government's response. They refer to a certain Khusein Yusupov, an individual of Chechen origin who was detained at the Georgian Ministry of Security until the end of September 2002, who subsequently seemed to have disappeared. According to the Georgian authorities, he was released. According to Mr Yusupov's mother, who went to meet him on the day he was due to be released, her son did not leave the prison. The lawyers believe that he could have been “informally” handed over to the Russian authorities in order to “replace” the deceased applicant. They drew the Court's attention to the ill-treatment allegedly inflicted on Mr Aziev prior to his extradition (see paragraphs 125 and 135 below). 83. On 28 November 2002, having concluded that Mr Baymurzayev, Mr Mirjoyev and Mr Khashiev were named Alkhanov Khusein Mauladinovich, Gelogayev Ruslan Akhmedovich and Elikhadjiev Rustam Osmanovich respectively and that they were Russian citizens, the Georgian Procurator-General's Office agreed to their extradition to Russia. The extradition order expressly stated that it was to be served on the applicants and that it was to be explained to them that an appeal lay before the courts. 84. On 29 November 2002 the applicants appealed to the Krtsanisi-Mtatsminda Court of First Instance (Tbilisi). Their lawyers pointed out that the extradition request had not been drawn up using their clients' real names and that it included photographs of them taken by the Georgian authorities during their detention in Tbilisi Prison no. 5. They complained that the detention orders in respect of their clients, issued on 16 August 2002 by the Staropromislovsk Court of First Instance (Grozny) (see paragraph 64 above), contained no reference to a maximum length of detention and that the applicants' defence rights had been totally breached in the proceedings which had resulted in those orders. In view of these shortcomings, they sought a refusal of the impugned extradition request. Further, basing their argument on Russia's failure to ratify Protocol No. 6 to the European Convention on Human Rights, they concluded that the Russian assurances were scarcely sufficient for the purposes of the European Convention on Extradition. They considered that, in order to be satisfactory, these assurances ought to have come from the President of the Russian Federation. 85. On 5 December 2002 this appeal was dismissed. On 25 December 2002 the Georgian Supreme Court overturned that decision and remitted the case. 86. On 13 March 2003 the court to which the case had been remitted held that the extradition of Mr Khashiev and Mr Gelogayev was legal. For the first time, it was stated before that court that on 27 October 2000 and 1 November 2001 (1 February 2002 according to the Supreme Court – see paragraph 88 below) Mr Baymurzayev and Mr Gelogayev had been granted refugee status in Georgian territory. The Acting Minister for Refugees stated before the court that that status had been granted under the Refugee Act (see paragraph 257 below). Having established that Mr Baymurzayev had never been deprived of his refugee status in accordance with a procedure prescribed by law, the court concluded that it was impossible to extradite him to Russia. With regard to Mr Gelogayev, the court noted that, by a decision of 25 November 2002, the Ministry for Refugees had withdrawn his refugee status, on the basis of a letter from the Ministry of the Interior dated 20 November 2002 and a report from the Committee on Refugee Status. 87. Basing its decision on an expert report and on explanations provided by the representatives of the Procurator-General's Office, the court ruled that it was established that the extradition request from the Russian authorities had been accompanied by photographs of the applicants taken on 7 August 2002 by the Georgian authorities, while those individuals were imprisoned in Tbilisi Prison no. 5. According to the court, communication of the photographs to the Russian authorities had been justified since it had been necessary in order to identify the persons concerned. 88. On 16 May 2003 the Supreme Court upheld this decision in so far as it concerned the impossibility of extraditing Mr Baymurzayev. It ordered that Mr Gelogayev's extradition be suspended pending completion of the administrative proceedings instigated by him against the decision of 25 November 2002 to withdraw his refugee status. As to Mr Khashiev, the Supreme Court noted that his photograph, taken by the Georgian authorities, had been sent to the Russian authorities for the purpose of identifying him, but that this had been unsuccessful. Furthermore, the defence submitted a copy of a Russian passport indicating that Mr Khashiev was not in fact named either Khashiev or Elikhadjiev, but Mulkoyev (see paragraphs 83 above and 101 below). At the request of the Georgian Procurator-General's Office, the Russian authorities had apparently checked the authenticity of this copy and had replied on 6 May 2003 that such a passport had never been issued. Given those circumstances, the Supreme Court considered that Mr Khashiev's identity had not been established and decided to suspend his extradition; it sent this part of the case back to the Procurator-General's Office for further investigation. 89. Mr Khanchukayev and Mr Magomadov were tried by the Tbilisi Regional Court for illegally crossing the border and were acquitted on 15 July 2003 on the ground that there was no corpus delicti in their actions. In particular, it was established that both of the applicants had been injured and had been obliged to cross the Russo-Georgian border in circumstances of “dire necessity” in which they were obliged to evade a confrontation with the Russian armed forces and the siege in which they had been trapped since 25 July 2002. The Regional Court found that they had been forced to commit the offence because they had no other option and that “they had naturally considered that what was transgressed [national security, the border, etc.] was less important than what was preserved, namely their own lives”. It was noted that the investigating authorities had not questioned the border guards involved and had prosecuted the two applicants solely on the basis of their own statements. The Regional Court had examined the border guards, who had stated that, at the point where the applicants had crossed into Georgia, the border was not marked, even by a flag, and that as such it was unidentifiable and delimited in an approximate manner by the two States concerned. They confirmed that, at the material time, the areas adjoining the border, and the border itself, were being shelled by the Russian army and that the applicants had offered no resistance whatsoever in handing over their weapons and had requested asylum in Georgia. 90. This judgment was upheld on appeal on 2 December 2003; however, Mr Khanchukayev and Mr Magomadov could not be released, since they had been placed in pre-trial detention on 18 December 2002 in connection with the criminal case arising from acts of violence against State employees during the night of 3 to 4 October 2002 (see paragraphs 96 et seq. below). 91. On 9 October 2003, on the same grounds as in the case of Mr Khanchukayev and Mr Magomadov, the Tbilisi Regional Court acquitted Mr Issayev of illegally crossing the border. In particular, it established that Mr Issayev had two gunshot wounds on his left forearm when he entered Georgia. He had met Mr Khadjiev and Mr Aziev, who were also escaping from Russian shelling, in the forest. All three had sought refuge in the cabin of a Georgian shepherd named Levan. Another group of Chechens had also taken shelter there. Having learned from the shepherd that they were already in Georgian territory, the escapees had sent their host to request help from the Georgian border guards. They had voluntarily handed over their weapons and requested asylum in Georgia. Those elements had been confirmed to the Regional Court by the border guards in question (see paragraph 89 above). 92. The court also established that Mr Issayev's arrest had been brought to the attention of the Russian authorities by the Georgian Ministry of Security. After his arrest, Mr Issayev had corrected the name of his father three times before it was finally ascertained that he was the son of a certain Movli. In line with those changes, the Russian authorities had also amended the documents supporting their extradition request in respect of this applicant. The court considered that “the documents submitted by the Russian prosecution service and included in the case file seemed to have been drawn up in a contrived manner with a view to securing the extradition of the individual concerned”. They did not suggest that this individual “had been known to the Russian law-enforcement agencies ... prior to his arrest in Georgia”. 93. The acquittal was upheld on appeal on 11 December 2003. However, Mr Issayev could not be released because he had been placed under investigation in the criminal proceedings arising from acts of violence against State employees (see paragraphs 96 et seq. below). 94. On 8 April 2003 Mr Kushtanashvili and Mr Margoshvili, Georgian citizens, were acquitted on charges of carrying, handling and transporting weapons illegally. The other aspect of the case (illegally crossing the border and infringing customs regulations) was remitted for additional investigation. Their pre-trial detention was commuted to judicial supervision and they were immediately released. On 20 May 2003 Mr Kushtanashvili was rearrested in the light of the decision of 28 February 2003 ordering that he be placed in pre-trial detention in connection with the case concerning acts of violence against State employees (see paragraphs 96 et seq. below). 95. On 6 February 2004 Mr Gelogayev, Mr Khashiev and Mr Baymurzayev were also acquitted by the Tbilisi Regional Court of crossing the border illegally. On 16 April 2004 the Georgian Supreme Court quashed that judgment and remitted the case for further consideration. 96. At 9 a.m. on 4 October 2002, in the presence of two witnesses, Mr R. Markelia, investigator, drew up a damage assessment report of cell no. 88, where eleven applicants had been detained before being removed a few hours previously (see paragraph 123 below). Damage was observed: in particular, the furniture had been taken apart and the walls had been damaged. On 9 October 2002 proceedings were instituted. On 1 November 2002 the Procurator-General's Office submitted a number of objects for analysis, with a view to determining whether they had been part of the furnishings in cell no. 88. The expert report, dated 25 December 2002, identified the following objects: stick-shaped pieces of metal and metal discs, removed by hand from the window-bars and the bunk beds in cell no. 88; the foot of the cell ventilator; pieces of brick removed from the cell walls and placed inside a pair of jeans, the legs of which had been knotted; a sharpened spoon embedded in a plastic cigarette lighter to make a knife; a soup spoon, sharpened along one side; and other objects which had been part of the cell and its furnishings. 97. On 29 and 30 November and 16 December 2002 the non-extradited applicants, with the exception of Mr Margoshvili, were charged with premeditated resistance by a group of prisoners involving the use of force against State employees, and with refusing to obey lawful orders from prison warders with the intention of prejudicing the proper functioning of the prison. On 30 November and 16 December 2002 the indictments, together with translations into Russian, were served on the applicants. 98. On 24 May 2004 Mr Kushtanashvili, Mr Magomadov, Mr Issayev and Mr Khanchukayev were convicted at first instance and were each sentenced to four years' imprisonment. According to the judgment, the prisoners in cell no. 88 had seen on television that “certain Chechens” were to be extradited but, not knowing which of them were affected by that measure, they had opposed the prison wardens who tried to remove them from the cell. They were armed with metal objects which had been removed from the bed-frames and plumbing and with projectiles made from pieces of brick wrapped in sheets and clothing. They had caused injury to prison wardens and members of the special forces. On 26 August 2004 the Tbilisi Court of Appeal upheld that judgment. On 25 November 2004, ruling on an appeal on points of law by the applicants, the Georgian Supreme Court quashed the appeal judgment and sentenced the applicants to two years and five months' imprisonment. The period spent in detention since their arrest was counted as part of this sentence. Mr Khanchukayev was released on 5 January 2005, Mr Magomadov and Mr Issayev on 6 January 2005 and Mr Kushtanashvili on 18 February 2005. 99. On 6 February 2004, in the same case, Mr Gelogayev, Mr Khashiev and Mr Baymurzayev were convicted at first instance and given a one-year prison sentence. As the length of time spent in pre-trial detention was deducted from this sentence, those three individuals were released immediately. On 16 April 2004 the Supreme Court overturned that judgment and remitted the case for a fresh examination. 100. Following their release on 6 February 2004, Mr Khashiev and Mr Baymurzayev moved in with a relative in Tbilisi; they were joined by Mr Gelogayev. On 16 February 2004 they left the house for an appointment at the Ministry for Refugees, but disappeared before ever arriving there. On 25 February 2004 the Georgian media, citing a Russian agency report, announced that the missing men were being held in a Russian prison in the town of Essentuki, on suspicion of having crossed the Russo-Georgian border illegally. On 5 March 2004 Ms Mukhashavria informed the Court of this and stated that she was anxious about the health of Mr Baymurzayev, who apparently needed an operation on his jaw. She explained that, following their release, the three applicants had not left their residence unless accompanied by their representatives. As the latter had assured them that they had nothing to fear in Tbilisi, Mr Khashiev and Mr Baymurzayev had dared to venture out alone for the first time on the day in question. 101. On 13 March 2004 the Georgian Government claimed that an investigation by the Ministry of the Interior had ascertained that the two applicants had disappeared on 16 February 2004 at 10.30 a.m. They had subsequently been arrested by the Russian authorities near the village of Larsi (Republic of North Ossetia) for crossing the border illegally. On 29 March 2004 the Russian Government alleged that the two applicants had been arrested in Larsi on 19 February 2004 by the Federal Security Service on the ground that they were on the list of wanted persons. At the time of his arrest, Mr Khashiev had been carrying a false passport in the name of Mulkoyev (see paragraph 88 above). On 20 February 2004 Mr Khashiev and Mr Baymurzayev, under the names of Rustam Usmanovich Elikhadjiev and Khusein Mauladinovich Alkhanov, had been placed under investigation and imprisoned in Essentuki Prison, pursuant to a decision by the Staropromislovsk Court (Grozny). Transferred on 6 March 2004 to a SIZO in town A, they had been returned to Essentuki on 22 March 2004 for the purposes of the investigation. 102. On 8 April 2004 the Russian Government submitted photographs of these applicants, of their cells and of the SIZO in town A (shower room, medical unit and kitchen). Mr Khashiev and Mr Baymurzayev were apparently detained separately; each was held in a cell measuring 16.4 sq. m, equipped with a window, toilet facilities and a radio connection. The cells contained four prisoners, the number they had been designed for. According to Mr Khashiev's “prisoner card”, he had been placed under strict surveillance. The applicants had never complained about their conditions of detention. The photographs showed them face on and from the side, and had been taken in two different rooms which did not appear to be the same as the cells shown in the above-mentioned photographs. 103. According to medical certificates dated 24 March 2004, Mr Khashiev was in good health and had no recent injuries. Mr Baymurzayev was suffering from a broken lower jaw, complicated by osteomyelitis. In 2000 he had received a shrapnel injury to the chin and had had an operation on his jaw in 2002. He had broken the same bone again in 2003. On 12 March 2004 he had undergone an X-ray examination in Russia and on 15 March 2004 he had been examined by a stomatologist, who recommended in-patient surgical treatment. 104. Mr Gelogayev was heard by the Court in Tbilisi and spoke of his distress caused by the disappearance of his two companions. He speculated that they may have been secretly extradited in exchange for certain political concessions obtained by the Georgian President during his first official visit to Russia after his election in January 2004. 105. It appears from documents submitted by the Georgian Government on 19 September 2004 that on 28 March 2004 the Tbilisi procurator's office opened an investigation into the kidnapping of Mr Khashiev and Mr Baymurzayev. The Georgian Government offered no explanation on this subject. 106. On 5 and 30 November 2004 Ms Mukhashavria submitted copies of the judgments delivered by the Supreme Court of the Chechen Republic on 14 September and 11 October 2004 respectively in the cases of Mr Khashiev (Mr Elikhadjiev, Mr Mulkoyev) and Mr Baymurzayev (Mr Alkhanov). She claimed to have obtained them with the help of individuals close to the applicants. In the judgments Mr Khashiev is referred to as Elikhadjiev Rustam Usmanovich and Mr Baymurzayev as Alkhanov Khusein Mauladinovich (see paragraph 83 above). The first was cited as having been born in 1980 in Grozny and the second in 1975 in the village of Aki-Yurt in Ingushetia. During the trial Mr Khashiev alleged that he had been arrested on 16 February 2004, not at the Russian border, but on Tbilisi's Rustaveli Avenue. He had then been transferred to Essentuki (see paragraph 101 above). According to the judgments, Mr Khashiev and Mr Baymurzayev were part of an armed group formed in the Pankisi Gorge (Georgia) by a certain Issabayev for the purpose of exterminating members of the federal armed forces in Chechnya and local residents who cooperated with those troops. In July 2002 they had allegedly crossed illegally into the Itum-Kalinsk region in Chechnya, with about sixty members of the armed group in question. On 27 July 2002, surrounded by Russian border guards, the group had opened fire and attacked the guards. Eight Russian soldiers had been killed and several others injured. Given the lack of evidence of their direct participation in that attack, Mr Khashiev and Mr Baymurzayev were acquitted on the charge of terrorism and of the offences set out in Article 205 § 3 and Article 317 of the Criminal Code (see paragraphs 66 and 71 above). They were also acquitted of the offences listed in Article 188 § 4 and Article 208 § 2 of the same Code (see paragraph 66 above) on the ground that there was no corpus delicti in their actions. Mr Khashiev and Mr Baymurzayev were convicted of participation in an illegal armed group, crossing the border illegally and of carrying, transporting and handling weapons illegally; they were sentenced to thirteen years' and twelve years' imprisonment respectively, to be served in a closed prison. Mr Khashiev was also convicted of using a false passport in the name of Mulkoyev (see paragraph 101 above). In imposing those sentences, the Supreme Court stated that it took account of the applicants' ages and the fact that they had no criminal record. Mr Baymurzayev's health (serious deformation of the lower jaw) was also taken into consideration. An appeal to the Supreme Court of the Russian Federation lay against those judgments. 107. According to the Russian Government, Mr Shamayev, Mr Khadjiev, Mr Vissitov and Mr Adayev were brought before the Stavropol Regional Court for trial “in the summer of 2003”. Mr Aziev was allegedly brought before the same court on 26 August 2003. On 24 February 2004 the Russian Government informed the Court orally in Tbilisi that, on 18 February 2004, the Stavropol Regional Court had delivered judgment against the first four applicants. The prosecution had called for sentences of nineteen years' imprisonment for Mr Shamayev and Mr Khadjiev and eighteen years' imprisonment for Mr Vissitov and Mr Adayev. The court had sentenced Mr Shamayev and Mr Khadjiev to three years' and six years' imprisonment respectively, to be served in an ordinary prison, and had sentenced Mr Vissitov to ten years' imprisonment in a closed prison and Mr Adayev to one year and six months' imprisonment in an ordinary prison. Mr Adayev had been released immediately because he had already been in detention for this length of time. Mr Aziev had requested the assistance of an interpreter and submitted a number of procedural requests, with the result that his case had been severed from that of the others and the investigation in his regard was still ongoing. 108. The Russian Government submitted that they were unable to provide the Court with a copy of the judgment of 18 February 2004. They claimed that, under the new Code of Criminal Procedure adopted by the Russian Duma in accordance with the Council of Europe's recommendations, only the convicted person could obtain a copy of the judgment concerning his or her case. The Government expressed their willingness to cooperate with the Court, but regretted that, on this occasion, such cooperation was impossible on account of the Council of Europe's recommendations. They advised the Court that if it wished to obtain the document in question it should write to the Russian court concerned. The Court learned from a letter of 8 April 2004 from the Russian Government that an appeal had been lodged against the judgment of 18 February 2004 (see paragraph 48 above). In their submissions of 20 July 2004, the Government gave the Court to understand that the appeal court had quashed the judgment in question in its entirety (see paragraph 272 below). 109. On 25 February 2004 the Russian Government submitted to the Court in Tbilisi photographs of the SIZO in town B and of the four extradited applicants' cells, taken on 19 February 2004 (Mr Adayev, the fifth applicant, had been released on the previous day). These photographs show a spacious and well-equipped kitchen and laundry and a shower room. The applicants' cells are large and well lit, and each has a large window. They contain long tables and benches. The toilets are open, but separated by a low wall from the rest of the room. There are sinks with soap and toothpaste, brooms and water tanks in each cell, and heating pipes under the windows. Radio sets can be seen in certain cells. The package from the Government also contained a video cassette. This recording shows the four cells as described above. On the basis of the photographs of the applicants in the Court's possession (see paragraph 20 above), it is possible to identify Mr Shamayev in cell no. 22 and to recognise Mr Khadjiev in cell no. 15. On the other hand, it is very difficult, if not impossible, to spot Mr Vissitov in cell no. 18, given the backlighting and the absence of any close-ups. According to the off-camera voice commenting on the pictures, Mr Aziev had refused to be filmed. Nonetheless, a recording was made of his cell (no. 98) in which the prisoners' faces cannot be made out but their silhouettes can be seen from a distance. In each cell the number of beds is equal to or greater than the number of prisoners present during the filming. 110. Mr Khamzad(t) Movlievich Issiev (Issayev), alias Khamzat Movlitgalievich Issayev, stated that his real name was Khamzat Movlievich Issayev, that he was of Chechen origin and that he had been born on 18 October 1975 in the village of Samachki, in Chechnya. 111. Mr Seibul (Feisul) Bayssarov stated that he was called Giorgi Kushtanashvili, that he was a Georgian citizen who belonged to the Kist ethnic group and that he had been born in the village of Duisi, in the Akhmeta region of Georgia. 112. Mr Aslan Khanoyev stated that his real name was Aslambek Atuievich Khanchukayev, that he was a Russian national of Chechen origin, and that he had been born on 25 February 1981 in the village of Selnovodsk, in Chechnya. 113. Mr Adlan (Aldan) Usmanov stated that he was in fact named Akhmed Lechayevich Magomadov, that he had been born on 4 July 1955 in Pavlodar in Kazakhstan, and that he was of Chechen origin. 114. Mr Ruslan Mirjoyev stated that his real name was Ruslan Akhmedovich Gelogayev, that he was of Chechen origin and that he had been born on 16 July 1958. 115. Mr Tepsayev stated that he was in fact Robinzon Margoshvili, son of Parola, that he was a Georgian citizen of Kist origin, and that he had been born on 19 April 1967 in the village of Duisi, in the Akhmeta region of Georgia. 116. With the exception of Mr Margoshvili, who was detained in the prison infirmary (see paragraph 60 above), those applicants confirmed that they had known the extradited applicants in prison and had been held with them in the same cell. The photographs of the applicants, submitted by the Governments on 23 and 25 November 2002, were shown to them for identification. The names on the photographs had previously been covered over by the Court's Registry. 117. Each of the applicants (except for Mr Margoshvili) recognised himself in the relevant photograph submitted by the Georgian Government. Mr Robinzon Margoshvili (formerly Ruslan Tepsayev) was identified by the other applicants as Ruslan (four times) and Ruslan Tepsayev (once). 118. With regard to the two missing applicants, namely, Mr Timur (Ruslan) Baymurzayev alias Khusein Alkhanov, and Mr Islam Khashiev alias Rustam Elikhadjiev alias Bekkhan Mulkoyev (see paragraph 43 above), the first was identified as Baymurzayev (once), Timur (once), Khusein (twice) and Khusein Alkhanov (once). The second was named as Islam (twice), Bekkhan (twice), Mulkoyev (once) and Bekkhan Mulkoyev (once). 119. With regard to the extradited applicants, four applicants identified Abdul-Vakhab and one applicant identified Abdul-Vakhab Shamayev in the photograph submitted by the Russian Government as that of Mr Abdul-Vakhab Shamayev. The photograph of Mr Khusein Khadjiev was identified as Khusein (three times), Khusein Khadjiev (once) and Khusein Nakhadjayev (once). Three applicants identified Khusein Aziev and two applicants identified Khusein in the photograph submitted as that of Mr Khusein Aziev. Mr Adlan (Aslan) Adayev (Adiev) was identified as Aslan Adayev (twice) and Aslan (three times). On the other hand, all five applicants identified the person in the photograph submitted by the Russian Government as Mr Rizvan (Rezvan) Vissitov as a certain Musa. 120. By virtue of the authorities to act submitted on 9 October 2002, the six non-extradited applicants were represented before the Court by Ms Mukhashavria and Ms Dzamukashvili. On the basis of the authorities to act dated 4 August 2003, those applicants, with the exception of Mr Margoshvili, were also represented by Ms Kintsurashvili. 121. During the proceedings in Tbilisi, at which only Ms Mukhashavria and Ms Kintsurashvili were present, five applicants confirmed that, with the assistance of Ms Mukhashavria and Ms Dzamukashvili, they had lodged an application with the Court against Georgia and Russia in order to challenge their extradition and have it stayed. They stated that they wished to pursue their application and continue to be represented by the same lawyers in the proceedings that would ensue before the Court (or, in some cases, by the lawyers then present in the room). As he had only a very basic knowledge of Georgian, Mr Margoshvili, the sixth applicant who was heard, had difficulty in understanding the questions put by the Court. However, he maintained that he was complaining about his arrest under the Chechen name of Tepsayev, as he was merely a simple Georgian shepherd. Mr Margoshvili confirmed that he had applied to the Court, that the lawyers present in the room were his representatives and that he wished to pursue his complaint. 122. Five of the applicants who appeared were heard by the Court in Russian with interpretation into English, one of the Court's two official languages. Having stated that he was unable to read Russian, Mr Margoshvili, the sixth applicant, took the oath in Georgian; he also expressed himself in that language. 123. During the few weeks before 4 October 2002, eleven applicants had found themselves detained in the same cell (no. 88) in Tbilisi Prison no. 5. A total of fourteen prisoners had been held in the cell. Mr Adayev and Mr Margoshvili, the twelfth and thirteenth applicants, had been in the prison infirmary at the time. 124. The applicants had had a television set in their cell. Although rumours had been circulating for a while about their possible extradition to Russia, it was only on 3 October 2002 that they learned from the 11 p.m. news bulletin on Rustavi-2 that the extradition of five or six of their number was imminent (see paragraph 216 below). No names having been given, they were unaware of who exactly would be affected by that operation. They had received no prior information or official notification on this matter. The applicants understood that the information gleaned from the television was accurate when, between 3 and 4 a.m., prison wardens arrived and asked them to leave the cell so that it could be disinfected (or searched, according to Mr Kushtanashvili). The applicants categorically refused to comply, with the result that the prison governor named four individuals and asked them to leave the cell. In response, the applicants asked that nothing be done until daybreak and that their lawyers be summoned; this request was refused. About fifteen hooded members from the Georgian Ministry of Justice's special forces then entered the cell and removed the applicants one by one. They used truncheons and applied electric shocks. The applicants were beaten as they lay on the floor in the corridor. The four applicants affected by the extradition order were immediately removed and the others were placed in solitary confinement. Around 4 a.m. Mr Adayev, the fifth applicant against whom an extradition order had been issued, was transferred directly from the prison infirmary. 125. All of the applicants heard claimed that they had put up only verbal resistance to leaving the cell. They complained that they had been beaten, insulted and “treated like animals” by the special troops. Following this incident, Mr Issayev had two fractured ribs and an eye injury, the scar from which was still visible. Mr Kushtanashvili sustained injuries from truncheon blows. Mr Khanchukayev sustained extensive bruising. Mr Magomadov had a broken tooth, a laceration to the ear, an injury to the frontal bone and extensive bruising on his back and legs. Mr Gelogayev had extensive bruising on his body and other injuries (to the shoulder and cheek) and had suffered an inflammation of the left kidney, injuries which he himself described as “trivial” (see paragraphs 200, 201 and 211 below). All of the prisoners were injured more or less seriously. In particular, the applicants referred to broken ribs and a fractured shoulder in some cases, and blood-splattered heads in others. According to Mr Kushtanashvili and Mr Khanchukayev, the applicants who were to be extradited were given the most severe beatings. Mr Issayev, Mr Magomadov and Mr Khanchukayev had heard that Mr Aziev had died as a result of his injuries. According to Mr Gelogayev, Mr Aziev must have had a broken spine, since he was no longer able to walk and was dragged along the corridor by two members of the special troops. He also appeared to have an eye turned inside out. According to Mr Gelogayev, the photograph of Mr Aziev allegedly taken by the Russian authorities after his arrest could have been a copy of an old photograph. 126. Once placed in solitary confinement, the non-extradited applicants were examined by a doctor, who listed each prisoner's injuries in writing. He merely measured the extent of their bruises with a ruler and did not provide treatment. The applicants did not subsequently receive any other medical care. 127. None of the applicants confirmed that he had been informed by a member of the Procurator-General's Office that extradition proceedings were pending against him. They all claimed to have received visits from numerous persons while in prison (officially assigned lawyers, investigators and prosecutors), whose names they did not remember. They remembered having met once, in the absence of their lawyers, a man and a young woman (see paragraphs 162-66 below) who asked them to sign documents drawn up in Russian (in Georgian, according to Mr Kushtanashvili), which they refused to do. 128. With the exception of Mr Kushtanashvili and Mr Margoshvili, the applicants all claimed that they had entered Georgia in search of refuge from the armed combat in Chechnya. They denied having been armed when they crossed the border. They had not been arrested at the border, but had voluntarily given themselves up to the Georgian border guards, from whom they had sought assistance. The latter had tended to their wounds before calling for a helicopter to transport them to Tbilisi. 129. The applicants confirmed that they had all supplied false names to the Georgian authorities. With the exception of Mr Kushtanashvili and Mr Margoshvili (see paragraphs 135 and 143 below), they had acted in this way to avoid extradition to Russia and to prevent family members and friends who were still in Russia from being endangered should they (the applicants) fall into the hands of the Russian authorities. Mr Issayev alleged that he was weary of ten years of war in Chechnya and that, if it would put him out of danger, he “[would] willingly change not only his name, but also his appearance”. He was convinced that he had escaped extradition on account of his false identity. 130. Mr Gelogayev and Mr Khanchukayev indicated that their officially assigned lawyers (including Ms Magradze, according to Mr Khanchukayev) and an investigator from the Ministry of Security had advised the applicants to say that they were armed when they crossed the border, since this would ensure that they were kept in Georgia pending trial. The applicants had followed this advice. 131. The applicants all denied categorically that they had put up any resistance to State employees during the night of 3 to 4 October 2002. 132. Mr Issayev stated that he was opposed to his extradition to Russia on the ground that “no distinction is made there between peaceful civilians, terrorists and fighters”. When speaking with the representatives of the prosecution service who visited them in prison, he and his fellow prisoners had always expressed their wish not to be extradited to Russia and their fear of being subjected to ill-treatment in that country. They had asked to be tried in Georgia. They had had no access to the extradition papers. According to Mr Issayev (and also Mr Kushtanashvili), the officially assigned lawyers, the investigator and the representatives of the prosecutor's office had asked the applicants to tell them their real names so that they could help them avoid extradition. Those who had complied had been extradited immediately. 133. Prior to his arrest, in August 2002, Mr Issayev had, he claimed, attempted unsuccessfully to obtain refugee status in Georgia. 134. Mr Kushtanashvili claimed that he was Georgian (of Kist origin) and was a shepherd in the area bordering Chechnya. When the region was being shelled by the Russian armed forces in August 2002, he had met seven injured Chechens who were fleeing. He had descended the mountain slopes on the border with them and taken them to a shepherds' hut. He himself had sustained a head injury that night. He repeatedly claimed not to have clear memories of the events in question on account of this injury. 135. Mr Kushtanashvili explained that, since he had no money, he had given the Georgian authorities and doctors a false Chechen name in order to pass for a fugitive and thus receive free medical care. He did not believe that his Georgian nationality represented an obstacle to extradition and considered that he was still in danger on account of his Chechen origins. In a letter sent to the Court on 13 November 2002, he alleged that, during the night of 3 to 4 October 2002, the applicants had asked to see their lawyers before leaving the cell as requested. The prison governor had replied that “neither lawyer nor investigator” would turn up and that “[they should] leave the cell voluntarily before [he used] force”. In the same letter Mr Kushtanashvili also claimed that Mr Aziev had received a violent blow to the head and that one of his eyes had practically come out of its socket. He had seen him for the last time when a member of the special troops “was dragging him along the corridor like a corpse”. 136. Mr Khanchukayev stated that, shortly after his arrest, “extradition started to be mentioned”. The applicant, who was afraid of being tortured in Russia, had signed papers, the content of which he could not remember, in the hope of being tried in Georgia and avoiding extradition. In certain cases the applicants had allegedly been threatened with extradition if they refused to sign. After 4 October 2002 he had written to the Georgian President asking him not to authorise his extradition (see paragraph 80 above). He admitted that he was still afraid of extradition and that he lived in a state of uncertainty. At the initial stage of the proceedings before the Court, this applicant claimed that he could not return to Russia on account of the “genocide of the Chechen people” being perpetrated “by Russia throughout the country”. 137. Mr Khanchukayev did not recognise the explanatory statement of 23 August 2002 which, according to Mr Darbaydze, he had refused to sign (see paragraphs 163-64 below). 138. Mr Magomadov claimed that he did not know on which side of the border he had been injured, since the border line was not marked in the area in question (see paragraph 89 above). After being knocked out by a shell wound to the head, he had been carried by his comrades. A Georgian general had arrived by helicopter and had introduced himself as commandant of the border troops. He had promised the applicants that he would report the facts to the Georgian President in person and that they would be given refugee status. The general had previously given orders to the effect that the applicants were to receive hospital treatment. 139. During the meeting with a man and young woman from the Procurator-General's Office (see paragraphs 162-66 below), the applicants had been asked to sign documents without being informed of their contents. All of the non-extradited applicants had met those individuals, but in small groups. Mr Magomadov himself had been brought before the two members of the prosecution service in the company of Aslan (Khanoyev alias Khanchukayev) and Bekkhan (Khashiev alias Mulkoyev) (see paragraph 419 below). Mr Magomadov claimed that he still feared extradition. 140. Mr Gelogayev claimed that he had held refugee status in Georgia since February 2002 (see paragraph 86 above) and had been granted this status in the Akhmeta region, which bordered Chechnya. He had then left legally for Chechnya, travelling via Baku (Azerbaijan), in the hope of bringing his family to Georgia. Once in Chechnya, he had begun looking for a family member who had been missing for more than a year, and had arrived in the Itum-Kalinsk region. There, he had witnessed armed combat between the Russian federal army and the Chechen fighters, who had been surrounded on 25 July 2002. Georgia had been the only way out. He had received a shrapnel wound to the leg but had nonetheless walked as far as the Georgian border, which he had crossed on 3 August 2002. He had requested asylum from the Georgian soldiers who arrived on the scene by helicopter. He had been hospitalised and operated on in Tbilisi, then transferred to a prison infirmary two days later. 141. Mr Margoshvili stated that in August 2002 he had been wounded while watching his flock in pastureland near the border. He did not know whether he had been wounded by Georgians, Russians or Chechens. After being taken to Tbilisi, he was treated in the prison infirmary, where he was detained for three months. He was informed that he had been arrested because he was carrying weapons. He claimed that he had not been imprisoned “with a weapon, but with a quilted jacket and shepherd's boots”. 142. Mr Margoshvili confirmed that he had been in the same infirmary ward as Mr Adayev, one of the five extradited applicants. He did not mention a television set or other information source that would have enabled Mr Adayev to learn, as the other extradited applicants had, that he was likely to be handed over to the Russian authorities in the very near future. At about 4 a.m. on 4 October 2002 Mr Adayev had been taken away, after getting up and following the members of the hospital staff without a word. Masked men were waiting for him in the hospital courtyard. During their stay in the infirmary, Mr Adayev had frequently asked Mr Margoshvili to cut out his tongue, arguing that this would help him to endure questioning more easily if he were extradited. Mr Margoshvili had firmly refused to do so. 143. Mr Margoshvili claimed that he had not assumed a false name of his own volition. Having been taken to hospital in a serious condition, he learned on recovering consciousness that he was being referred to as Mr Tepsayev. At first he had been happy to receive free medical treatment on the strength of this name, but had then rapidly challenged this identity in the infirmary and subsequently before a judge. 144. The Court heard Mr A. Dalakishvili, in-house inspector at Tbilisi Prison no. 5 (who was on duty on the night of 3 to 4 October 2002), Mr Buchukuri, employee of the Ministry of Justice's Prisons Department (who was also on duty that night), Mr E. Kerdikoshvili, chief inspector of the Prisons Department's service responsible for transporting foreign nationals, and Mr N. Chikviladze, employee of the Prisons Department, and head of security at Prison no. 1. 145. Those individuals all said that they had not been officially informed of the applicants' imminent extradition and that they had learned later, on the morning of 4 October 2002, that five Chechen prisoners were to be extradited. Mr Buchukuri and Mr Dalakishvili alleged that, as they had been on duty, they were unable to watch television to keep themselves informed. According to Mr Chikviladze, only the prison governor, his deputies and the head of the prison secretariat (special division) had been informed of the applicants' imminent transfer. He had learned from the media that four or five Chechen prisoners were to be extradited, but none of the prison staff had been told their names. 146. The above-mentioned persons confirmed that thirteen or fourteen Chechen prisoners were held in the same cell. According to Mr Tchikviladze, the decision to keep these prisoners together had been based on their religious convictions, so that they would not be hindered in carrying out their daily rites. 147. At about 4 a.m. on 4 October 2002, the above-mentioned prison staff were informed that a loud noise was coming from cell no. 88. Mr Dalakishvili instructed a warden to find out what was happening. The latter looked through the peephole in the cell door and saw that the prisoners were dismantling beds and shouting in a foreign language. According to Mr Chikviladze, after a certain period the warden was no longer able to observe what was going on, as the prisoners had covered over the peephole from the inside. Mr Dalakishvili submitted a written report on the situation to the prison governor, who was still in his office. At the latter's request, Mr Dalakishvili, Mr Buchukuri and Mr Chikviladze, accompanied by other members of staff and the deputy governor, went to the cell to see what was happening. The deputy governor ordered that the cell be opened. According to Mr Dalakishvili, they hoped to talk to the applicants. When the door was opened, they found the cell in chaos, heard shouts and saw that bits of metal and bricks were being thrown in their direction. Mr Chikviladze shouted an order to close the door quickly. He asked that it be left closed until such time as he had reported the situation to his superiors in the Prisons Department. Mr Dalakishvili, who did not understand the reason for such violence, believed that a riot was about to begin and increased the number of wardens on the floor in question. 148. Returning to the prison's administrative wing, Mr Chikviladze saw that the director of the Prisons Department was already there, together with about ten or so other people. He was then officially informed that four prisoners were to be removed with a view to their extradition. A vehicle was apparently ready in a neighbouring courtyard and the airport authorities had been informed. Accompanied by the director of the Prisons Department, the prison governor and their deputies, the wardens again gathered in front of the cell. The prison governor entered first, with four sealed files under his arm, one for each of the prisoners affected by the extradition order. The others followed him into the cell. According to Mr Kerdikoshvili, the prisoners were standing on their beds and throwing bowls, plates and other objects at them. The governor informed them that an internal measure was to be implemented in the cell and that the prisoners were to leave it. According to Mr Chikviladze, the governor mentioned the need to search the room. The prisoners categorically refused to obey and launched a direct attack. 149. The wardens heard by the Court confirmed that all the applicants were armed with pieces of metal which had been removed from the beds, metal grills which they had removed from the windows and trousers filled with bricks and tied at the end of the legs, which were being used as projectiles. 150. In this connection Mr Chikviladze explained that Prison no. 5 was housed in a building that had been constructed in 1887, and that the walls were so eroded that bricks could be pulled out by hand. Mr Dalakishvili also stated that the walls were in a state of disrepair and that bricks could be removed using one's bare hands. Having subsequently participated in drawing up the damage assessment report (see paragraph 96 above), Mr Chikviladze noted that the cell walls had been damaged and that the metal bed-frames were in several pieces. The water pipe above the sink had apparently been pulled out of the wall. 151. Since the prison governor's arrival in the cell had led to an open attack, masked members of the special troops, who had previously been posted in the staircase, entered the premises at the governor's request. Mr Dalakishvili and Mr Chikviladze considered that the use of special troops had been necessary in view of the scale of the resistance put up by the prisoners. They both agreed that hand-to-hand combat had taken place between the prisoners and members of the special troops. According to Mr Buchukuri, the special troops, who had been placed at the prison administration's disposal in case of necessity, usually carried a truncheon each and could hardly enter the prison armed in any other way. 152. According to Mr Dalakishvili, the applicants had heard rumours about the extradition order from the television. Mr Chikviladze supposed that they could have kept mobile phones illegally in their cell or could have listened to the radio. In addition, certain neighbouring cells contained television sets and their occupants could have passed on the news to the applicants without difficulty. 153. Mr Dalakishvili alleged that, on entering the cell behind the prison governor, he had been injured on the elbow and knee by “projectiles” fabricated on the spot by the prisoners (see paragraph 205 below). He nonetheless returned to his office, where the non-extradited prisoners had been taken for a check-up. Mr Dalakishvili observed that all of the applicants were covered in dust, but no one was bleeding. He stated that if Mr Magomadov had had a lacerated ear he would have noticed it (see paragraph 125 above). As he himself had not noted any injury and the applicants had not asked for medical assistance, Mr Dalakishvili had not been required to call a doctor at that point. Since the prisoners who were to be extradited had been led away immediately, he had not seen them again in his office and therefore had not seen Mr Aziev. 154. At the end of his shift, on coming across demonstrators outside the prison, Mr Dalakishvili learned that prisoners had been extradited. Given his position, he had been surprised that the authorities had not informed him so that, as was customary, he could inform the prisoners concerned on the day prior to their extradition. He explained to the Court that, under normal circumstances, a written, signed and stamped notification was sent to him by the head of the prison secretariat which managed the prisoners' personal files; Mr Dalakishvili's role was to check the documents for which he was responsible and to inform the individual concerned of the time of departure, so that he or she would have time to prepare. This procedure had not been followed in the instant case. 155. Mr Buchukuri claimed that he had been wounded in the foot by a piece of metal (see paragraph 204 below), that his wound had bled and that he had immediately gone to the prison administration's premises for treatment. Although his wound was not serious, it had required treatment for approximately ten days. 156. Mr Kerdikoshvili stated that, on arriving at the prison, he had learned that the prisoners were refusing to leave their cell, but that no one had explained to him why they were refusing to do so or why they had to be moved. Having followed the prison governor into the cell, he had been injured on the hand (see paragraph 204 below) and had immediately gone downstairs to the infirmary. Other wardens had also been injured and the prison doctor had provided medical treatment. 157. According to Mr Chikviladze, two or three prisoners, armed with pieces of metal, climbed to the top of the bunk beds when the prison governor entered the cell. One of them took aim at Mr Chikviladze several times, but failed to hit him. A member of the special troops then pushed Mr Chikviladze out of the way for his own safety. The most violent prisoners had been the four individuals whose sealed files the governor had brandished; two other prisoners had attempted unsuccessfully to calm them down. 158. Mr Chikviladze considered it likely that, like the State employees, the prisoners could have been injured, given the hand-to-hand fighting that had taken place in the cell. 159. Mr Z. Sheshberidze explained that the special troops were based not far from Prison no. 5, which they could reach in ten minutes if they ran. On the night in question he and about fifteen of his colleagues had been instructed to defuse the situation in cell no. 88. Unaware of the reason for the disorder, the group had been positioned in staircases near the cell, from where noise and shouting in a foreign language could be heard. The prison governor had entered the cell, but had returned a few minutes later and asked the troops to intervene. They had complied and had performed their task “after encountering limited resistance”. The prisoners had been armed with pieces of metal and missile-like objects made from trousers containing a solid mass. Mr Sheshberidze stated that he and his colleagues had indeed been wearing masks, in line with the regulations. On the other hand, they had not worn special vests or any other protective equipment. Armed only with rubber truncheons, they had not carried electric batons or other weapons. They had made the prisoners lie down in the corridor and had handed them over to the prison wardens before leaving the building. Mr Sheshberidze had learned from the television that the applicants had been removed from the cell in order to be extradited. 160. Mr Sheshberidze claimed that he had sustained a small injury (see paragraph 204 below). He denied the allegation that he and his colleagues had beaten the applicants mercilessly and insulted them. 161. The Court questioned Mr L. Darbaydze and Ms A. Nadareishvili, trainee prosecutors at the Procurator-General's Office at the relevant time, Mr P. Mskhiladze, director of international relations at the Procurator-General's Office, and Mr N. Gabrichidze, former Georgian Procurator-General. 162. Mr Darbaydze explained that, under the supervision of Mr Mskhiladze, his superior, he had been responsible for various tasks in connection with the disputed extraditions. In particular, Mr Mskhiladze had asked him to visit the applicants in prison, to inform them that the issue of their extradition was being examined by the Procurator-General's Office and to request explanations concerning their nationality. He had carried out this visit on 23 August 2002 with his fellow trainee, Ms Nadareishvili, and without the lawyers being present, since “it was not official questioning, but a request for information”. On that date they met only five applicants. 163. Mr Darbaydze had first spoken with Mr Khanchukayev in Russian in a separate room. The latter had provided information orally, but had refused to sign the corresponding document that would provide formal confirmation of his remarks (see paragraph 137 above). On being returned to the room where the other prisoners were being held, Mr Khanchukayev had said something to them in Chechen. The prisoners then collectively refused to “provide the required explanations and sign the relevant document”, on the ground that they were not assisted by a lawyer and a Chechen interpreter. 164. The document that Mr Khanchukayev had refused to sign was an explanatory statement intended for the Procurator-General. It contained the applicant's assertions to the effect that he was Chechen and had been born in Grozny in 1981; had arrived in Georgia on 4 August 2002 and been arrested by the Georgian authorities; had been held for a few days in the Ministry of Security's investigation prison then transferred to Prison no. 5 in Tbilisi; and had been informed at the time of his arrest that he had been arrested for crossing the border illegally. The following sentence can be read at the bottom of this piece of paper: “The prisoner refused to sign this document and requested the assistance of a lawyer.” The document had been drawn up by Mr L. Darbaydze, trainee prosecutor. According to the minutes of the meeting, signed only by Mr Darbaydze and Ms Nadareishvili, they had unsuccessfully attempted “to obtain an explanatory statement from the applicant in connection with his extradition”. 165. Following this refusal to communicate, Mr Darbaydze postponed the discussion in order to seek the assistance of an interpreter. Mr P. Mskhiladze, his superior, arranged with the Ministry of Security's team of investigators (see paragraph 190 below) that, following an interview scheduled for 13 September 2002, Mr Darbaydze would be able to meet the applicants. Mr Darbaydze thus received an assurance that lawyers and a Chechen-speaking interpreter would be present at the meeting. 166. On 13 September 2002, accompanied by his colleague Ms Kherianova, Mr Darbaydze went to the prison. He met Mr T. Saydayev, an interpreter hired by the Ministry of Security (see paragraph 189 below), and explained to him that, “on account of an ongoing extradition procedure, [he wished] to receive information from the Chechen prisoners that would enable their nationality to be established”. The interpreter had translated these remarks, but, since he did not speak Chechen, Mr Darbaydze had been unable to assess the accuracy of the interpretation. In response, the applicants reiterated their refusal to provide information and to sign the corresponding documents, which had been drawn up in Russian. Nonetheless, the documents were read out to them. 167. As the applicants' representatives had indicated that Mr Darbaydze's name did not appear on either of the two “visitors' logs (citizens, lawyers and investigators) for Prison no. 5” covering the periods of 5 August to 12 September and 13 September to 17 October 2002 respectively, Mr Darbaydze explained that on 23 August and 13 September 2002 his name had not been entered in those logs but in the prison's “register of access to the investigation room”. Since prosecutors – unlike visitors, lawyers and investigators – had no need of a pass and could enter the prison on the strength of their professional badge alone, he did not believe that his name could have been entered in the visitors' log mentioned by the lawyers. By the same token, his name did not appear in the “register of requests to bring a prisoner [from his or her cell]” because, on the two dates in question, he had joined the applicants in the investigation room, to which they had been conducted at the request of the Ministry of Security's investigators (see paragraph 190 below). 168. Mr Darbaydze explained that the Ministry of Justice, which was responsible for executing extradition orders, had been informed immediately of the decision of 2 October 2002 (see paragraph 178 below). On the same date Mr Mskhiladze had personally informed the applicants' domestic lawyers by telephone and, furthermore, had served the written extradition orders on them. Mr Darbaydze seemed to remember going to the lawyers' offices for that purpose. 169. According to Mr Darbaydze, at the material time neither the Georgian Code of Criminal Procedure nor any regulatory measure governed the procedure to be followed in lodging an appeal against an extradition order. Article 259 § 4 of the above-mentioned Code alluded to it only vaguely (see paragraph 254 below). This loophole had been remedied by the Georgian Supreme Court's case-law in the Aliev case (see paragraph 258 below). 170. Mr Darbaydze stated that, given the lawyers' criticism that neither they nor their clients had been informed of the extradition proceedings and orders, he had contacted Mr Saydayev in December 2002 and had asked him to certify by affidavit that he had indeed gone to the prison on 13 September 2002 and informed the applicants of the extradition proceedings against them. Mr Darbaydze produced the affidavit in question before the Court (see paragraph 196 below). 171. Ms Nadareishvili confirmed that she had been responsible for the extradition case in question within the Procurator-General's Office. On 23 August 2002, together with Mr Darbaydze, she had met five of the applicants in the investigation room of Tbilisi's Prison no. 5. Given those five individuals' refusal to cooperate, she and her colleague had decided against asking that the other applicants be brought to them, as originally planned. Ms Nadareishvili and Mr Darbaydze wished to obtain information about the applicants' dates and places of birth, and their nationalities. They informed the applicants that they were working on the question of their extradition for the Procurator-General's Office and that they were not investigators. The applicants had initially pretended not to speak Russian but had subsequently stated in that language that they did not wish to return to Russia and that some of them had Georgian nationality. This conversation took place without a lawyer or an interpreter. 172. With regard to the fact that her name did not appear in the prison's visitors' log, Ms Nadareishvili claimed not to know the procedure for access to the prison, since she had visited it for the first and last time on 23 August 2002. 173. Mr Mskhiladze, who was Mr Darbaydze's and Ms Nadareishvili's hierarchical superior, explained that the Georgian Procurator-General's Office had not been satisfied with the documents submitted by the Russian authorities in support of the extradition request concerning the applicants; those documents had been handed over during Mr Ustinov's visit to Georgia (see paragraphs 62 and 63 above). Confirming the facts set out in paragraphs 62-64, 67-69 and 71-72 above, Mr Mskhiladze emphasised that the Georgian authorities had asked their Russian counterparts for firm assurances concerning the treatment that would await the applicants in the event of extradition. He pointed out that those had not been general assurances, but individual guarantees in respect of each applicant, cited by name in the relevant letters. Given that the assurances had come from the Russian Procurator-General's Office and that the Office had the role of prosecutor during criminal trials in Russia, the Georgian authorities had every reason to believe that the death penalty would not be sought in respect of the applicants. They had also taken into account that a moratorium on the death penalty had been in force in Russia since 1996 and that the imposition of such a sanction had been prohibited by the Constitutional Court's judgment of 2 February 1999. Beset by “certain doubts”, the Georgian authorities had required the same type of assurance with regard to inhuman or degrading treatment. It was only after it had obtained satisfactory assurances in that respect that the Georgian Procurator-General's Office had begun examining the extradition request. 174. Without denying that the Procurator-General's Office had sent the Russian authorities photographs of the applicants which had been taken in Georgia, Mr Mskhiladze firmly denied that the Russian side had used those photographs in their extradition request or in support of that request. The Russian authorities had indeed submitted the photographs of the applicants which were included with the copies of Form no. 1 (see the footnote on page 12 above). According to Mr Mskhiladze, this was explained by the fact that, at the request of the Ministry of Security's investigation team responsible for examining the illegal border crossing, the Procurator-General's Office had submitted a request for assistance in that criminal case to the Russian authorities, in accordance with the Minsk Convention. The request, accompanied by the applicants' photographs and fingerprints, was intended to identify the persons concerned and had been drawn up at the end of August 2002. Given that the extradition request, supported by photographs of the applicants and other documents, had been submitted on 6 August 2002, Mr Mskhiladze did not believe that the two sets of photographs could be the same. 175. As to the identification of the extradited applicants, Mr Mskhiladze explained that the Russian investigation orders contained their real names and that the applicants themselves had never contested this. They had also been identified by means of identification procedures in Russia, photographs, identity documents and copies of Form no. 1, submitted by the Russian authorities. In addition, according to the Georgian Ministry of Justice, those individuals did not possess, and had never possessed, Georgian nationality. The Ministry for Refugees had also indicated that they were not on the refugee list. Thus, the extradition orders of 2 October 2002 had not resulted from a hasty procedure. For two months, the Procurator-General's Office had meticulously examined the documents showing that the applicants were accused of serious crimes in Russia, were Russian nationals and were protected by firm assurances from the Russian authorities. 176. Mr Mskhiladze considered that the extradition proceedings had been transparent. At his request, trainee prosecutors who were supervised by him had informed the applicants of the extradition proceedings and had obtained information about their nationality. In addition, the applicants had also been kept informed by the media. Mr Mskhiladze stated that the extradited applicants' lawyers had consequently been able to rely on Article 259 § 4 of the Code of Criminal Procedure (see paragraph 254 below) and to apply to a court at any stage of the proceedings, especially as such an application would have had a suspensive effect on execution of the extradition orders. However, Mr Mskhiladze accepted that he was unaware of instances in which Article 259 § 4 had been used prior to the Aliev case (see paragraph 258 below). He pointed out that, following the Supreme Court judgment in that case, three applicants had been able to challenge the extradition orders issued against them (see paragraphs 83 and 84 above). 177. With regard to the issue of access to the extradition files, Mr Mskhiladze explained that the applicants' lawyers had asked to inspect the files, but that this had been refused on the ground that the employees of the Procurator-General's Office responsible for the case needed to be able to study these files themselves. In any event, according to Mr Mskhiladze, the lawyers would have been able to consult the files only if they had decided to apply to a court against the extradition proceedings. 178. Mr Mskhiladze stated that at about 1 p.m. on 2 October 2002 he had personally handed over a copy of the extradition orders – issued that day at noon – to the relevant individual in the Ministry of Justice, with a view to their execution. He had also informed Mr Khidjakadze and Mr Gabaydze, the applicants' lawyers, of the orders by telephone (see paragraphs 212 et seq. below). As he was unable to contact Mr Arabidze, he had asked the latter's colleagues to inform him. He had then sent the lawyers a letter containing a copy of the orders. Mr Mskhiladze submitted to the Court a copy of this letter of notification, which also informed the lawyers that they were entitled to apply to a court on behalf of their clients. As he was unable to send the letter by fax on account of electricity problems – a regular occurrence in Georgia – Mr Mskhiladze instructed Mr Darbaydze to leave the letter at the lawyers' offices (see paragraph 168 above). Since the lawyers were absent, Mr Darbaydze handed over the envelope to an office employee. The copy of the letter submitted by Mr Mskhiladze has an almost entirely illegible and faded signature, preceded by the words “I confirm receipt on 2 October 2002”. 179. Mr Mskhiladze categorically dismissed the above-named lawyers' argument that the extradition had taken place in secret. He considered that, since no execution date was indicated on the extradition orders, the lawyers had had sufficient time to apply to a court between 2 and 4 October. 180. As to Mr Aziev's allegedly alarming condition, Mr Mskhiladze did not rule out the possibility that he had been injured during the incident between the prisoners and special troops and that the journalists had not wished to film him at the airport. In any event, Red Cross representatives had visited each applicant at the airport. Russian television had subsequently shown Mr Aziev being admitted to prison. 181. Mr Mskhiladze dismissed Ms Mukhashavria's argument that the applicants' detention had been directly linked to the fact of Mr Ustinov's lodging of an extradition request against them. 182. Mr Gabrichidze said that on 6 August 2002 Mr Ustinov had visited Georgia with his deputy, several employees of the Russian Procurator-General's Office and special guards. The main purpose of his visit had been to discuss the alarming situation prevailing in the Pankisi Gorge, a Georgian valley which bordered Chechnya. On that occasion he submitted the request for extradition of the applicants and certain supporting documents. Mr Gabrichidze had initially refused this request for the reasons set out in paragraphs 62 and 63 above. Mr Ustinov had not contested that decision, but did however ask that the proceedings be expedited. 183. According to Mr Gabrichidze, the extradition proceedings were conducted with maximum transparency, given that they were covered by the media and the Procurator-General's Office organised regular press conferences on the subject. During the proceedings, firm assurances were obtained from the Russian authorities that the death penalty would not be applied and that the extradited individuals would not be subjected to inhuman and degrading treatment and would receive legal assistance. In addition, account had been taken of the fact that a moratorium on capital punishment had been in force in Russia since 1996 and that the imposition of that penalty was hardly possible since the Constitutional Court's judgment of 2 February 1999. As a Procurator-General himself, Mr Gabrichidze had had no reason to doubt the credibility of guarantees provided by a member State of the Council of Europe. 184. Having concluded that the material in his possession enabled him to consent to the extradition of five applicants, he had contacted his Russian counterpart, asking him to supervise personally the investigation proceedings in Russia and to ensure that those individuals' procedural rights were fully respected. He had even telephoned Mr Fridinskiy, Russian Deputy Prosecutor-General responsible for the North Caucasus area, who had given verbal guarantees and reassured him by referring to the assurances already provided in writing. 185. Once it had been decided to extradite the five applicants, execution of this measure depended only on the arrival of an aeroplane from Russia. Mr Gabrichidze had instructed Mr Mskhiladze to inform the applicants' lawyers of the decision immediately. Once informed, the latter could have challenged the extradition before the courts. However, Mr Gabrichidze noted that the Code of Criminal Procedure contained only one provision on this subject, which was worded in general terms, did not set out either the procedure or the time-limits for lodging an appeal and did not identify the relevant court. He conceded that, given this deficiency in the legislation and the total lack of precedent, the fact that no appeal had been made was not entirely imputable to the lawyers. Between 1996 (the year in which the Minsk Convention came into force in respect of Georgia) and October 2002, there had been no instance in Georgia of a judicial appeal against an extradition order. Mr Gabrichidze stressed the need to reform Georgian legislation in this area. 186. In view of the rumours concerning Mr Aziev's death, Mr Gabrichidze had telephoned his Russian colleagues; Mr Fridinskiy had assured him that the prisoner in question was alive and in good health. He had subsequently called Mr Fridinskiy on a regular basis; the latter had kept him abreast of progress in the proceedings and had gone so far as to provide very detailed information. This had led Mr Gabrichidze to conclude that Mr Fridinskiy was following the case closely and monitoring the applicants' situation, as he had promised. In conclusion, Mr Gabrichidze maintained that, had the Georgian authorities wished to subject the applicants to arbitrary extradition, they would have handed them over on 6 August 2002 to Mr Ustinov, who had been accompanied by a special unit for that very purpose (see paragraph 182 above). 187. Mr Bakashvili, an employee of the Ministry of Security, had led a team of investigators in the proceedings against the applicants for crossing the border illegally. He had personally dealt with the cases of Mr Khanchukayev, Mr Gelogayev, Mr Khashiev, Mr Magomadov, Mr Baymurzayev and Mr Adayev. Of those, only Mr Adayev had been in possession of a Soviet passport; this document stated that he was named Aslan Lechievich Adayev, was a Russian national and had been born on 22 July 1968. The identity of the other applicants listed above had initially been established on the basis of their own statements. Subsequently, a request for assistance in criminal matters was sent to the Russian authorities through the Procurator-General's Office (see paragraph 174 above). The “reports on identification by a third party using photographs”, the statements by the applicants' neighbours and close family, as well as other documents provided by the Russian authorities, had made it possible to establish that Mr Khanoyev was Khanchukayev Aslanbeg Atuyevich, that Mr Mirjoyev was called Gelogayev Ruslan Akhmedovich, that Mr Khashiev was called Mulkoyev Bekkhan Seidkhatanevich, that Mr Usmanov was Magomadov Akhmad Lechievich and that Mr Baymurzayev was named Alkhanov Khusein Movladinevich. 188. With regard to the secrecy surrounding their real identity, the applicants told the investigator they were afraid that their relatives and friends left behind in Chechnya would be persecuted. They had confessed to being armed when they crossed the Georgian border and had cooperated during the investigation. They had not explicitly referred to their fear, but had stated on several occasions that they did not wish to be extradited to Russia. 189. The investigation had been conducted in Chechen with assistance from Mr Saydayev, an interpreter hired from time to time under contract. The applicants all spoke Russian very well and, with the exception of the investigation interviews, had spoken with the investigator in that language. 190. Mr Bakashvili explained that one day he had been in the investigation room in Prison no. 5 with the interpreter and the lawyers for the applicants for whose cases he was responsible. The other investigators from his team were working with other applicants in neighbouring rooms. The interpreter was helping each of the investigators in turn. On leaving the room, he had met Mr Darbaydze, accompanied by a colleague, who had explained to him that a request to extradite the applicants was being examined by the Procurator-General's Office and that he needed to obtain information about their nationality. Mr Bakashvili had replied that it was not his task to instruct the interpreter or the lawyers to assist the prosecutor in that task. He had advised him to make arrangements directly with them. 191. Mr Bakashvili confirmed that, unlike investigators, prosecutors did not require a pass and could enter prisons with their badges. 192. Mr T. Saydayev, a student of international law, confirmed that he had been hired as an interpreter by the Ministry of Security's investigation team. He stated that he had met Mr Darbaydze at Prison no. 5 on only one occasion, namely 13 September 2002 (see paragraph 166 above). On that day, while he was in an investigation room with five or six Chechen prisoners, Mr Darbaydze, accompanied by a female colleague, had informed him that he represented the Procurator-General's Office. He had explained to him in Georgian that this was an extradition case and that he required information about the nationality of the prisoners in question (see paragraph 166 above). Mr Darbaydze had also asked him where he had learned to speak Georgian and Chechen so well. Considering that their conversation so far had been introductory, Mr Saydayev had asked the prosecutor what specifically he wanted interpreted for the prisoners. Mr Darbaydze had then asked him if the applicants were willing to provide the information necessary to establish their nationality. The interpreter had translated this question into Chechen. The prisoners had replied that they refused to provide any information on that subject. Mr Darbaydze had left immediately on hearing the interpretation of that reply. 193. The lawyers had not been present during this discussion and the prosecutor had not held any individual meetings with the applicants. Mr Darbaydze had merely asked Mr Saydayev to put the above question to the prisoners and had left the room following their refusal to answer. He had not handed over any documents. Mr Saydayev had provided Mr Darbaydze with a strictly one-off service on the date in question, one that was not governed by any contractual or friendly relationship. 194. During the investigation, the applicants referred to extradition proceedings several times among themselves, in Chechen; according to Mr Saydayev, the very expression made them afraid. Those discussions had always been marked by doubts and suppositions. At a meeting prior to 13 September 2002, Mr Bakashvili had asked the applicants about their wishes and whether they needed to see a doctor. The applicants had replied that the only thing they wished was not to be extradited. They explained that they watched television in their cell and had heard rumours that they might be extradited to Russia. 195. As regards the affidavit of 6 December 2002 (see paragraph 170 above), Mr Saydayev explained that following their meeting on 13 September 2002, Mr Darbaydze had visited him at home and asked him to swear before a notary that he had met the applicants in Mr Darbaydze's presence and that they had refused to take part in discussions. Mr Darbaydze apparently needed this statement on account of problems with his superiors. 196. In the affidavit in question, entitled “Statement for the Deputy Minister of Justice” and handwritten by Mr Saydayev, he stated: “On 13 September 2002, at Tbilisi Prison no. 5, I assisted investigators from the Ministry of Security as an interpreter in the case of Mr A. Adayev, Mr T. Baymurzayev and other individuals (thirteen persons in total). Once the investigators' work was complete, Mr L. Darbaydze, trainee prosecutor at the Department of International Relations in the Procurator-General's Office, arrived to question the same Chechen prisoners. He first informed them that the question of their extradition was being examined by the Procurator-General's Office and then asked them to provide the necessary explanations in order to establish their nationality. The Chechen prisoners refused, after which Mr Darbaydze drew up a report and submitted it to them for signature. The prisoners refused to sign this document. The prosecutor and the prisoners communicated through me.” 197. Mr Saydayev explained to the Court that Mr Darbaydze had dictated this text to him in the notary's presence. He had been wrong not to pay attention to the sentence about extradition, which had been slipped into the text. Mr Darbaydze had told him that he was merely required to confirm his presence in the prison on 13 September 2002, together with the applicants' refusal to provide information; Mr Saydayev had concentrated on those two points and had neglected the rest of the text, unaware that this would be of importance. 198. In conclusion, Mr Saydayev stressed that Mr Darbaydze had not, with his assistance, informed the applicants of the extradition proceedings on 13 September 2002. 199. Mr K. Akhalkatsishvili went through the reports which he had submitted on 4 October 2002 after examining Mr Khanchukayev, Mr Gelogayev, Mr Khashiev, Mr Issayev and Mr Baymurzayev, applicants, Mr Sheshberidze, a member of the special troops, and Mr Kerdikoshvili, Mr Dalakishvili, Mr Buchukuri, Mr Samadashvili and Mr Kovziridze, prison wardens. He explained that, on the instruction of the Ministry of Justice's Prisons Department, he had also taken into account the observations of the doctor in Prison no. 5 when preparing these reports. 200. It appeared from the reports in question that Mr Khanchukayev was injured on the right side of his body, had numerous bruises on his back and shoulders, measuring 9 x 1 cm, 9 x 4 cm, 6 x 3 cm, 3.5 x 3 cm, 5 x 1 cm, 4.5 x 1 cm, 12 x 1 cm, 12.2 x 1 cm, 10 x 1 cm and 10 x 0.8 cm respectively, five bruises on the face (around the nose and lips) and a bruise on the right knee. Mr Gelogayev had five bruises on his forehead, measuring 2 x 0.5 cm, 1 x 0.1 cm, 0.5 x 0.1 cm, 2.5 x 0.2 cm and 3 x 0.8 cm respectively, a bruise of 3 x 2 cm on the cheek, a bruise measuring 4 x 1.5 cm around the jaw and a bruise of 4 x 3 cm on the right shoulder. Mr Magomadov had a bruise of 3 x 1 cm on the forehead, another measuring 4 x 3 cm on the cheek, a bruise that covered all of one ear, a bruise of 4 x 4 cm on the right temple, bruising around the wrist joints, a bruise of 22 x 2 cm on the left side and a bruise of 5 x 2 cm on the left knee (see the applicants' statements in paragraph 125 above). 201. The injuries sustained by Mr Khanchukayev, Mr Gelogayev and Mr Magomadov resulted from blows inflicted by hard blunt objects and dated from 4 October 2002. They were classified as light injuries which were not damaging to their health. 202. Mr Khashiev and Mr Baymurzayev had not made any complaints and had presented no signs of blows or violence. 203. Mr Issayev had a broad haematoma around the right eye and two bruises to the forehead, each of which measured 1 x 1 cm (see paragraph 125 above). These injuries resulted from blows inflicted by hard blunt objects and were classified as light injuries which were not damaging to his health. 204. Mr Kerdikoshvili had a wound of 6 x 0.1 cm on the right shoulder and two wounds, measuring 0.5 x 1 cm and 0.3 x 0.1 cm, around the left wrist. Those injuries resulted from blows inflicted by a sharp object, dated from 4 October 2002 and were classified as light injuries which were not damaging to his health. Mr Sheshberidze apparently suffered pain when walking. He had two bruises, measuring 3 x 2.5 cm and 0.8 x 0.5 cm, on the left ankle, which was also swollen. The joint on Mr Dalakishvili's left knee was swollen and he had a bruise measuring 3 x 2.5 cm. Mr Buchukuri had a bruise measuring 3 x 2 cm on the left ankle and a bruise of 1 x 1 cm on the left testicle. Mr Samadashvili had a bruise measuring 5 x 3 cm on the right side of the chest and another, measuring 1.5 x 1 cm, on the right ankle. Mr Kovziridze had a bruise of 2 x 1.5 cm on the right hand and another measuring 3.5 x 3 cm on the left foot. Those injuries resulted from blows inflicted using hard blunt objects and dated from 4 October 2002. They were classified as light injuries which were not damaging to their health. 205. Mr Dalakishvili submitted to the Court a medical certificate and a statement that he had undergone an operation on the left knee in December 2003 on account of rupture of the anterior cruciate ligament. 206. At the Court's request, the Georgian Government made available to it in Tbilisi the applicants' prisoner files. The medical information set out below was obtained from this source. 207. It appears from the medical certificate of 6 August 2002, drawn up by the doctor in the Ministry of Security's investigation prison that Mr Khanchukayev was in good health but was suffering from swollen legs. The entry in his medical records on 4 October 2002 mentions numerous bruises, the size of which varied between 1 x 1 cm and 20 x 5 cm, as well as a fracture to the left shoulder. No mention is made of any medical treatment administered to the applicant on that date. The next entry, on 8 October 2002, states that the prison doctor treated Mr Khanchukayev for pain in the pelvis area. According to the entry for 12 October 2002, the applicant was treated by a surgeon. 208. According to medical certificates dated 6 August 2002, Mr Issayev had dressings on the left shoulder and right tibia, injured areas which had required surgical intervention on the previous day. Mr Khashiev showed a deformation of the left side of the lower jaw, together with a scar from an operation dating from a year previously. His legs were also swollen and painful. Mr Baymurzayev also had a deformation of the lower jaw and swelling of the tibias, which was making it difficult for him to walk. It appears from Mr Baymurzayev's file that he received medical treatment from December 2002 onwards for the injury to his jaw and that on 10 October 2003 he was placed in the prison infirmary, as the diagnosis showed a total deformation of the chin bone. 209. It appears that on 7 August 2002, at the Ministry of Security's request, Mr Margoshvili was transferred from a civilian hospital to the prison infirmary. 210. According to a diagnosis drawn up for the Ministry of Security on 7 August 2002 by the civilian hospital in connection with Mr Magomadov's transfer to the prison infirmary, he had an infected wound on the right side of the neck (see paragraph 138 above) and presented numerous grazes on his body. It was recommended that the wound be disinfected and the dressing changed daily or every second day. According to the entry in his medical records on 5 October 2002, treatment had been given for the swelling. 211. The entry in Mr Gelogayev's medical records on 4 October 2002 confirmed the presence of the injuries observed by the medical expert (see paragraph 200 above). No mention is made of any treatment administered to the applicant on that date. On the other hand, according to the entry on 10 October 2002, he had received “symptomatic treatment” and been issued with analgesics. 212. As they were unable to appear before the Court in Tbilisi (see paragraph 44 above), on 17 April 2004 Mr Arabidze, Mr Khidjakadze and Mr Gabaydze informed the Court in writing that they had never received a letter from Mr Mskhiladze (see paragraph 178 above). They claimed to have learned of it for the first time in April 2004, once the Court had sent it to the applicants' representatives. 213. As director of the law firm to which the letter in question had allegedly been delivered, Mr Khidjakadze stated that the signature on the document did not belong to any of his colleagues. He noted that the letter bore no registration number, although his firm's practice was to assign a number to each package as soon as it arrived. In his opinion, the document had been fabricated, and was being used by the Government to blame the lawyers for not lodging an appeal against their clients' extradition. The two other lawyers also failed to recognise the signature confirming receipt of the letter. 214. Mr Gabaydze explained that, on the evening of 3 October 2002, a friend who worked at the Ministry of Security (whose name is not disclosed, at the lawyer's request) informed him confidentially that the extradition of “certain Chechens” was being prepared. He then contacted the Chechen representative in Georgia and went with him to the Procurator-General's Office. They attempted unsuccessfully to obtain information. Mr V.M., a prosecutor, informed them by telephone that he was unaware of any such developments and asked them not to call again. Ms L.G., also a prosecutor, told them that she could say nothing over the telephone. 215. Those attempts having been unsuccessful, Mr Gabaydze went to the Rustavi-2 television channel, in order to state publicly that the secret extradition of Chechen prisoners was being planned (see paragraph 124 above). At 9 a.m. the following day, he went to the prison to try to meet his clients, but the prison doors were closed and the telephones had been disconnected. At that stage he did not know which of his clients were affected or whether the extradition had already taken place. 216. The video recording of the 11 p.m. news bulletin broadcast on Rustavi-2 on 3 October 2002 and made available to the Court by the Georgian Government did indeed contain an interview with Mr Gabaydze. The lawyer stated that, according to a reliable source, the extradition of several Chechen prisoners, arrested between 3 and 5 August on the Russo-Georgian border, was planned for the following day. He claimed that he did not know those prisoners' names, that the telephones at the Procurator-General's Office had been disconnected and that the entire proceedings were taking place in secret. However, he did not believe that the individuals with Georgian nationality would be extradited. 217. On 15 November 2002 the investigator responsible for “particularly important” cases issued an order in respect of each of the applicants concerning the “establishment of the defendant's identity”. The orders in question, which were all identically worded, noted that “documents, particularly passports, were received during the investigation” which proved that the defendants in question were Aslan Lechievich Adayev, born on 22 July 1968 in the village of Orekhovo (Achkhoy-Martan district); Khusein Mukhidovich Aziev, born on 28 September 1973 in the village of Roshni-Chu (Urus-Martan district); Rizvan Vakhidovich Vissitov, born on 1 October 1977 in the village of Goiti (Urus-Martan district); Khusein Khamitovich Khadjiev, born on 8 November 1975 in the village of Samashki (Achkhoy-Martan district) (see paragraph 72 above). “This information was also confirmed by the defendants themselves, and by other material from the case file.” The Russian Government did not submit the equivalent document concerning Mr Shamayev, one of the five extradited applicants. He was referred to in all the documents as Abdul-Vakhab Akhmedovich Shamayev. 218. On 11 November 2002 the Russian Government submitted to the Court the names of the lawyers who were representing the extradited applicants before the Russian courts. Following repeated requests from the Court, they also sent their addresses on 19 November 2002. On 22 January 2003, claiming that the lawyers enjoyed unlimited access to their clients, the Government provided details of the dates and number of meetings between them. 219. The case file shows that, on 15 November 2002, Mr Shamayev refused the assistance of Mr Zalugin, who had been assigned to him on 5 October 2002, and asked that “any other lawyer” be appointed. This handwritten request by Mr Shamayev is included in the case file. On the same date Ms Kuchinskaya was assigned to his case by virtue of a mission order issued by the head of the Minvody legal consultancy office. From 21 February 2003 Mr Shamayev was assisted by another lawyer, Mr Timirgayev, a member of the Bar of the Chechen Republic. 220. On 5 October 2002 the heads of the legal consultancy offices in Minvody and Essentuki assigned Ms Melnikova and Mr Molochkov to represent Mr Khadjiev and Mr Vissitov respectively during the preliminary investigation. On 15 November 2002 Mr Khadjiev asked that, in view of Ms Melnikova's long absence, “any other lawyer be assigned to him”. On the same date the head of the Minvody legal consultancy office assigned Ms Kuchinskaya to represent him. 221. On 5 October 2002 Mr Zalugin was assigned to represent Mr Adayev during the investigation. On 22 October 2002 Mr Adayev refused his assistance and asked that “any other lawyer” be appointed. On 16 and 21 October 2002 Mr Adayev's relatives chose Mr Lebedev (a member of the Moscow Bar from the Novatsia law firm) and Mr Khorochev (from Isk, an association of lawyers in the Odintsovo district, Moscow region) to defend his interests. Only Mr Lebedev's authority to act, approved by the director of Novatsia, is included in the case file. 222. On 5 October 2002 the head of the legal consultancy office in Essentuki assigned Mr Molochkov to represent Mr Aziev before the Procurator-General's Office. Another authority to act was drawn up on 21 October 2002 in the name of Mr Khorochev. Since 31 January 2003 Mr Aziev has been assisted by Mr Timichev, a member of the Bar of the Republic of Kabardino-Balkaria (see paragraph 238 below). 223. Until 4 October 2002 Mr Khadjiev, Mr Adayev and Mr Aziev were represented before the Georgian courts by Mr Gabaydze; Mr Vissitov was represented by Mr Khidjakadze; and Mr Shamayev by Mr Chkhatarashvili. Those lawyers were remunerated by the leadership of the Chechen-Kist community in Georgia (under contracts for legal assistance dated 5 and 6 August 2002). 224. The lawyers stated that, at 9 a.m. on 4 October 2002, they rushed to the prison to see their clients, but were refused entry. “Not knowing how to apply to the Court”, they asked their colleagues, Ms Mukhashavria and Ms Dzamukashvili, to lodge an application on behalf of their clients. Those lawyers were also denied access to the prisoners and could not therefore arrange to have authorities to act drawn up in their names. In extremely urgent circumstances, and in agreement with the leadership of the Chechen-Kist community, Mr Gabaydze, Mr Khidjakadze and Mr Chkhatarashvili prepared documents (included in the case file) delegating authority to their two colleagues, who immediately applied to the Court. 225. On 22 November 2002 Ms Mukhashavria and Ms Dzamukashvili faxed the powers of attorney authorising them to represent the extradited applicants before the Court. Those documents, which referred to Georgia as the respondent State, had been signed by the applicants' family members and friends living in Russia. 226. The lawyers explained that on 28 October 2002 they had contacted the Russian consulate in Tbilisi in order to obtain visas so that they could visit their extradited clients. They were informed orally that, in order to obtain a visa, they would have to produce a written invitation from the prison establishment in question. On 29 October 2002 they asked the Representative of the Russian Federation at the Court for assistance. He explained that he would not reply without some indication from the Court. The lawyers then asked the Court to intervene on their behalf with the Russian authorities so that visas would be issued. 227. On 5 December 2002 the Russian Government alleged that Ms Mukhashavria and Ms Dzamukashvili could not claim to be the representatives of the extradited applicants with regard to the part of the application against Russia, as the authorities to act referred only to Georgia as the respondent State. In addition, under Russian legislation a foreign lawyer could not defend an individual in Russia, either during the preparatory investigation or before the courts. However, “if they were to contact the Russian Procurator-General's Office”, the lawyers “[could] in principle visit the extradited applicants”. “Those alleged representatives ... who [supported] international terrorists in Russia [were] not considered by the Russian authorities as the applicants' representatives before the Court and [would] not be contacted by them in that capacity.” 228. On 17 June 2003 the Court decided to ask the Russian Government, in application of Rule 39 (of the Rules of Court), to allow Ms Mukhashavria and Ms Dzamukashvili unhindered access to the extradited applicants with a view to preparing the hearing on admissibility (see paragraph 24 above). On 4 August 2003 Ms Mukhashavria asked the Representative of the Russian Federation, by virtue of this decision by the Court, to help her obtain a visa for Russia and authorisation to visit the applicants in prison. In a reply dated 21 August 2003, the Representative of the Russian Federation reminded her, through the Court, that the Russian Government did not consider her as the extradited applicants' representative. He stated that the Georgian lawyers could ask the trial court before which the applicants would be brought to authorise their admission as defence counsel, but that the Government themselves could take no action in this regard. 229. On 22 August 2003 the Court again invited the Russian Government to comply with the interim measure indicated on 17 June 2003. On 1 September 2003 the Government repeated the grounds for their refusal as set out in the above-mentioned letter of 21 August. 230. At the hearing on admissibility the Russian Government submitted a graphology report of 29 August 2003 by the forensic analysis centre at the Russian Ministry of Justice. The expert who had prepared the report claimed that the authorities to act in respect of Mr Shamayev, Mr Adayev and Mr Aziev, submitted to the Court by Ms Mukhashavria and Ms Dzamukashvili, had not been signed by those applicants (see paragraph 225 above). In the case of Mr Vissitov, it had not been possible to ascertain whether the signature was indeed his, and it had been impossible to decide the question with regard to Mr Khadjiev, since the analysed specimen had been very short and incomplete. 231. In reply, Ms Mukhashavria pointed out that those applicants had been extradited before their lawyers could obtain authorisation to visit them. After their arrival in Russia, she had attempted unsuccessfully to make contact with them. She had then appealed to their relatives and friends, and it was the latter's signatures which appeared on the authorities to act. 232. On 20 November 2002 the Registry of the Court informed Mr Molochkov, Ms Kuchinskaya, Mr Khorochev and Mr Lebedev (see paragraphs 21822 above) that their clients had attempted to lodge an application with the Court on 4 October 2002. They were asked to make contact with the applicants so that they could confirm or deny their intention to apply to the Court. On 9 December 2002 the Representative of the Russian Federation replied to the Court, stating that the lawyers “objected to the Court's attempts to contact them”. Indeed, Mr Khorochev and Mr Lebedev never sent a reply. Mr Molochkov and Ms Kuchinskaya replied only in August 2003 (see paragraph 241 below). 233. Consequently, and in accordance with the authorisation granted by the President of the Section (see paragraph 16 above), on 10 December 2002 the Registry sent identical letters (by registered mail requiring acknowledgment of receipt), accompanied by application forms, directly to the extradited applicants at the address of the pre-trial detention centre in town A. On 16 January 2003 the Court received the five acknowledgments of receipt, signed on 24 December 2002 by the head of the prison secretariat. In September 2003 the Russian Government produced a statement, delivered on an undetermined date by the head of the prison administration of the pre-trial detention centre in question, stating that no letters from the Court to the extradited applicants had arrived at that establishment. Following the Court's communication of the above-mentioned acknowledgments of receipt, the Russian Government provided other explanations (see paragraph 239 below). 234. Mr Shamayev, Mr Vissitov and Mr Adayev never replied to the Court to confirm or deny their intention of applying to the Court as expressed on 4 October 2002. 235. On 27 October 2003 the Court received an application form from Mr Khusein Khamitovich Khadjiev, duly completed and dated 8 October 2003, which named both Georgia and Russia as the respondent States. It had been posted on 9 October 2003 by the administration of the pre-trial detention centre in town B (see paragraph 53 above). Mr Khadjiev provided an authority to act made out in the name of Mr S. Kotov, a lawyer. Although the relevant box on this document referred only to Georgia as the respondent State, the form contained complaints against both Georgia and Russia (see paragraphs 388, 439 and 484 below). 236. On 19 December 2003 those documents were sent to the Governments and to Ms Mukhashavria and Ms Dzamukashvili. Mr Kotov was asked to provide certain additional information, particularly with regard to his client's application to the Court on the evening of his extradition and his representation before the Court by the Georgian lawyers. He was also asked to specify who would represent his client before the Court with regard to the part of the application concerning Russia. 237. To date, no reply has been received by the Court from Mr Kotov. 238. Mr Khusein Mukhidovich Aziev, one of the five extradited applicants, did not return the application form sent to him by the Court on 10 December 2002. On the other hand, on 19 August 2003 he lodged a separate application with the Court, referring only to Russia (Aziev v. Russia, no. 28861/03). Represented by Mr Timichev (see paragraph 222 above), he complained of the impossibility of being tried by a competent court in Russia and about the conduct of the Russian lawyer who had been assigned to him after his illegal extradition to that country. Having initially made no reference to any application in connection with his extradition, it was not until 9 October 2003 that Mr Aziev confirmed that he had submitted such a complaint to the Court and asked that case no. 28861/03 be joined to the present application. In a letter of 30 October 2003, sent to the Court in connection with application no. 28861/03, he confirmed that he had learned from his lawyer and the media that the Russian Government were denying that he had applied to the Court from Georgia, with Ms Mukhashavria's assistance, in order to complain about his illegal extradition. He stated that he endorsed all the steps taken by that lawyer, even if it had not always been possible to take his instructions. 239. On 3 December 2003 the Russian Government explained the misunderstanding over the receipt by the extradited applicants of letters from the Court. They alleged that the letters had been delivered to the applicants in person, and had been left with them rather than being included in their prisoner files. The absence of any record in those files lay behind the statement made by the head of the prison administration to the effect that the prison had never received the correspondence in question (see paragraph 233 above). The Government submitted reports on the administrative inquires subsequently conducted into this matter in the pre-trial detention centre and handwritten letters from Mr Shamayev, Mr Adayev, Mr Khadjiev and Mr Vissitov, dated 3 November 2003. 240. In those letters Mr Shamayev stated that he had received the Court's correspondence but had not replied in person. However, he did not rule out the possibility that his lawyer had sent a complaint to the Court on his behalf. Mr Adayev confirmed that he had received the Court's correspondence at the end of 2002 and that he had handed it over to his lawyers for them to reply. He also stated that he had sent a complaint to the Court from Georgia with the help of a lawyer. Mr Khadjiev stated that, while in Georgia, he had sent a complaint to the Court with the assistance of a lawyer. On 24 December 2002 he had received the Court's letter in the pre-trial detention centre in Russia. Mr Vissitov alleged that he had sent a complaint to the Court from Georgia, with the help of a lawyer. He had subsequently received a letter from the Court in Russia, but had lost it during a change of cell. No letter was submitted from Mr Aziev. However, the Government submitted an explanation from an employee in the SIZO administration for the Stavropol region, stating that Mr Aziev, who had been questioned on 3 November 2003, had confirmed that he had received a letter from the Court at the end of 2002. Unlike the other applicants, Mr Aziev had not written an explanatory letter since he did not speak Russian well and did not write in that language. 241. On 26 August 2003 Mr Molochkov and Ms Kuchinskaya replied to the Court's letter of 20 November 2002 (see paragraph 232 above). They alleged that Mr Shamayev, Mr Khadjiev, Mr Vissitov and Mr Aziev, their former clients, had never complained of a violation of their rights and had never expressed a wish to apply to the Court. Having received no instructions from them, they had been unable to contact the Court on their own initiative. They had always had adequate time and facilities to prepare their clients' defence and opportunities to meet them without prison wardens being present. 242. On 15 September 2003 the Russian Government produced photographs of four of the extradited applicants, taken in their respective cells in the pre-trial detention centre in town B, and a photograph of Mr Aziev, dated 23 August 2003, who was then detained in a pre-trial detention centre in town A (see paragraph 53 above). Unlike the other applicants, Mr Aziev appears in only one photograph and is shown from a distance in a general shot of his cell. Apart from the observation that the conditions of detention seemed to be better in the first SIZO mentioned above, the photographs of the cells included with this submission gave rise to no particular comments from the Court. 243. On 8 January 2004 the Russian Government alleged that Mr Khadjiev's submission of a complaint to the Court (see paragraph 235 above) marked a turning point in the instant case and was a breakthrough in the procedural impasse. They had no doubt that Mr Khadjiev had indeed applied to the Court on this occasion and claimed that there was consequently no further point in considering the alleged communications which had previously been sent by him to the Court or those sent on behalf of the four other extradited individuals. The Russian Government stated that they recognised the authority to act given by Mr Khadjiev to Mr Kotov in his application against Georgia. They requested that this application be subject to the “ordinary procedure” and be communicated to them, and that all of the previous proceedings in the instant case be annulled. In their opinion, this would put an end to “non-procedural activities in this case”. On 5 and 13 February 2004 the Court reminded the Government that Mr Khadjiev's complaints had been communicated to the respondent Governments prior to consideration of their admissibility and that they did not require any fresh communication measure. 244. With regard to its attempts to question the five extradited applicants and the two applicants who disappeared in Tbilisi and are now detained in Russia, the Court refers to paragraphs 27 et seq. above. 245. According to the medical department of the Georgian Ministry of Justice, the applicants presented no injuries on 4 October 2002. 246. On 14 November 2002, in conditions of strict confidentiality, the Russian Government produced medical certificates drawn up on 4 November 2002, a month after their extradition. According to the prison doctor, the applicants had made “no complaints about their state of health and were, in general, in good condition”. On 22 January 2003 the Government submitted new medical certificates, dated 15 January 2003 and signed by a cardiologist, a neurologist, a generalist and a surgeon. On 1 September 2003 they submitted further medical certificates, drawn up on 11 August 2003. The most recent medical certificates, submitted on 25 February 2004, were dated 20 February 2004 and were drawn up by doctors from the civilian hospital in town B, in the Stavropol region. 247. According to the medical certificates dated 4 November 2002 and 15 January 2003, Mr Vissitov had complained of a dryness of the throat and a dry cough. His condition was described as “objectively satisfactory”. Monitoring by the medical service was recommended. According to the medical certificate of 11 August 2003, Mr Vissitov had made no complaint concerning his state of health and did not present any physical injury. He had a cataract on the left eye and a fracture of the nose bone was noted in July 2003. A psychiatric examination on 13 February 2003 found that he was in good psychological health. X-rays taken on 18 October 2002 and 24 July 2003 showed no chest pathology. At no point during his detention had Mr Vissitov requested medical assistance. According to a medical certificate dated 20 February 2004, the generalist found evidence of dystonia. 248. On 15 January 2003 it was noted that Mr Khadjiev had been ill for two days. He complained of hot flushes, a cough and shivering. The doctor observed increased vesicular murmurs in the lungs, an acute viral respiratory infection complicated by tracheobronchitis, and possible pneumonia of the right side. His state was described as “objectively satisfactory”. Treatment in the medical unit was considered necessary. 249. The medical certificate of 11 August 2003 mentions old traces of a fracture of the nose bone, an appendectomy in 1998, and a gunshot wound to the right hip dating from July 2002. A psychiatric examination on 13 February 2003 found that he was in good psychological health. X-rays of 18 October 2002 and 24 July 2003 showed no chest pathology. Mr Khadjiev requested medical treatment on 20 February (for an acute viral respiratory infection) and 3 April 2003 (for acute laryngitis). He had made no other requests for medical assistance. According to the medical certificate of 20 February 2004, the generalist found evidence of dystonia and cephalalgia. 250. According to the medical certificates dated 4 November 2002 and 15 January 2003, Mr Shamayev complained of general weakness, acute pain in the hips, dryness of the throat and mouth, and a dry cough. A week prior to 15 January 2003 he had suffered an acute viral respiratory infection. Normal vesicular murmurs in the lungs and chronic cholecystitis (inflammation of the gall-bladder) in remission were observed. His condition was described as “objectively satisfactory”. According to the medical certificate of 11 August 2003, Mr Shamayev made no complaint about his state of health. His medical records revealed bruising to the left shoulder. A psychiatric examination on 13 February 2003 found him to be in good psychological health. X-rays dated 18 October 2002 and 24 July 2003 showed no chest pathology. Mr Shamayev had not asked for medical assistance at any point during his detention. According to the medical certificate of 20 February 2004, the generalist found hypotonic dyskinesia of the digestive tract. 251. According to the medical certificates dated 4 November 2002 and 15 January 2003, Mr Adayev had made no complaint about his state of health. His condition was described as “objectively satisfactory”. The medical certificate dated 11 August 2003 mentions pale pink bruising on the chest, a gunshot wound to the left shoulder dating from 1994 and a traumatism on the coccyx dating from 1986. A psychiatric examination on 13 February 2003 found him to be in good psychological health. X-rays taken on 13 March and 24 July 2003 showed no chest pathology. On 9 December 2002 Mr Adayev was examined by a doctor following an episode of hypertension and post-traumatic neuritis of the left shoulder. He received medical treatment on 21 February and 17 March 2003. 252. According to the medical certificates dated 4 November 2002, 15 January and 11 August 2003, Mr Aziev had made no complaints about his health. His condition was described as “objectively satisfactory”. Mr Aziev had not asked for medical assistance at any point during his detention. On 20 February 2004 the generalist found no evidence of any pathology. “It is forbidden to extradite a citizen of Georgia to a foreign State except in those cases prescribed by international treaty. An appeal against any extradition decision lies to the courts.” “3. Anyone arrested or otherwise deprived of his or her liberty shall be brought before a competent court within forty-eight hours. If the court fails to rule on the detention or other custodial measure within twenty-four hours following the hearing, the individual concerned must be immediately released. ... 5. An arrested or detained person must be informed at the time of arrest or detention of his or her rights and the grounds for the deprivation of liberty.” “Everyone has the right to apply to a court for protection of his or her rights and freedoms.” “No one may be detained without an order of a judge or other judicial decision ...” “The length of detention during the preparatory investigation shall not exceed three months; this period shall run from the date of the suspect's arrest or the defendant's placement in detention. The date on which the prosecutor refers the case to a court shall be taken as the end of that detention period.” This Article also provides for the possibility of extension of the detention period by the competent court, but such detention may not under any circumstances exceed nine months (which is also the period provided for by the Constitution). “A judicial remedy is available in respect of an action or decision by an inquiry officer, investigating body, investigator or prosecutor which the individual concerned considers unfounded or unlawful, in the case of (a) an order to discontinue the case, taken by the investigating body, investigator or prosecutor; (b) a finding of no case to answer, reached by the investigating body, investigator or prosecutor.” “1. By virtue of an international agreement on mutual judicial assistance, a foreign State may request the extradition of one of its citizens who is in Georgian territory if that individual is suspected of having committed a crime in his or her own country, or if he or she has been convicted of a crime by a court of that country or if he or she has committed a crime against his or her country in Georgian territory. 2. The extradition request must comply with the requirements laid down in the corresponding international agreement and must emanate from a competent body. ... 4. If the Georgian Procurator-General considers the extradition request to be lawful and well-founded, he or she shall give instructions for its execution and may, where appropriate, request the assistance of the Georgian Ministry of Foreign Affairs. ... 6. ... If the person whose extradition is requested has been placed under investigation on suspicion of having committed a crime in Georgian territory, his or her extradition may be postponed until such time as judgment is delivered, the sentence has been served or he or she is released for another lawful reason. 7. In the cases provided for in paragraph 6 of this Article, the Georgian Supreme Court may, at the request of the competent bodies of the foreign State, decide to hand over the latter's citizen on a temporary basis. If an individual extradited in such a way is given a sentence heavier than or equivalent to that which remained to be served in Georgia, he or she shall serve the sentence in his or her own country and shall not be returned to Georgia.” “An alien shall not be extradited if he or she has been granted political asylum in Georgia.” “1. The arrest [and] detention ... of an individual whose extradition is requested shall only be possible if the request is accompanied by a warrant (order, instruction) duly certified by a competent public body and refers to procedural measures restricting his or her rights and freedoms ... guaranteed under the Constitution. 2. The entity from which the extradition request emanated shall be immediately informed of the execution of the measures mentioned in the preceding paragraph. 3. A foreign national who has been detained in accordance with an extradition request may be detained for a maximum duration of three months, unless a fresh judicial warrant (order) for extension of the detention is produced. 4. An individual against whom extradition proceedings have been brought shall be entitled to apply to a court for protection of his or her rights.” 255. The CCP contains no provisions concerning the right of an individual who is subject to extradition proceedings to have access to material from the extradition file. Under Article 6 of the Criminal Code, it is prohibited, unless otherwise provided in an international treaty, to extradite a Georgian national or a stateless person who is permanently resident in Georgia with a view to subjecting him or her to criminal proceedings or the enforcement of a sentence in another country. Equally, it is forbidden to extradite an individual to a country in which the crime with which he or she is charged is subject to the death penalty. A refugee is a person who is not of Georgian nationality or origin and who has been obliged to leave the country of which he or she is a national on account of persecution based on race, religion, ethnic origin, membership of a social group or political opinions, and who cannot or does not wish to receive the protection of that country (section 1(1)). Individuals who have been granted refugee status must register annually with the Ministry for Refugees (section 4(3)). A refugee may not be returned to his or her country of origin so long as the circumstances described in section 1 persist (section 8(2)). The individual will lose his or her refugee status should those circumstances cease to exist. The decision to suspend or withdraw refugee status is taken by the Ministry for Refugees (section 10). 258. In its judgment of 28 October 2002 in the Aliev case, the Criminal Bench of the Supreme Court held: “...in accordance with Article 42 § 1 of the Constitution, everyone has the right to apply to a court for protection of his or her rights and freedoms. Article 259 § 4 of the Code of Criminal Procedure states that a person against whom extradition proceedings have been brought is entitled to defend his or her rights through the courts. Yet the Code of Criminal Procedure does not prescribe the procedure to be followed when examining such a request ... Nonetheless, this shortcoming in the legislation cannot prevent the individual from exercising his or her rights as enshrined in the Constitution and the Code of Criminal Procedure ... The Bench considers that Mr Aliev's request must be examined on the basis of an interpretation by analogy with Article 242 of the Code of Criminal Procedure, which states that an action or decision of the inquiry officer, investigator or prosecutor may be challenged before the courts if the individual concerned considers it to be unfounded or unlawful. Given that the decision to extradite Mr Aliev was taken by the Procurator-General's Office, his application must be examined by the Krtsanissi-Mtatsminda Court of First Instance in Tbilisi, which has territorial jurisdiction.” “The internationally recognised principles and rules of international law and the international treaties to which the Russian Federation is a party are an integral part of its legal system. Where such international treaties provide for rules different from those in the domestic legislation, the rules of the international treaty shall prevail.” “Until such time as it is abolished, capital punishment may be provided for by federal law as an exceptional sentence imposed in the event of particularly serious crimes against human life, and the defendant must have the right to have his or her case examined in a court by a jury.” “An attack on the lives of employees of the police or security forces and their close relatives, either for the purpose of obstructing their lawful activities to ensure public order and security or in order to exact revenge for such activities, shall be punishable by a prison term ranging from twelve to twenty years, the death penalty or life imprisonment.” In accordance with an amendment of 21 July 2004, the last sentence of this Article now reads: “... shall be punishable by a prison term ranging from twelve to twenty years, life imprisonment or the death penalty.” 261. The Presidential Decree of 16 May 1996 on the gradual elimination of the death penalty as a result of Russia's membership of the Council of Europe “In accordance with the Recommendation of the Parliamentary Assembly of the Council of Europe and in the light of Article 20 of the Constitution of the Russian Federation concerning the provisional nature of the imposition of the death penalty as an exceptional punishment in the event of particularly serious crimes against human life, I hereby order: (1) the Government of the Russian Federation to prepare within one month a draft federal law on the Russian Federation's accession to Protocol No. 6 of 22 November 1984 to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, with a view to its submission to the State Duma (Federal Assembly); (2) the Chambers of the Federal Assembly of the Russian Federation to expedite the enactment of the Criminal Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and the Code on the Execution of Criminal Sentences; ... to consider, when examining the draft Criminal Code, the question of reducing the number of offences for which the death penalty may be imposed.” 262. The relevant provisions of the Constitutional Court's judgment of 2 February 1999 “5. From the entry into force of this judgment and until such time as assize courts are introduced throughout the territory of the Federation, the death penalty may not be imposed either by an assize court or by a bench composed of three professional judges or of a single judge and two lay assessors.” 263. The Federal Law on the Prosecution Service, dated 17 January 1992 “... The prosecutors of the federal subjects of the Russian Federation shall be subordinate to and report to the Procurator-General of the Russian Federation, who shall be entitled to remove them from their posts.” “The Procurator-General shall manage the prosecution service of the Russian Federation and shall issue orders, indications, instructions and provisions concerning the organisation of the prosecution service's activities which shall be binding on all employees of the prosecution service's bodies and establishments.” (Chapter 4 – Supervision by the prosecution service of compliance with the law by the administrative authorities of the entities and establishments responsible for the application of sentences ... and by the authorities responsible for premises used for police custody and detention) “The supervision shall concern (a) the lawfulness of the incarceration of detainees in places of police custody and pre-trial detention, in corrective labour establishments and other bodies and establishments responsible for the application of sentences and of compulsory measures that have been decided by the courts; (b) observance of the rights and obligations of persons held in police custody, detainees, convicted prisoners and persons subject to compulsory measures, and compliance with the rules and conditions of their detention as set out in the legislation of the Russian Federation ...” “In the context of his or her duty to supervise compliance with the law, the prosecutor may (i) visit the entities and establishments referred to in section 32 above at any time; (ii) question those detained in police custody, detainees, convicted prisoners and persons subject to compulsory measures; ... (iii) require that the authorities create conditions such as to guarantee the rights of individuals in police custody, detainees, convicted prisoners and persons subject to compulsory measures; supervise the conformity with the law of measures ... taken by the establishments referred to in section 32 above; demand explanations from public employees; prepare objections [protests] and opinions; commence a prosecution or initiate proceedings for administrative offences ...” “The prosecutor's orders or requests with regard to the rules and conditions of detention of persons held in police custody, detainees, convicted prisoners and persons subject to compulsory measures ..., prescribed by law, shall be binding on the authorities ...” “When conducting a criminal prosecution before a court, individual prosecutors take part in the proceedings on behalf of the public prosecution service.” 264. The Code of Criminal Procedure (“CCP”), in force since 1 July 2002 “The internationally recognised principles and rules of international law and the international treaties to which the Russian Federation is a party are an integral part of the Russian Federation's legislation governing criminal procedure. Where such international treaties provide for rules different from those set out in the present Code, the rules contained in the international treaty shall prevail.” “Irrespective of the locality in which an offence was committed, proceedings with regard to a criminal case shall be conducted in the territory of the Russian Federation in accordance with the present Code, unless otherwise provided by an international treaty to which the Russian Federation is a party.” “1. Criminal cases shall be examined by a court composed of a bench or of a single judge. 2. In courts of first instance, criminal cases shall be examined by the following compositions: ... (b) At the defendant's request, the judge of a federal court and a jury of twelve persons shall examine cases concerning the crimes set out in Article 31 § 3 of this Code. ...” The crimes set out in Article 31 § 3 of the CCP are, inter alia, those punishable under Articles 205, 209, 317 and 322 § 2 of the Criminal Code (see paragraphs 66 and 71 above). “1. Pre-trial detention shall be imposed by a judicial decision on an individual who has been placed under investigation or a defendant accused of committing a crime punishable by more than two years' imprisonment, where another less severe preventive measure cannot be applied. ... 5. Pre-trial detention may be imposed in the absence of a defendant only if an international search warrant has been issued against him or her.” “Detention pending the investigation shall not exceed two months.” This initial period may subsequently be extended in certain circumstances by a court or judicial officer, in particular on account of the complexity of the case; however, the overall length of detention may not in any circumstances exceed eighteen months. “Copies of the judgment shall be issued to the convicted or acquitted individual, his or her counsel and the public prosecution service within five days of its delivery. Within the same time-limit, the civil party, the plaintiff or the defendant in civil proceedings, together with their counsel, may also obtain copies of the judgment, subject to the submission to the court of a written request to that effect.” 265. The Federal Law of 27 December 2002 amending the Law on the entry into force of the new CCP “... Article 30 § 2 (b) of the Code of Criminal Procedure shall come into force on 1 July 2002 in the regions of ... Krasnodar and Stavropol ...; ... on 1 January 2007 in the Chechen Republic.” The second date will mark the completion of the introduction of assize courts in the Russian Federation. 266. Georgia and the Russian Federation are parties to the Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”) and to the European Convention on Extradition. “The Contracting Parties undertake, subject to the conditions set out in the present Convention and at the request of one of the Parties, to hand over to each other persons found in their territory for the purpose of criminal prosecution or the enforcement of a judgment delivered against them. Extradition for the purpose of criminal prosecution shall take place if the act or omission in question is an offence under the law of the requesting Party and that of the requested Party, and if it is punishable by a sentence of imprisonment superior to one year or by a more severe punishment. Extradition for the purpose of the enforcement of a judgment shall take place if the individual whose extradition is requested has been sentenced to a prison term of more than six months or to a more severe punishment for having committed an act or omission that is an offence under the law of the requesting Party and the requested Party.” “Relations concerning questions of extradition and criminal prosecution shall be carried out through the intermediary of the General Procurators (prosecutors) of the Contracting Parties. Relations concerning the completion of different proceedings or other acts requiring the approval ('sanction') of a prosecutor or a court shall be carried out through the intermediary of the prosecution services' bodies, in accordance with the arrangements decided by the General Procurators (prosecutors) of the Contracting Parties.” Article 11 – Capital punishment “If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death-penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death-penalty will not be carried out.” Article 28 §§ 1 and 2 – Relations between this Convention and bilateral agreements “1. This Convention shall, in respect of those countries to which it applies, supersede the provisions of any bilateral treaties, conventions or agreements governing extradition between any two Contracting Parties. 2. The Contracting Parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein.” When depositing the instrument of ratification on 15 June 2001, Georgia made the following reservation: “Georgia declares that it will not allow the extradition of any person in connection with offences punishable by the death penalty under the requesting Party's legislation.” 267. Council of Europe “... The Parliamentary Assembly notes that the Russian Federation shares fully its understanding and interpretation of commitments entered into ... and intends: ... (ii) to sign within one year and ratify within three years from the time of accession Protocol No. 6 to the European Convention on Human Rights on the abolition of the death penalty in time of peace, and to put into place a moratorium on executions with effect from the day of accession; ...” “... 4. With regard to the human rights situation in the Chechen Republic, the Assembly remains distressed by the number of killings of politically active individuals, by repeated disappearances and the ineffectiveness of the authorities in investigating them, as well as by the widespread allegations and indications of brutality and violence against the civilian population in the republic. 5. The Russian authorities seem unable to stop grave human rights violations in Chechnya. ... [T]he Assembly can only conclude that the prosecuting bodies are either unwilling or unable to find and bring to justice the guilty parties. The Assembly deplores the climate of impunity which consequently reigns in the Chechen Republic and which makes normal life in the republic impossible. ...” “... 7. The mandate of the Organisation for Security and Co-operation in Europe's Assistance Group to Chechnya has not been renewed by the Russian Government. The Council of Europe's European Committee for the Prevention of Torture (CPT) has complained about the Russian Federation's lack of co-operation with it. The Russian Federation has yet to authorise the publication of its reports and the recommendations of the Council of Europe Commissioner for Human Rights are implemented with long delays, if at all. The European Court of Human Rights, set up to deal with individual violations of human rights, cannot hope to cope effectively with systematic human rights abuses on the Chechen scale via individual complaints. Lamentably, no member State or group of member States has yet found the courage to lodge an interstate complaint with the Court. ...” “... 6. The dramatic human rights situation in the Chechen Republic described in the texts adopted by the Assembly in April 2003 has unfortunately not improved significantly since then. The number of 'special operations' or 'sweeps' by security forces has in fact significantly decreased, in particular since the end of 2003. However, arbitrary detentions, often followed by the 'disappearance', torture or severe beatings of detainees and the theft or destruction of property at the hands of security forces (Chechen and federal) but also of certain rebel groups, are still occurring on a massive scale, especially as seen against the background of the small population of the Chechen Republic and the losses already suffered in previous years. ... ... 11. The Assembly is outraged that serious crimes have been committed against applicants to the European Court of Human Rights and their family members, which have not yet been elucidated. Such acts are totally unacceptable as they may deter applications to the Court, which is the centrepiece of the human rights protection mechanism established by the European Convention on Human Rights. ...” “... [T]he information gathered by the CPT's delegation in the course of its February/March and April 2000 visits indicated that a considerable number of persons deprived of their liberty in the Chechen Republic since the outset of the conflict had been physically ill-treated by members of the Russian armed forces or law enforcement agencies. ... ... ... [I]n the course of the Committee's most recent visit to the Chechen Republic, in March 2001, numerous credible and consistent allegations were once again received of severe ill-treatment by federal forces; in a number of cases, those allegations were supported by medical evidence. The CPT's delegation found a palpable climate of fear; many people who had been ill-treated and others who knew about such offences were reluctant to file complaints to the authorities. There was the fear of reprisals at local level and a general sentiment that, in any event, justice would not be done. ... ... According to the information gathered during the March 2001 visit, there were clear indications on some of the bodies that the deaths were the result of summary executions; further, certain of the bodies had been identified by relatives as those of persons who had disappeared following their detention by Russian forces. ... In their reply forwarded on 28 June 2001, the Russian authorities indicate that they are not willing to provide the information requested or to engage in a discussion with the CPT on the matters indicated above; they assert that such matters do not fall within the Committee's purview under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Such an approach is inconsistent with the object and purpose of the international treaty establishing the CPT and can only be qualified as a failure to cooperate with the Committee.” “... 2. On 10 July 2001, the CPT issued a public statement concerning the Chechen Republic. ... Subsequently, some steps forward have been made. ... ... 4. [However,] in the course of the CPT's visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation's doctors displayed physical marks or conditions which were fully consistent with their allegations. ... ...” 268. Human Rights Watch The reports entitled “Russia/Chechnya – Swept under: Torture, forced disappearances, and extrajudicial killings during sweep operations in Chechnya” (vol. 14, no. 2 (D), February 2002), “Confessions at any cost: Police torture in Russia” (November 1999) and “Welcome to Hell – Arbitrary detention, torture, and extortion in Chechnya” (October 2000) describe acts of torture, especially medical torture, against Chechen prisoners and arbitrary executions. Other prisoners have disappeared without trace. Thus, an entire people was allegedly exposed to a serious threat of extermination. In addition to those observations, the reports contain about sixty interviews with Chechens who had been held in about a dozen “detention centres” across Chechnya and the neighbouring Caucasus regions and had survived torture, rape and ill-treatment. They had been released as a result of bribes paid to Russian soldiers. The reports describe different forms of torture carried out in those centres. The report “Welcome to Hell” presents evidence of the acts of torture and ill-treatment experienced by Chechen prisoners in pre-trial detention centres in the Stavropol region. The methods regularly used in those premises include the “live corridor” (the prisoners are beaten as they go through a corridor), the “beating of kneeling and bent-over prisoners” and “beating of naked prisoners with clubs, carried out in shower rooms”. All the Chechen former prisoners who gave evidence to Human Rights Watch used false names and were described using pseudonyms, which were cited in quotation marks. 269. Amnesty International and the Russian Human Rights Commissioner Group According to an Amnesty International document published in 2000, the two prisons in which the extradited applicants were initially placed and in which they are currently detained are “filtration camps”. Amnesty International has listed various forms of torture practised in those camps in the context of the conflict which is raging throughout Chechnya. “Testimonies ... confirm that detainees (both men and women) are raped, tortured with electric shocks and tear gas and beaten with hammers and clubs. Other forms of torture consist in sawing the victim's teeth or striking him or her until the eardrums burst.” The Russian Human Rights Commissioner Group confirmed this information and submitted extracts from the administrative order under which filtration centres had been temporarily opened in the two establishments in which the applicants were and are detained, the purpose being to check the prisoners' identities and to establish their role in the armed conflict against the army and the armed forces of the Ministry of the Interior (information published by the Russian association Memorial). 270. The United Nations Special Rapporteur on Torture (E/CN.4/2002/76, 14 March 2002, §§ 6 and 10; E/CN.4/2002/76/Add.1, §§ 1268-310) The majority of cases brought to the Russian Government's attention concerned individuals detained by the Russian forces in Chechnya. The acts of torture and ill-treatment reported were, inter alia, the following: imprisonment in a dark cell; blows to the entire body from a hammer or rifle butt; a deep knife wound to the leg; setting of dogs on detainees; forcing the victim to remain in a kneeling position for eight hours; electric shocks; punching; torture consisting of flaying and scalping; broken limbs; severed fingertips or nose; firing at the victim at point-blank range; packing prisoners for several days in unheated parked vehicles; deprivation of nourishment; access to toilets denied; rape or threat of rape against female prisoners; stab wounds to the entire body; eyes torn out; burns to the legs and arms. 271. Report of 15 September 2004 by the International Helsinki Federation for Human Rights “... E. Persecution of Applicants to the European Court of Human Rights ... As the Russian judicial system fails to address the crimes committed in Chechnya, there remains the possibility of applying to the European Court of Human Rights (ECtHR) ... At the same time, many applicants have been threatened, harassed, detained, or even forcibly disappeared and killed. Some of the cases, notably that of Lipkhan Bazaeva who is both an activist and an applicant, have already been mentioned. There was a sharp rise in cases of persecution of applicants in 2003 and 2004. This pattern can be explained partly by the fact that there is a growing number of applicants. But even when this is taken into account, the number of attacks appears to have grown disproportionately to the number of applicants – a fact which suggests that persecution of applicants is an emerging trend. ... Some of the organisations that represent applicants from Chechnya before the ECtHR, namely Memorial, European Human Rights Advocacy Centre, and Chechnya Justice Initiative, have reported other incidents aimed at some of their clients. In letters to the ECtHR they mention 13 cases, with a total of 29 counts of abuse, in which different applicants have been persecuted in connection with their search for justice. ... All in all, the cases of persecution of ECtHR applicants include both verbal and written threats, sometimes against other family members. In one case an applicant lost his job. In two cases soldiers illegally searched an applicant's house. At least one of the applicants was robbed. In four cases, applicants were beaten. In one case, the applicant went into hiding. In at least two cases the applicants are considering withdrawing their applications to the courts. Two formally withdrew their applications. Most of the threats and beatings were reported in 2003 and 2004. Federal forces are believed to be involved in all of these cases. The organisations representing the applicants claim that notifications about incidents from the ECtHR to the Russian authorities have had a positive effect in some cases, easing the pressure on individual applicants and their families. ...” The report describes the circumstances in which several applicants, including Zura Bitieva (killed, application no. 57953/00), Marzet Imakaeva (persecuted, application no. 7615/02) and Sharfudin Sambiev (persecuted, application no. 38693/04), were subjected to violence. “... F. Persecution of Foreign Human Rights Defenders ... The Organisation for Security and Cooperation in Europe (OSCE) established an office in Znamenskoe, Chechnya in June 2001, but the Russian Federation refused to extend the mandate of the OSCE Advisory Group when it expired at the end of 2002. While there have been few foreigners inside Chechnya, some international and humanitarian organisations have maintained offices in Ingushetia. However, a number of the foreign representatives left Ingushetia after the June 2004 attacks. The international presence in Northern Caucasus is becoming increasingly diluted, resulting in the near-absence of witnesses and help from the outside. ...”
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train
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001-80355
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ENG
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BGR
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ADMISSIBILITY
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KABAKCHIEVI v. BULGARIA
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Inadmissible
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Peer Lorenzen
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The first applicant, Mrs Olga Timofeeva Kabakchieva, is a Russian national, who was born in 1917 and lives in Sofia. In 2006 the first applicant’s sons, M r Alexander Kabakchiev, born in 1947, and Mr Hristo Kabakchiev, born in 1957 (the second and the third applicants, both Bulgarian nationals), joined the proceedings before the Court. The applicants were represented before the Court by Mrs S. Margaritova-Voutchkova, a legal adviser practising in Sofia. The respondent Government were represented by their agent Mrs M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In March 1945, by decision of a State authority the first applicant and her husband were granted the right to use two rooms and the kitchen in an apartment in Sofia. In 1947, after the birth the second applicant, the competent authority allocated an additional room to the family. At that time the apartment, which covered 173 square metres, belonged to a private joint-stock company. In 1947 the property of the company was expropriated without compensation. In 1950 the apartment at issue was allocated to the State Military Housing Fund at the Ministry of Defence. In 1951 the fund issued a tenancy order to the first applicant’s husband. In 1968, at a time when he was Deputy Minister of Defence, the first applicant’s husband purchased the whole apartment from the Ministry of Defence. In accordance with the applicable rules of family law, the first applicant acquired half of the property. In 1993 the heirs of the pre-nationalisation owners of the apartment brought an action against the first applicant’s husband under section 7 of the Restitution Law. The applicants were not parties to the proceedings. On 18 October 1995 the District Court granted the claim. It found, inter alia, that the apartment had been purchased in breach of the relevant housing regulations as in force in 1968 since it had been significantly larger than permitted for a four-member family, as the applicants’. The court also found that certain procedural rules had not been complied with and that, in all likelihood, the first applicant’s husband had abused his position of Deputy Minister of Defence. On appeal, on 14 July 1997 the Sofia City Court quashed the District Court’s judgment and dismissed the claim of the pre-nationalisation owners’ heirs. The court found that all relevant regulations as in force between 1945 and 1968 had been complied with and that the allegation that the first applicant’s husband had abused his position was groundless. The heirs of the pre-nationalisation owners submitted a petition for review (cassation). On 22 February 1999 the Supreme Court of Cassation quashed the Sofia City Court’s judgment and upheld the District Court’s judgment. The Supreme Court of Cassation agreed that the allegation of abuse of office had not been proven. However, the apartment had largely exceeded the needs of the applicants’ family under the rules applicable at the relevant time. As a result, the title of the first applicant’s husband to the apartment at issue was null and void. The judgment of 22 February 1999 was final and enforceable. On an unspecified date shortly after February 1999 the first applicant, who had not been a party to the proceedings until then, submitted a request for reopening, stating that in accordance with the Code of Civil Procedure she should have been cited as a party since she was the owner of one half of the apartment at issue. The first applicant’s husband died in May 1999. The first applicant and her two sons (the second and the third applicants) were his heirs. By judgments of 30 January and 13 November 2001, the Supreme Court of Cassation quashed the judgments of 14 July 1997 and 22 February 1999 and reopened the case. The court found that, in violation of the relevant provisions of the Code of Civil Procedure, the first applicant had not been summoned as a party to the 1993-1999 proceedings. All three applicants became parties to the reopened proceedings. On 1 March 2004 the Sofia City Court decided to refer the case for renewed examination by the Sofia District Court. That decision was quashed by the Supreme Court of Cassation on 24 March 2005, as the reopened case fell to be examined by the Sofia City Court. On 9 January 2006 the Sofia City Court found that the 1968 transaction was null and void, having regard to the fact that the apartment at issue had largely exceeded the applicants’ family’s needs as determined by the relevant housing regulations. The court thus upheld the District Court’s judgment of 18 October 1995. The applicants appealed. The proceedings are currently pending before the Supreme Court of Cassation which listed a hearing for 20 June 2007. In the meantime, between 2000 and 2004, there were separate rei vindicatio proceedings between the same parties regarding the same apartment. The proceedings ended in 2004 by judgment rejecting the pre-nationalisation owners’ claim, apparently on the basis that the proceedings under section 7 of the Restitution Law were still pending. The applicants continue to possess the apartment at issue. These are summarised in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
| 0
|
train
|
001-57591
|
ENG
|
BEL
|
CHAMBER
| 1,983
|
CASE OF VAN DER MUSSELE v. BELGIUM
| 2
|
No violation of Art. 4;No violation of Art. 14+4;No violation of P1-1
|
C. Russo
|
9. The applicant is a Belgian national born in 1952. He resides in Antwerp where he exercises the profession of avocat (lawyer). After being enrolled as a pupil avocat on 27 September 1976, he at once opened his own chambers without ever working in the chambers of another avocat; his pupil-master, however, entrusted him with a number of cases and gave him some payment for the work done in regard to them. Mr. Van der Mussele terminated his pupillage on 1 October 1979 and has since then been entered on the register of the Ordre des avocats (Bar Association). 10. On 31 July 1979, the Legal Advice and Defence Office of the Antwerp Bar appointed Mr. Van der Mussele, pursuant to Article 455 of the Judicial Code, to defend one Njie Ebrima, a Gambian national. The latter, who had been arrested two days earlier on suspicion of theft and of dealing in, and possession of, narcotics, had applied under Article 184 bis of the Code of Criminal Procedure for the assistance of an officially appointed avocat. 11. On 3 and 28 August 1979, Mr. Ebrima appeared before a Chamber (chambre du conseil) of the Antwerp Court of First Instance (tribunal de première instance), which was supervising the investigation, for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force. The Chamber confirmed the warrant on both occasions. It also added to the initial charges a further count of publicly using a false name. Mr. Ebrima appealed against these two orders, but the Indictments Chamber of the Antwerp Court of Appeal upheld them on 14 August and 11 September respectively. On 3 October 1979, the Court of First Instance sentenced him to six months’ and eight days’ imprisonment for theft, public use of a false name and illegal residence; he was acquitted on the remaining charges. On his appeal, the Court of Appeal on 12 November reduced the length of the sentence to that of the period he had spent in detention on remand. The applicant had acted for Mr. Ebrima throughout these proceedings and estimated that he devoted from seventeen to eighteen hours to the matter. Mr. Ebrima was released on 17 December 1979 following representations made by the applicant to the Minister of Justice; he had in the meantime been placed at the disposal of the immigration police with a view to deportation. 12. The following day, the Legal Advice and Defence Office notified Mr. Van der Mussele - whose pupillage had finished more than two and a half months earlier (see paragraph 9 above) - that it was releasing him from the case and that because of Mr. Ebrima’s lack of resources no assessment of fees and disbursements could be made against him. The latter amounted on this occasion to 3,400 BF, made up of 250 BF for preparation of the case-file, 1,800 BF for correspondence, 1,300 BF for travel to and from the prison, the Court of First Instance and the Court of Appeal, and 50 BF in respect of court costs for the copy of a document. 13. The applicant stated that during his pupillage he had dealt with approximately 250 cases, including about 50 cases - representing some 750 hours of work - on which he had acted as officially appointed avocat. He also said that his net monthly income before tax was only 15,800 BF in his first and second years, increasing to 20,800 BF in the third. 14. Although it is in various respects regulated by legislation, the profession of avocat in Belgium is a liberal profession; under Article 444 of the Judicial Code, "avocats exercise their profession freely in the interests of justice and truth". 15. In each of the country’s twenty-seven judicial districts, there is an Ordre des avocats; it is independent of the executive and endowed with legal personality in public law and its Council takes decisions "without appeal" with regard to entry on the register of avocats and admission to pupillage (Articles 430 and 432 of the Judicial Code). A pupillage normally lasting three years is a pre-requisite to entry on the register of avocats (Article 434 and the second paragraph of Articles 435 and 436). Subject to the powers of the General Council of the National Ordre, the Council of the district Ordre determines the obligations of pupils (Articles 435 and 494). In the main these consist of attending at a pupil-master’s chambers, attending hearings, following courses on the rules of professional conduct and the art of advocacy (Article 456, third paragraph) and acting as defence counsel in cases assigned by the Legal Advice and Defence Office (Article 455). The Council of the Ordre ensures that these obligations are complied with and may, if need be, prolong the pupillage "without prejudice to the right to refuse entry on the register"; any pupil who is unable, after five years at the latest, to show that he or she has satisfied the said obligations "may be omitted from the roll" of pupils (Article 456, second and fourth paragraphs). Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats. However, they may not plead before the Court of Cassation or the Conseil d’État (Article 439), vote in elections of the chairman or other members of the Council of the Ordre (Article 450) or deputise for judges and members of the public prosecutor’s department. 16. In the oath that he takes at the end of his pupillage, the avocat undertakes, amongst other things, not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just (Article 429). Subject to the exceptions provided for by law, for example in Article 728 of the Judicial Code and Article 295 of the Code of Criminal Procedure, avocats - including pupil avocats - enjoy an exclusive right of audience before the courts (Article 440 of the Judicial Code). They pay a subscription to the Ordre (Article 443) and social security contributions. 17. The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct, without prejudice, where appropriate, to proceedings before the courts (Article 456, first paragraph). It will hear disciplinary cases on application made by its chairman, either of his own motion or following a complaint or after a written notification from the procureur général (public prosecutor) (Article 457). The Council may, depending on the circumstances, warn, censure, reprimand, suspend for a maximum of one year or strike a name off the register of avocats or the roll of pupils (Article 460). Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board (Articles 468 and 472). The disciplinary appeal board is composed of a chairman (who is the first president of the Court of Appeal or a president of a chamber delegated by him), four assessors (who are avocats) and a secretary (who is a member or former member of the Council of the Ordre des avocats); the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority (Articles 473 and 475). The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to the Court of Cassation (Article 477). 18. In Belgium, as in many other Contracting States, there exists a long tradition that the Bar should provide legal representation, if need be on a free basis, for indigent persons. At the time of the relevant facts, the Council of the Ordre des avocats was under a duty to make provision for "the assistance of persons of insufficient means" by setting up a "Legal Advice and Defence Office" in such manner as it should determine (Article 455, first paragraph, of the Judicial Code). "Obviously ill-founded cases [were not to] be allocated" (second paragraph of the same Article), but in criminal matters the Legal Advice and Defence Office had to make an officially appointed - or "pro Deo" - avocat available to any indigent accused who so requested at least three days before the hearing (Article 184 bis of the Code of Criminal Procedure). Officially appointed avocats were thus designated by the Office by virtue of a statutory competence conferred by the State. In Antwerp and Liège a system of rotation was used whereas in Brussels the matter was dealt with on a more flexible basis. The Office almost always selected pupil avocats who, if need be, had to continue acting in the case even after the end of their pupillage, as occurred in the present circumstances (see paragraph 12 above). It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat. 19. Under the third paragraph of Article 455 of the Judicial Code, pupil avocats were required to "report to the [Legal Advice and Defence] Office on the steps they [had] taken in the cases entrusted to them"; such cases accounted on average for approximately one quarter of their working time, especially during their third year. The Ordres des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions; the Antwerp Ordre enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations. Pupil avocats could invoke the so-called "conscience clause" laid down in Article 429 of the Judicial Code (see paragraph 16 above) or objective grounds of incompatibility. In the event of an unjustified refusal to deal with cases that the Office wished to allocate to him, the Council of the Ordre could extend the pupillage of a pupil avocat to a maximum period of five years, strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations (Article 456, second and fourth paragraphs). 20. Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses. Nevertheless, the Legal Advice and Defence Office could, "depending upon the circumstances, .... fix the amount which the [assisted] party [was] required to pay either by way of advance provision or as fees" (Article 455, final paragraph, of the Judicial Code). In practice such awards tended to be somewhat exceptional - in approximately one case out of four at Antwerp - and, what is more, pupil avocats only succeeded in actually recovering a fraction - roughly one quarter - of the amounts so fixed. 21. The position described in the preceding paragraph has changed in one respect subsequent to the end of the applicant’s pupillage: an Act of 9 April 1980 "intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid" has amended Article 455 by, inter alia, inserting the following provisions: "The State shall grant to the pupil avocat appointed by the Legal Advice and Defence Office compensation in respect of the services which he was appointed to render. After obtaining the opinion of the General Council of the National Ordre des avocats, the King shall prescribe, by Decree laid before the Council of Ministers, the conditions governing the granting, scale and manner of payment of such compensation." In certain circumstances, the State will be able to take action against the assisted person to recover the compensation awarded. The Act is not retroactive. Furthermore, for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of the Royal Decree provided for under Article 455. 22. The official appointment of an avocat should not be confused with two other possibilities which are likewise often included in the notion of legal aid, namely - "official assignment", which is provided for under the law in various circumstances where the intervention of an avocat is obligatory, independently of the means of the person concerned (Articles 446, second paragraph, and 480 of the Judicial Code, Article 290 of the Code of Criminal Procedure, etc.); - "legal aid" in the narrow sense, which "consists of exempting, in whole or in part, persons whose income is insufficient to meet the costs of proceedings, including extrajudicial proceedings, from paying stamp duty, registration duty, registry and copying fees and any other expenditure involved", and of providing "the services of public and publicly appointed officers free" for such persons (Articles 664 and 699 of the Judicial Code). 23. Indigent persons requiring the services of notaries, bailiffs or avocats of the Court of Cassation may apply for the appointment by the Legal Aid Bureau (see paragraph 22 above) of the persons who are under a duty to give their services free of charge (Articles 664, 665, 685 and 686 of the Judicial Code). The State reimburses the latter persons for their out-of-pocket expenditure (Article 692) but grants no remuneration, the one exception being bailiffs who receive the equivalent of one quarter of their usual fees (Article 693).
| 0
|
train
|
001-4561
|
ENG
|
ITA
|
ADMISSIBILITY
| 1,999
|
PIPOLI v. ITALY
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant is an Italian national, born in 1959 and residing in Genoa; she is unemployed. Before the Court, she is represented by Mr Paolo Bordonaro, lawyer in Genoa. In 1983 the applicant married G.L.; they had four children: L, born in 1983, F., born in 1985, S., born in 1986 and G., born in 1988. Since 28 May 1987, L. has been looked after by his paternal grandmother. The applicant used to live with her husband and the three children in a small apartment with no electricity and no heating. On a date which has not been specified, the applicant's husband abandoned her and the children; he declared that he did not intend to take care of his children anymore. In 1988 the social assistants informed the Juvenile Court of Genoa of the critical condition in which the applicant's children had to live. S., F. and G. were taken into public care on 23 March 1989 and 29 July 1989 respectively. On 14 November 1989 the applicant and her husband were given instructions by the Genoa Youth Court as to the way in which to raise the children. They failed to follow these instructions. As a consequence, on 10 August 1990 proceedings were opened with a view to declaring the children's state of abandonment. The applicant, her husband and her father were summoned to appear before the youth court at the hearing of 27 October 1990, with the warning that, if they failed to appear, the children would be declared available for adoption. They did not appear before the court, and they did not provide any explanation or justification for their absence. By decisions delivered on 21 December 1990, the court ruled that F., S. and G were available for adoption and appointed a guardian for them. This decision was filed with the court’s registry on 29 December 1990. Following the father's appeal against these decisions, on 10 April 1991 the Genoa Youth Court acknowledged that the applicant had always taken care of her children, insofar as it had been possible for her, and that she was willing to co-operate in order to improve her children's living conditions. It considered therefore that the best solution in the children’s interests was to maintain the bonds of affection between the children and their mother. Accordingly the court suspended the proceedings for six months, confirmed the children’s placement into public care and ordered that a family be found which could take care of the three children or that an adequate children’s home be found. The court further allowed the appointment of an expert with a view to establishing whether the applicant or other relatives were fit to assume their parental responsibility. On 3 July 1991, the children were placed in a children’s home. On 28 October 1991 the youth court ordered a psychological report on the applicant and her husband, and on the links between them and the children. In her report, filed on an unspecified date in January 1992, the psychiatrist stated that the applicant was unfit to assume her parental responsibility and that she might jeopardise the children’s future emotional development. By a decision delivered on 31 January 1992, the Genoa Youth Court dismissed the father’s appeal against the declaration that the children were available for adoption and suspended any contact between the applicant and the children. The applicant did not appeal against the declaration of availability for adoption as in fact she consented thereto. The children were subsequently placed for adoption and apparently the three children were adopted by the same family. The applicant has not seen her children or received any information about them since January 1992. On 31 January 1996 the applicant filed with the Genoa Youth Court a request that proceedings be opened with a view to informing her children about her life and situation. She invoked Article 8 of the Convention and Article 20 of the European Convention on Adoption and pointed out that she did not request to be given the address of her children, but that her children be given her address and information about her life and situation. In a decision delivered on 18 March 1996 and filed with the registry on 21 March 1996, the Genoa Youth Court recalled that Article 73 of Law no. 184/83 prohibits anybody from divulging any information concerning adopted persons, with the exception, according to the interpretation of the doctrine and jurisprudence, of cases where there is a concrete interest, legally protected, in having access to secret information. The court explained that such concrete interest must be proven to exist in respect of the adopted persons and must be invoked by their guardian or legal representative. The court, noting that the request had been made by the mother who had lost her parental rights over the children, and that there was no evidence of the children’s concrete interest, refused the request. Relevant law Article 27 of Law no. 184 of 4 May 1983 (hereinafter referred to as “the Adoption Act”) provides that “with the adoption, the rights and obligations between the adopted person and its original family cease to exist”. The Convention on Adoption signed in Strasbourg on 24 April 1967 was incorporated into Italian law by law no. 357 of 1974, which came into force on 25 August 1976. Under Article 10 of that Convention, the family rights and obligations between the adopted person and his/her father and mother cease to exist. Article 20 § 4 of that Convention provides that “public records shall be kept and, in any event, their contents reproduced in such a way as to prevent persons who do not have a legitimate interest from learning the fact that a person has been adopted or, if that is disclosed, the identity of his former parents.” The relevant part of the explanatory report states that “the purpose of this Article is to avoid difficulties which may arise from: - the natural parents’ knowledge of the adopter’s identity; - publicity of adoption proceedings or public records relating to adoption.”
| 0
|
train
|
001-100883
|
ENG
|
SVK
|
CHAMBER
| 2,010
|
CASE OF DMD GROUP, A.S., v. SLOVAKIA
| 2
|
Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
|
5. The applicant company was established in 1997 and has its seat in Trenčín. 6. In the late 1990s the applicant company commenced proceedings against two major companies, seeking the enforcement of financial claims against the companies through seizure of their shares and transfer of title to the shares to the applicant company. 7. The companies in question had been involved in arms production and had gone through a restructuring that resulted in a large number of job losses and a high rate of unemployment in the region. The relevant events therefore received media attention. 8. The judicial enforcement officer (súdny exekútor), A., who had been involved in the enforcement of the claims in issue, was charged with abuse of authority. A. was eventually acquitted of that charge by the Bratislava III District Court (Okresný súd) on 7 February 2003. Criminal proceedings were also brought against other individuals. 9. Further details concerning the background can be found in the Court's judgment of 2 June 2009 in the case of Borovský v. Slovakia (no. 24528/02). 10. On 23 September 1998 the applicant company petitioned A. to enforce a claim for payment of an amount equivalent to approximately 2,900,000 euros (EUR) against B., a private joint-stock company. A. subsequently sought judicial authorisation of the enforcement. 11. On 30 September 1998 the President of the Martin District Court, C., sitting as a single judge, authorised A. to carry out the enforcement proceedings against B. 12. In the course of the enforcement proceedings, A. seized B.'s movable property and certain shares relating to B. A. attempted to sell the seized property at two public auctions. As the auctions failed, the shares and movable property were transferred to the applicant company at fifty percent of their officially estimated value. 13. On 20 April 1999 the applicant company requested that the enforcement proceedings be ended, as its claim had been satisfied by the above-mentioned award of property. 14. In a decision (uznesenie) of 30 June 1999, D., the newly appointed President of the District Court sitting as a single judge, ruled that the enforcement of the applicant company's claim by means of selling the shares was improper (neprípustná). At the same time, judge D. discontinued the enforcement proceedings. Judge D. observed that the shares had been sold by way of a procedure that applied to movable property. However, as shares were not deemed to be movable property, a different procedure requiring special authorisation should have been used. The two-page decision was not subject to appeal. 15. The distribution of cases and organisation of work at the District Court is regulated by a work schedule (rozvrh práce). 16. The work schedule for the District Court in 1999 was drawn up in 1998 by the then President of the District Court, judge C. According to this work schedule, all enforcement proceedings – including the proceedings for the enforcement of the applicant company's claim – were assigned to the District Court's Ninth Section, which was presided over by judge C. The work schedule provided that judge C. and judge D., who was at that time with the District Court's Seventh Section, were to substitute for each other if necessary. A copy of the work schedule was sent to the Žilina Regional Court for information on 7 December 1998. 17. On 21 January 1999 judge D. was appointed as President of the District Court. He occupied that position until 5 June 2002. 18. On 4 February 1999 judge D. issued an amendment to the work schedule. With effect from 1 March 1999, new enforcement proceedings were to be distributed evenly among eight different sections of the court, including the Seventh Section. Enforcement proceedings that had originally been assigned to the Ninth Section were also to be reassigned and distributed evenly among the eight designated sections. The amendment was worded in general terms without identifying any specific proceedings. A copy of the amended work schedule was sent to the Regional Court for information on 30 March 1999. 19. On 30 June 1999 judge D., in his capacity as President of the District Court, issued a decree (opatrenie) reassigning the proceedings for the enforcement of the applicant company's claim to himself. In the one-page decree, reference was made to section 2(2) and 2(3) of the Administrative Rules for District and Regional Courts (Regulation no. 66/1992 Coll., as amended) (“the Rules”). The decree formally stated that the reason for the reassignment was “a change in the work schedule” and that the reassignment was made “in accordance with the system of substitution of judges fixed in the work schedule and for the purpose of ensuring the proper functioning of the court”. 20. In the period between 1 March and 15 July 1999, a total number of 348 cases were reassigned from the Ninth Section of the District Court. Of the total, 49 cases were reassigned to judge D's section and 52, 48, 45, 42, 60 and 52 cases were reassigned to the remaining six Sections of the District Court respectively. 21. Further amendments to the District Court's work schedule were issued by judge D. throughout 1999, taking effect on 1 June, 23 June, 1 August and 1 October 1999. They were all notified to the Regional Court. Under these amendments, judge D. was in charge of one in seven enforcement proceedings and also continued to stand in for judge C. (on a mutual basis). 22. The applicant company lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). It contended, inter alia, that its right to a hearing by a tribunal established by law had been violated by judge D.'s assignation of the case to himself. The applicant company pointed to the fact that the case had been decided by judge D. on the same day that it was reassigned to him. It also alleged that there had been frequent modifications to the work schedule of the District Court in 1999 which had rendered the process of assignment and reassignment of cases uncontrollable, thus leaving room for arbitrariness. The applicant company also challenged the above-mentioned ruling declaring the enforcement proceedings improper. 23. On 4 July 2002 the Constitutional Court declared the part of the applicant company's complaint concerning the reassignment of the case to judge D. admissible under Article 48 § 1 of the Constitution. At the same time, it declared the remaining part of the complaint concerning the ruling on the merits inadmissible as manifestly ill-founded. 24. In a judgment (nález) of 17 January 2003, the Constitutional Court held, by a two to one majority, that there had been no violation of the applicant company's rights under Article 48 § 1 of the Constitution. 25. Having received extensive documentary evidence and having held a public hearing, the Constitutional Court established, inter alia, the facts summarised in paragraph 20 above. The Constitutional Court found that the evidence available indicated that judge D. had made the impugned decree of 30 June 1999 in the context of modifications to the court's work schedule for 1999, in the interests of an equal distribution of cases concerning enforcement proceedings, and in accordance with section 2(2) of the Rules. The court further held that the fact that judge D. decided the case on the same day that he had given the above-mentioned decree did not, as such, affect the legal framework within which the change in judges had been effected. The Constitutional Court concluded that the applicant company had not sufficiently substantiated its allegation that the case had been assigned to judge D. in an unjustified manner. 26. The judge in the minority gave a dissenting opinion. He pointed to the fact that the work schedule of the District Court had been modified several times in the course of 1999 without any acceptable explanation. There was no indication that an objective and transparent method for the reassignment of cases had been established and applied. Moreover, during the relevant period no similar steps had been taken at the District Court to redistribute cases in differing categories despite the far heavier case load in those other categories. 27. Article 48 § 1 provides that no one may be deprived of his or her lawfully appointed judge (zákonný sudca). The jurisdiction of a court in a particular matter is to be established by law. 28. According to the Constitutional Court, the right “not to be deprived of his or her lawfully appointed judge” pursuant to Article 48 § 1 of the Constitution is vested in each party to the proceedings (as opposed to the judge) (decision of 22 July 1997 in case no. II. ÚS 43/97). 29. The Constitutional Court held in its judgment of 28 February 1994 in case no. I. ÚS 8/94 that the right “not to be deprived of his or her lawfully appointed judge” attaches to the person of the judge and not to a court. A 'lawfully appointed' judge is one who, fulfilling the statutory requirements for being a judge, has been assigned to a case under the work schedule of the court concerned. 30. The Constitutional Court has also held (by a decision of 3 April 1996 in case no. II. ÚS 15/96) that the right of a person “not to be deprived of his or her lawfully appointed judge” cannot be interpreted in so broad a manner as to pertain to a specific, individual judge. The purpose of this constitutional right is therefore satisfied if an individual's rights are decided upon by a judge who has been duly appointed to a court which has jurisdiction ratione loci and ratione materiae and is at the appropriate level of jurisdiction. 31. In reviewing the additional constituent elements of the notion of a “lawfully appointed judge” under Article 48 § 1 of the Constitution, the Constitutional Court held that it is not only statutory provisions, in particular those of the Courts and Judges Act, that are of relevance but above all the provisions of the Constitution, chiefly Article 46 § 1, which provides that everyone may claim his or her rights by way of a procedure established by law before an independent and impartial court (judgment of 15 June 2000 in case no. III. ÚS 16/00). 32. The Constitutional Court has also held (in its judgments in cases nos. II. ÚS 87/01, II. ÚS 118/02 and II. ÚS 119/02) that, in principle, a “lawfully appointed judge” is the judge assigned to a specific case under the work schedule of the court concerned. However, if there are circumstances justifying the reassignment of the case or of the entire agenda to a different judge for the reasons envisaged in sections 2(2) and (3) of the Rules, any newly assigned judge becomes a lawfully appointed judge. Such circumstances comprise, for example, the long-term absence of a judge, significant differences in workload among judges, or sudden events preventing a judge from taking specific steps in the proceedings. 33. In a judgment of 9 June 1999 in case no. II. ÚS 47/1999, the Constitutional Court held that a president of a court must not use his discretion, contrary to the law, to take a case away from a lawfully appointed judge and assign it to another judge in order to accommodate one of the parties without providing a precise ground of justification for the reassignment. 34. The Rules were issued by the Minister of Justice. As then in force, they defined the internal rules of District Courts and Regional Courts and the discharge of tasks by those courts. Section 2 of the Rules governed courts' work schedules, that is to say the distribution of cases among court divisions and judges. 35. Pursuant to paragraph 1 of section 2, the distribution of work at courts was to be determined in a work schedule for a whole calendar year. The schedule of work was also to provide for the substitution of judges. 36. Under paragraph 2, where a judge was absent for a long period or where there were substantial differences in the workload of judges at the same court, the President of the court was given power to decide that a certain amount of work be transferred to a different division of the court. 37. Paragraph 3 provided that, where a sudden event prevented a judge from carrying out individual acts in a case, the court's president might charge a different judge to take the action required. 38. Under paragraph 4, a court's president was to take the measures indicated in paragraphs 2 and 3 in accordance with the rules concerning the replacement of judges as defined in the work schedule, unless a different action was required with a view to ensuring the proper functioning of the court. 39. No further statutory rules on the status and creation of courts' work schedules existed at the relevant time. 40. At the relevant time, the State administration of the judiciary was governed by Law no. 80/1992 Coll., as amended. Pursuant to section 8 of the Law, the bodies charged with the State administration of the judiciary were the Ministry of Justice and the Presidents and Vice-presidents of the courts. 41. The State administration of District Courts was carried out by the Ministry of Justice directly or through the Presidents of those courts (section 9(1)).
| 1
|
train
|
001-77802
|
ENG
|
RUS
|
CHAMBER
| 2,006
|
CASE OF VLADIMIR NIKITIN v. RUSSIA
| 4
|
Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1936 and lives in the town of Vorkuta in the Komi Republic of the Russian Federation. 5. On 8 August 1994 the applicant sued his employer, a mining company, for payment of royalties. The first hearing, fixed for 25 August 1994, was adjourned due to the applicant's absence. The following hearings of 9 December 1994 and 20 January 1995 were also postponed upon his requests. 6. On 22 February 1995 the Vorkuta Town Court found for the applicant. However, that judgment was quashed on appeal on 30 March 1995 and re-examination was ordered. The applicant amended his claims. 7. On 11 March 1996 the Town Court ordered an expert study. The proceedings were stayed until January 1997 when the Town Court received the expert report. In April 1997 another expert study was ordered. The applicant again amended his claims. 8. On 16 May 1997 the Vorkuta Town Court dismissed the action. That judgment was quashed on appeal on 25 August 1997 and the case was remitted for a fresh examination. 9. A judge was assigned to the case in December 1997 and the first hearing was listed for 13 November 1998. However, that hearing was adjourned because the parties defaulted. The following hearing of 18 October 1999 was postponed upon the parties' request for provision of additional evidence. 10. On 22 October 1999 the Town Court ordered an expert examination. The proceedings were resumed on 15 March 2000 after the expert report had been submitted to the Town Court. 11. Two hearings, fixed between March and 17 November 2000, were adjourned because the defendant defaulted and the court wanted to call an expert. 12. On 17 November 2000 the Vorkuta Town Court ordered an expert study. The proceedings were resumed a week later. 13. On 19 February 2001 the Vorkuta Town Court found for the applicant. The judgment was quashed on appeal and the case was remitted for re-examination on 21 May 2001. 14. A judge was assigned to the case on 22 August 2001. In September and November 2001 the presiding judge inquired several expert organisations about a possibility to perform expert studies. A hearing was fixed for 17 January 2002. However, it was adjourned for provision of additional evidence by the defendant. The following hearing was fixed for 26 March 2002. 15. On 27 March 2002 the Vorkuta Town Court ordered another expert examination. The applicant appealed against that decision, but on 20 May 2002 his appeal was dismissed. 16. In May 2002 the Town Court sent the case-file to an expert bureau. A month later the experts asked the Town Court for additional documents. The documents were submitted to the experts in August 2002. In October and November 2002 the experts inquired the Town Court about the fees for their work. 17. In February 2003 the Town Court asked the Judicial Department of the Komi Republic to bear the costs of the expert examination. It appears that the expert fees were paid in July 2003. 18. In August and October 2003 the Vorkuta Town Court inquired the experts about the progress in their work. On 1 April 2004 the experts informed the Town Court that the expert report had been submitted to it on 19 September 2002. 19. In May 2004 the experts once again sent the report to the Town Court. The report contained certain procedural defects and the Town Court asked for corrections. In July and September 2004 the Town Court repeated its request. No response followed. 20. From 29 January to 28 April 2005 the applicant lived in Ukraine. 21. On 11 February 2005 the Town Court received the corrected expert report. Three days later the proceedings were resumed and a hearing was fixed for 10 March 2005. The parties were summoned. The summonses to the applicant were sent to all known addresses, including one in Ukraine. 22. The hearing of 10 March 2005 was postponed because the applicant defaulted. The advice of receipt concerning the applicant's summonses returned from Ukraine with the note indicating that the applicant had refused to accept them. The following hearing was fixed for 4 April 2005. The Town Court sent summonses to all known addresses of the applicant, including one in Ukraine. It also unsuccessfully attempted to summon the applicant by phone. 23. On 4 April 2005 the Vorkuta Town Court disallowed the applicant's action because he had failed to attend two hearings and had not notified of the reasons for his absence. 24. The applicant applied to the Town Court for annulment of the decision of 4 April 2005. On 20 October 2005 the Vorkuta Town Court dismissed the request. The court held that the applicant had been properly summoned. Moreover, there was evidence that he had refused to accept the summonses for the hearing of 10 March 2005. The applicant did not appeal against the decision of 20 October 2005 to the Supreme Court of the Komi Republic.
| 1
|
train
|
001-97451
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF ALIYEVA v. RUSSIA
| 4
|
Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
|
5. The applicant, Khava Aliyeva, was born in 1967 and lives in Grozny. 6. At the material time the applicant, her husband, Mr Abu Aliyev, born in 1962, and their five children lived in flat no. 77 at 141 Khmelnitskaya Street, Grozny, in the Chechen Republic. Mr Abu Aliyev was disabled as he had had one leg amputated. 7. At 2.00 a.m. on 29 October 2002 several armoured personnel carriers (“APCs”) and UAZ vehicles arrived at 141 Khmelnitskaya Street and around thirty armed men wearing camouflage uniforms and masks got out of the vehicles. They broke down the door of the Aliyevs' flat and entered. The men did not identify themselves but the applicant believed that they belonged to the Russian military because they spoke unaccented Russian and had blue eyes. 8. The servicemen searched the flat and took money in the amount of 1,500 roubles, certain personal items and books on Islam. Then they dragged Mr Abu Aliyev out of the bed, forced him onto the floor and beat him. Meanwhile some of them ordered the applicant to go into the kitchen. She obeyed; once in the kitchen she grabbed a knife, but the servicemen threatened to shoot her unless she dropped it. The men tied the applicant up with adhesive tape and threw her on to the floor. Then they took with them Mr Abu Aliyev, who was wearing only his underwear, and left. 9. The applicant's neighbour, Ms B., looked through the window and saw masked men in camouflage uniforms dragging out the half-naked Mr Abu Aliyev. She rushed to the Aliyevs' flat and found the applicant tied up with adhesive tape and her children crying. After Ms B. had untied the applicant they rushed into the street, but heard only the sound of the vehicles. The applicant has enclosed a written statement by Ms B. to corroborate her account of the events. 10. The next day relatives of Mr Yu. A., who lived in the neighbouring district of Grozny, came to see the applicant. She had never met them before and believed that her husband did not know Mr Yu. A. either. They said that Mr Yu. A. had also been abducted the previous might by armed men in APCs and asked her whether she had any information about the captives. The applicant replied that she had no information. The applicant has not furnished any statements by the relatives of Mr Yu. A. concerning the latter's alleged abduction. 11. According to the Government, on 1 November 2002 the Grozny Prosecutor's Office received from the Prosecutor's Office of the Chechen Republic the applicant's request to take measures to find her husband, Mr Abu Aliyev, taken on 29 October 2002 to an unknown destination by unidentified men in camouflage uniforms armed with automatic weapons and who had UAZ vehicles. 12. On 30 October 2002 the applicant, requesting assistance in the search for her husband, reported his abduction to various State agencies, such as the prosecutors' offices of Grozny and the Chechen Republic, the Security Council of the Chechen Republic and the Chechen Administration. 13. On 11 November 2002 the Chechen Administration informed the applicant that her complaint had been forwarded to the Grozny Prosecutor's Office. 14. On 12 November 2002 the Grozny Prosecutor's Office informed the applicant that an investigation into her husband's kidnapping had been instituted on 11 November 2002 under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The decision to institute the investigation stated, inter alia: “On 29 October 2002 at approximately 2 a.m. unidentified men armed with automatic weapons in masks and camouflage uniforms, having broken down the entrance door, entered apartment no. 77 at Bogdana Khmelnitskogo street, house 141, building 5 in the Leninskiy Distict of Grozny and forcibly took [Mr] Abu Adamovich Aliyev, born in 1962, residing at the above stated address, to an unknown destination.” 15. On 4 December 2002 the Grozny Prosecutor's Office granted the applicant victim status in case no. 48193. It appears that she was questioned on the same date. According to the Government, she stated that on the night of 29 October 2002 she had been woken up by noise from the stairwell. She had got dressed and when she had approached the door she had heard her neighbour telling somebody not to break down the door. She had wanted to go out and see what was happening, however at that moment armed men wearing camouflage uniforms and masks had broken down the door and burst into the apartment. Without giving any explanations they had searched the apartment. They had put adhesive tape on her mouth, tied up her hands and feet and thrown her on to the kitchen floor. Then, having taken some minor personal things, books on Islam, subha (Muslim prayer beads) and money in the amount of RUB 1,500 they had left, taking her husband with them. When she ran outside she saw an APC and a UAZ vehicle with its lights off going towards the veterinary clinic. She has had no information about her husband since. 16. On an unspecified date Ms B. was questioned. According to the Government she submitted that on the night of 29 October 2002 she had heard noise and had gone out to the stairway enclosure. There she had seen somebody breaking down the door between the lobby and the staircase. She had said not to break down the door as she would open it herself. However, unknown persons had broken down the door and entered. They were armed men in masks with automatic guns. One of them had said to her in Russian “Stand back!” and had closed the door to her apartment. She had heard them breaking down the door of the Aliyevs' apartment. When she looked out into the street she saw a man in camouflage uniform with an automatic weapon sitting there. Then she opened the door again and saw an armed man in a mask who noticed her and turned towards her. She got frightened and closed the door. Then she heard the noise in the stairway enclosure and went to the kitchen window to see what was going on in the yard. There she saw a group of approximately ten men in camouflage uniforms walking fast towards Bogdana Khmelnitskogo Street. Two of them were carrying Mr Abu Aliyev. There was nobody else in the street. She left her apartment and went to see the applicant to find out what had happened. The applicant told her that those men had been looking for her husband. They had tied her up but had not touched the children. 17. On 13 January 2003 the Grozny Prosecutor's Office informed the applicant that the investigation into her husband's kidnapping had been stayed for a failure to identify those responsible. 18. On 17 and 23 January 2003 the Grozny Prosecutor's Office informed the Special Envoy of the Russian President in Chechnya for Rights and Freedoms and the applicant that an investigation in case no. 48193 had been instituted on 11 November 2002. 19. On 9 March 2003 the Grozny Prosecutor's Office informed the applicant that the investigation in case no. 48193 had been stayed for a failure to identify those responsible and that investigative measures were being taken to resolve the crime. 20. On 23 June 2003 the applicant was again questioned. According to the Government, she submitted no new information. 21. On 27 August 2003 the investigating authorities sent instructions to district prosecutors in the Chechen Republic to intensify search measures. 22. On 7 October 2003 the applicant asked the Grozny Prosecutor's Office to clarify what stage the investigation into her husband's kidnapping had reached. She further requested that, if the proceedings had been stayed, the decision to suspend the investigation be quashed. 23. On 8 October 2003 Ms Sh., the applicant's neighbour, was questioned. According to the Government, she stated that on the night of the abduction she had been woken up by the noise. However, she had noticed nothing else and had fallen asleep again. The next morning she had learned that Mr Abu Aliyev had been abducted. 24. On 9 October 2003 Mr B., another neighbour of the applicant, was questioned. According to the Government, he submitted that he was living with his ex-wife in the apartment next to the Aliyevs. On 29 October 2002 she had been woken up by loud noise in the stairway enclosure. He had thought that it was thieves, but his wife had said that it was servicemen. She had asked him not to go out and had gone to the window herself. They had heard noise from apartment no. 77 but had not been able to understand what was going on there. In about ten minutes everything had calmed down and they had gone to apartment no. 77 to find out what had happened. There in the kitchen he had seen the applicant who had said that the armed men in camouflage uniforms had taken away her husband. His wife had confirmed that she had seen armed men in camouflage uniforms. 25. On 10 October 2003 the Leninskiy District Prosecutor's Office informed the applicant that the decision to suspend the investigation in case no. 48193 was compatible with domestic law and thus there were no reasons to quash it. 26. On 13 October 2003 Ms G., who apparently also lived in Bogdana Khmelnitskogo Street, was questioned. According to the Government, she stated that she had no close relationship with the Aliyevs. She had learned about the abduction a few days later from her neighbours. Mr G., questioned on the same date, made a similar statement. 27. On 16 October 2003 Ms S., the applicant's neighbour, was questioned. According to the Government, she submitted that on the night of 29 October 2002 she had been woken up by the noise. She had opened the door to the balcony and had called out to the applicant since she had thought that the noise had been coming out from their apartment. She had heard no reply and had gone down to the applicant's apartment. There she had seen the applicant who had just been untied by her daughter. Later Ms S. had learned that armed men had taken away Mr Abu Aliyev. 28. On 17 October 2003 Ms A., the applicant's daughter, was questioned. According to the Government, she stated that on the night of 29 October 2002 she had been woken up by a horrible noise. Her three-year-old brother had also woken up and they had got frightened and started to cry. The armed people burst into their apartment. One of them ordered her to stop crying and to calm down her brother. They had left in approximately ten to fifteen minutes. Then she had heard her mother calling her. Ms A. had gone to the kitchen and found her mother there, tied up with adhesive tape. Ms A. had untied her, and her mother had run outside. Ms A. had not seen her father being taken away. 29. On the same date the applicant requested the Prosecutor's Office of the Chechen Republic that she be permitted to copy the investigation file, at her own expense. 30. On 27 October 2003 the applicant requested the Prosecutor's Office of the Chechen Republic to help her find her husband, who had been kidnapped by armed men in camouflage uniforms. 31. On 5 November 2003 the Prosecutor's Office of the Chechen Republic denied the applicant access to the case file, giving the reason that the investigation had not been completed. 32. On 9 February 2004 the Leninskiy District Prosecutor's Office informed the applicant that the investigation into her husband's kidnapping had been resumed and invited her to visit their premises on 14 February 2004 for additional questioning as a victim. 33. On 14 February 2004 Mr A., Mr Abu Aliyev's brother, was questioned. According to the Government, he submitted that he had learned of his brother's abduction from his cousin. He had been surprised because the day before his brother had visited him and they had been planting apple trees together. 34. On 9 March 2004 the investigation in case no. 48193 was again suspended; the applicant was not promptly informed of the decision. 35. On 16 June 2004 the applicant requested the Leninskiy District Prosecutor's Office to inform her of recent developments in the investigation and to allow her access to the case file. 36. On 26 June 2004 she repeated the request. 37. According to the Government, in the course of the investigation measures were taken to establish the whereabouts of Mr Abu Aliyev and to identify the perpetrators. In particular, requests for information were sent to Departments of the Interior and prosecutors of different levels in Chechnya and Dagestan, the FSB Department in Chechnya, the Chechen penitentiary and passport-visa authorities, the Ministry of the Interior and other bodies. As a result of those measures it was established that Mr Abu Aliyev had not been detained by State authorities and had not been placed in either remand or administrative detention facilities. He was not found in hospitals, nor was his body to be found in any morgue either. No special operations were being conducted by the federal forces in Grozny on the date in question. The investigation did not establish that servicemen were involved in the crime. Operational search measures were being taken in the criminal case. 38. The Government provided documents related to the investigation on ten pages, including copies of the decisions to institute the investigation and to grant the applicant victim status and of notifications sent to he application concerning the institution, suspension and resumption of the investigation. The Government enclosed no transcripts of questioning and no other documents concerning the investigative measures allegedly taken. On 22 December 2003 the applicant lodged a complaint with the Leninskiy District Court of Grozny. She requested that the decision on suspension of the investigation be quashed and that the investigators' inactivity be found unlawful. On 16 June 2004 the applicant requested the Leninskiy District Court of Grozny to inform her whether the complaint of 22 December 2003 had been examined. On 15 July 2004 the Leninskiy District Court of Grozny dismissed the applicant's complaint having found that the investigators had taken all requisite measures to resolve the crime. On 22 July 2004 the applicant appealed against the court's decision. On 15 September 2004 the Supreme Court of the Chechen Republic dismissed the applicant's appeal, finding no flaws in the investigation. 39. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
| 1
|
train
|
001-90704
|
ENG
|
HUN
|
CHAMBER
| 2,009
|
CASE OF CSANICS v. HUNGARY
| 2
|
Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
5. The applicant was born in 1955 and lives in Érd. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant is the chairman of the Trade Union of Value Transporters and Security Workers (Értékszállítási és Őrzésvédelmi Dolgozók Szakszervezete), which represents its members in numerous companies. 8. The applicant was an employee of the security company G. As the chairman of the trade union, he had constant arguments with the company. In 1998 his employment was terminated, which measure was declared illegal by the competent courts in 2000. The applicant alleged that, since then, company G. has not allowed him to enter its premises, even on official trade union business. 9. In March 1999 the applicant lodged a private motion (magánindítvány) with the Pest Central District Court against S.K., the managing director of company G., alleging that the latter had committed defamation by saying at a company meeting that the applicant “had taken under his wing criminals who had worked in the company”. In September 2003 the Budapest Regional Court, acting as a second-instance court, ultimately found S.K. guilty of defamation and fined him 150,000 Hungarian forints (HUF) (approximately 550 euros (EUR)). 10. In June 2002 the trade union became active in company D. In the second half of the same year, the trade union was informed of an intention to sell company D. and that one of the possible buyers was company G. The employees of company D. opposed the project and, in order to express their opinion, requested the trade union to organise a protest demonstration. This it did in front of the Parliament building. The applicant, as chairman of the trade union, gave interviews to several newspapers concerning the events. 11. On 14 December 2002, a daily newspaper Színes Mai Lap published an article which reported the planned sale of company D. and described the demonstration, analysing the background to the events. It interviewed the applicant, who made the following statements. “... the other reason [for which we are holding a demonstration] is that 2,500 employees should not lose their livelihood and that such a company [i.e. company G.] which tramples constitutional and labour rights should not be the successor of company D. (...) Because of the inhuman conduct of the management [of company G.] [the employees] should not have to stay in a place where they were called ‛criminals’. We initiated court proceedings in some fifty cases because of that.” 12. On 17 January 2003 S.K. brought an action against the applicant before the Budaörs District Court, asking the court to establish that the applicant’s statements had infringed his good reputation, to order the applicant to refrain from such acts in the future and to arrange for a rectification to be published. 13. On 17 March 2004 the District Court, finding that it was impossible to identify S.K. directly from the impugned article, dismissed his action. The plaintiff appealed. 14. The Pest County Regional Court was of the view that the District Court’s decision had only been a partial decision determining the applicability of the law on defamation. On 8 July 2004, it amended the first-instance decision and established that the plaintiff could be identified from the article in question. Thus he, as an affected person, might lawfully claim the protection of his privacy rights. 15. In fresh proceedings the District Court found, on 24 November 2004, that the applicant had tarnished the plaintiff’s good reputation by the impugned statements and ordered him to publish a rectification and pay the plaintiff’s court fees in the amount of HUF 82,000 (approximately EUR 300). It established that the applicant’s assertions were statements of fact rather than value judgments. It also noted that, although it was true that numerous civil and labour proceedings had been instituted against company G., this fact could not justify defamatory statements. 16. The District Court refused the applicant’s request to obtain the decisions adopted in those other proceedings, or to hear witnesses who might be able to prove the veracity of his assertions. It was of the view that this evidence could not possibly render lawful his statements, which in any event were exaggerated and offensive. 17. The applicant appealed. On 7 April 2005 the Pest County Regional Court upheld the first-instance decision. It held that the applicant’s assertions were value judgments based on factual allegations expressed in a wholly unlawful manner, since he had articulated his views in a “gratuitously insulting, offensive and harsh way.” 18. The Regional Court also referred to a decision of the Supreme Court which had come to the same conclusion in another defamation case instituted directly by company G. against the applicant. It established that the protection of the rights of others constituted a legitimate restriction on freedom of expression even in cases of public interest. However, it established that the present case did not deal with such matters of general concern, even if company D. had many employees. 19. The applicant lodged a petition for review with the Supreme Court. He pointed out that the final decision had erroneously found his assertions to be statements of fact, since they were the expression of an opinion based on true facts. The applicant also stressed that his aim had been to inform the public about an important matter. Lastly, he was of the view that in expressing his opinion he could not have harmed anyone’s reputation, even if he had used harsh terms, and that he had acted in compliance with relevant domestic law, the well-established case-law of the Constitutional Court and the Supreme Court, as well as with European standards. 20. On 8 September 2005 a single judge of the Supreme Court declared the applicant’s petition inadmissible. It found that the final decision had been correct and in accordance with law, particularly in view of the nature of the applicant’s assertions, which had been gratuitously insulting, offensive and harsh, and violated the plaintiff’s privacy irrespective of their value judgment content. The Supreme Court also pointed out that the right to freedom of expression was not unlimited and should not violate the personality rights of others. “(1) The protection of personality rights shall also include the protection of the good reputation of others. (2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person – or the presentation, with untrue implications, of a true fact relating to another person – shall constitute defamation.” “(1) A person whose personality rights have been infringed may bring the following civil- a) a claim that the court establish that an infringement has taken place; b) a claim that the infringement be discontinued and the perpetrator be forbidden from further infringements; c) a claim that the perpetrator be ordered to give satisfaction by making a declaration or in any other appropriate manner and, if necessary, this be made adequately public by, or at the expense of, the perpetrator; d) a claim that the prejudicial situation be terminated, and that the situation prior to the infringement be restored by, or at the expense of, the perpetrator ...; e) a claim for damages under the rules of civil law liability.”
| 1
|
train
|
001-87156
|
ENG
|
AUT
|
GRANDCHAMBER
| 2,008
|
CASE OF MASLOV v. AUSTRIA
| 1
|
Violation of Art. 8;Non-pecuniary damage - award
|
Alvina Gyulumyan;András Sajó;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Riza Türmen;Snejana Botoucharova;Sverre Erik Jebens
|
10. The applicant was born in October 1984 and currently lives in Bulgaria. 11. In November 1990, at the age of six, the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents, who were lawfully employed, acquired Austrian nationality. The applicant attended school in Austria. 12. In late 1998 criminal proceedings were instituted against the applicant. He was suspected of, inter alia, having broken into cars, shops and vending machines; having stolen empties from a stock ground; having forced another boy to steal 1,000 Austrian schillings from the latter’s mother; having pushed, kicked and bruised this boy; and of having used a motor vehicle without the owner’s authorisation. 13. On 8 March 1999 the applicant was granted an unlimited settlement permit (Niederlassungsbewilligung). 14. On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant on twenty-two counts of aggravated gang burglary and attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), forming a gang (Bandenbildung), extortion (Erpressung), assault (Körperverletzung), and unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs), offences committed between November 1998 and June 1999. He was sentenced to eighteen months’ imprisonment, thirteen of which were suspended on probation. The sentence was accompanied by an order to undergo drug therapy. 15. On 11 February 2000 the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed between June 1999 and January 2000. The applicant and his accomplices were suspected of having broken into shops or restaurants, where they stole cash and goods. On 11 February 2000 the Vienna Juvenile Court remanded him in custody. 16. On 25 May 2000 the Vienna Juvenile Court convicted the applicant on eighteen counts of aggravated burglary and attempted aggravated burglary, and sentenced him to fifteen months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, and the number of offences committed and the rapid relapse into crime after the last conviction as aggravating circumstances. It also observed that the applicant, though still living with his parents, had completely escaped their educational influence, had repeatedly been absent from home and had dropped out of school. It further noted that the applicant had failed to comply with the order to undergo drug therapy. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term. 17. On 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on section 36(1) and 2(1) of the Aliens Act 1997 (Fremdengesetz), imposed a ten-year exclusion order on the applicant. Having regard to the applicant’s convictions, it found that it was contrary to the public interest to allow him to stay in Austria any longer. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria. 18. The applicant, assisted by counsel, appealed. He submitted that the exclusion order violated his rights under Article 8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. He also referred to section 38(1)(4) of the Aliens Act 1997, pursuant to which an exclusion order could not be issued against an alien who had been lawfully residing in Austria from an early age. 19. By a decision of 19 July 2001, the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority’s finding. 20. On 17 August 2001 the applicant lodged complaints both with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichthof). He stressed that he had come to Austria at the age of six, had attended school in Austria and could not speak Bulgarian. He had no relatives or other social contacts in Bulgaria. He also stressed the fact that he was still a minor. 21. On 18 September 2001 the Administrative Court dismissed the complaint and found that the exclusion order was justified under Article 8 § 2 of the Convention. It observed that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – section 38(1)(4) of the Aliens Act 1997 prohibited an exclusion order only in respect of aliens who had been legally resident from the age of three or younger. Considering the gravity and number of offences committed by the applicant, the fact that the first conviction had rapidly been followed by a second one and the severity of the penalties imposed, it found that the exclusion order did not constitute a disproportionate interference with the applicant’s rights under Article 8, despite his lengthy residence and family ties in Austria. 22. By a decision of 19 September 2001, the Constitutional Court suspended the effects of the exclusion order pending its decision. 23. The applicant was released from prison on 24 May 2002 not having benefited from early release. According to the information given by counsel at the hearing, the applicant finished school during his prison term and helped in his father’s transport business after his release. 24. On 25 November 2002 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success. 25. In December 2002 a number of unsuccessful attempts were made to serve an order on the applicant to leave Austria. 26. On 18 August 2003 the Vienna Federal Police Authority issued a fresh order requiring the applicant to leave Austria. 27. On 14 October 2003 the order was served on the applicant at his parents’ address and subsequently the Vienna Federal Police Authority ordered his detention with a view to his expulsion. He was arrested on 27 November 2003. 28. On 22 December 2003 the applicant was deported to Sofia. According to information given by counsel at the hearing, the applicant did not commit any further offences in Bulgaria and has found employment there. 29. At the hearing, the Government informed the Court that the exclusion order will expire on 3 January 2011, that is ten years after its issue (see paragraph 17 above). 30. At the material time the Aliens Act 1997 (Fremdengesetz) was in force. Sections 36 to 38, in so far as relevant, read as follows: “(1) An exclusion order can be issued against an alien if it can justifiably be supposed, on the basis of specific facts, that his residence 1. endangers public peace, order and security; or 2. runs counter to other public interests specified in Article 8 § 2 of the European Convention on Human Rights. (2) The existence of specific facts within the meaning of paragraph 1 shall be made out, in particular, if an alien 1. has been sentenced by a domestic court to an unsuspended term of imprisonment of more than three months; to a term of imprisonment partly suspended on probation; or to a term of imprisonment of more than six months suspended on probation; or has been convicted by final judgment more than once for the same pernicious tendency to commit criminal acts.” “(1) Should there be an interference with the alien’s private or family life on account of ... an exclusion order, such a deprivation of the right of residence shall be permissible only if necessary as a matter of urgency in furtherance of one of the aims set out in Article 8 § 2 of the European Convention on Human Rights. (2) ... an exclusion order shall not in any case be issued if its effects on the alien and his family’s situation outweigh the adverse consequences of not taking such a measure. In weighing the above factors, regard shall be had in particular to the following circumstances: 1. the period of residence and the extent to which the alien or members of his family have integrated; 2. the strength of family or other ties.” “(1) An exclusion order shall not be issued if ... 4. the alien has grown up in the host country from early childhood and has been lawfully settled there for many years.” 31. The Administrative Court held that only aliens who had grown up in Austria from the age of three or younger had grown up there “from early childhood” within the meaning of section 38(1)(4) of the Aliens Act (see, for instance, decision of 17 September 2001, no. 96/18/0150; judgment of 2 March 1999, no. 98/18/0244; and judgment of 21 September 2000, no. 2000/18/0135). 32. Article 21 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides: “Minors are persons who have not yet reached the age of 18 years. ...” This version of Article 21 of the Civil Code entered into force on 1 July 2001. Before that date the age of majority was 19 years. 33. The following two Recommendations of the Committee of Ministers of the Council of Europe are of particular interest in the context of the present case. 34. The first one is Committee of Ministers Recommendation Rec(2000)15 concerning the security of residence of long-term migrants, adopted on 13 September 2000, which states, inter alia: “4. As regards the protection against expulsion (a) Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights’ constant case-law, of the following criteria: – the personal behaviour of the immigrant; – the duration of residence; – the consequences for both the immigrant and his or her family; – existing links of the immigrant and his or her family to his or her country of origin. (b) In application of the principle of proportionality as stated in paragraph 4 (a), member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled – after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; and – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years’ imprisonment without suspension. After twenty years of residence, a long-term immigrant should no longer be expellable. (c) Long-term immigrants born on the territory of the member State or admitted to the member State before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of 18. Long-term immigrants who are minors may in principle not be expelled. (d) In any case, each member State should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.” 35. The second one is Committee of Ministers Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification, adopted on 26 March 2002. It states that where the withdrawal of or the refusal to renew a residence permit, or the expulsion of a family member, is being considered: “... member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.” 36. The United Nations Convention on the Rights of the Child of 20 November 1989, to which Austria is a State Party, provides: “For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.” “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.” “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 takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” 37. The Committee on the Rights of the Child, in its concluding observations on the second periodic report of Austria (see CRC/C/15/Add. 251, 31 March 2005, §§ 53 and 54), expressed its concern about the increasing number of persons below the age of 18 placed in detention, a measure disproportionately affecting those of foreign origin, and recommended with regard to Article 40 of the Convention on the Rights of the Child that appropriate measures to promote the recovery and social integration of children involved in the juvenile justice system be taken. 38. In its General Comment no. 10 (2007) on children’s rights in juvenile justice (see CRC/C/GC/10, 25 April 2007, § 71), the Committee on the Rights of the Child emphasised with regard to measures in the sphere of juvenile justice: “... that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 § 1 of CRC [Convention on the Rights of the Child] ... In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration”. 39. Given the membership of Austria to the European Union (as from 1 January 1995) and of Bulgaria (as from 1 January 2007) the following two directives should be noted among those dealing with matters of migration, including the requirements for expulsion of nationals of another member State and third-country nationals. 40. The first one is Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. It provides: “1. Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security. 2. The decision referred to in paragraph 1 shall not be founded on economic considerations. 3. Before taking a decision to expel a long-term resident, member States shall have regard to the following factors: (a) the duration of residence in their territory; (b) the age of the person concerned; (c) the consequences for the person concerned and family members; (d) links with the country of residence or the absence of links with the country of origin. ...” 41. The second one is Council Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States. It provides: “1. Subject to the provisions of this chapter, member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. ...” “1. Before taking an expulsion decision on grounds of public policy or public security, the host member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member State and the extent of his/her links with the country of origin. 2. The host member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member States, if they: (a) have resided in the host member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.” 42. The case-law of the Court of Justice of the European Communities (ECJ) shows that measures of non-admission or expulsion have to rely on the individual conduct of the person concerned and on an assessment of whether the person concerned presents a genuine, present and sufficiently serious threat to public policy, public security or public health. 43. In its Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg judgment of 29 April 2004 (Joined Cases C–482/01 and C493/01, operative part, points 3-5) the ECJ stated: “3. Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court. 4. Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public policy. 5. Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another member State who has received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host member State and can plead family circumstances against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.” 44. In its Commission of the European Communities v. Spain judgment of 31 January 2006 (Case C-503/03, operative part, point 1) the CJEU stated: “... by refusing entry into the territory of the States Parties to the Agreement on the gradual abolition of checks at their common borders, signed on 14 June 1985 at Schengen, to Mr Farid, and by refusing to issue a visa for the purpose of the entry into that territory to Mr Farid and Mr Bouchair, nationals of a third country who are the spouses of member-State nationals, on the sole ground that they were persons for whom alerts were entered in the Schengen Information System for the purposes of refusing them entry, without first verifying whether the presence of those persons constituted a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 to 3 of Council Directive 64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.”
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train
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001-67880
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ENG
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NLD
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ADMISSIBILITY
| 2,004
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I.I.N. v. THE NETHERLANDS
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Inadmissible
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David Thór Björgvinsson;Mark Villiger
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The applicant, Mr I.I.N., is an Iranian national, who was born in 1975 and currently lives in the Netherlands. He is represented before the Court by Mr H.A. Limonard, a lawyer practising in Zwolle. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 April 2001 the applicant applied for asylum in the Netherlands. He claimed that, in May 1999 and in June/July 1999, he had been arrested during a demonstration. On both occasions he had been ill-treated during his detention and released after one day. He further claimed that in January/February 2001 he had been caught by a policeman when he was kissing a male friend in an alley. He was arrested and taken to the vice squad police office where his particulars were recorded and his fingerprints taken. He was forced to write and sign a statement in which he declared that he was a homosexual and that he had been caught in flagrante delicto. After having been raped by this policeman, he was released the next day. He was told by the policeman that he should report daily to him at the vice squad police station. The applicant further stated that this policeman had raped him on two further occasions when he had reported to him at the police station. The applicant also claimed that, on 18 March 2001, he had attended a protest meeting in the course of which films had been shot and photographs taken, including photographs of the applicant in the company of a good friend. This friend was arrested at the meeting and released on the next day. On 4 April 2001, the friend's body was found in a ditch. The words “freedom of expression has this as a consequence” had been written on the body. Fearing the same fate, the applicant decided to flee Iran. He had travelled by car to Turkey and from there by airplane to the Netherlands. He arrived in the Netherlands on 23 April 2003. On 31 October 2001, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's asylum request, holding that the applicant's account lacked credibility. The applicant's appeal against this decision was rejected on 17 April 2003 by the Regional Court (arrondissementsrechtbank) of The Hague sitting in Assen. The Regional Court held: “The Regional Court notes that the defendant has rejected the request under Article 31 § 2 (f) of the 2000 Aliens Act (Vreemdelingenwet). Pursuant to this provision, in the determination of an [asylum] application, account must also be taken of the fact that the alien has not been able to submit any supporting travel or identity documents or other documents necessary for the determination of the application, unless the alien can demonstrate that he cannot be held responsible for the non-production of such documents. The defendant has observed in this context that it cannot be considered credible that the [applicant] would not have been in possession of personal documents during his journey though Iran and was unaware of the Iranian legal rules on this point since there is an identification obligation in that country for all persons from the age of sixteen onwards. In addition, and contrary to his stated intentions, the [applicant] has not had sent to the Netherlands documents from which his identity could be confirmed. The defendant furthermore does not consider it plausible that the [applicant] was unable to submit a single indicative element of proof of his journey to the Netherlands. The [applicant] has also been unable to submit newspaper reports about the events of 18 March 2001 or to indicate in which newspapers information about these events was published. However, according to the [applicant], such information had been published. In addition to the above, the defendant has found that the [applicant], who indicated that he had been politically active, was unable to state clearly the activities in which he had been engaged. In the opinion of the defendant, the [applicant] has also given vague and incredulous statements about the events of 18 March 2001, the audiovisual recordings of these events, the death of his friend in relation to these events and the manner in which he was informed of his death. The defendant further considers it doubtful that the [applicant] participated in the meeting of 18 March 2001 as he would have attracted the negative attention of the authorities and would have been subject to an obligation to report daily. The [applicant] also remained two weeks in his home but failed to comply with his obligation to report daily. Also, the arrests and detentions alleged by the [applicant] in the months of May and June/July 1999 cannot be considered credible as in that period the [applicant] was still doing his military service. Being a conscript, it cannot be considered credible that he would have been unconditionally released on each occasion after one day without encountering any negative consequences, whereas an intelligence file on him would have existed. The defendant also considers it not credible that the [applicant] would have been caught performing homosexual acts. Moreover, given what is known about that, it is not plausible that the [applicant] would be punished solely on account of homosexual conduct. The Regional Court is of the opinion that the defendant's decision can pass the judicial test. ... In the court's opinion, the defendant could, having regard to the extensive reasoning in his decision as set out above, which has remained unchallenged in both the written and oral appeal submissions, in all reasonableness find the applicant's account not credible. The defendant has justifiably and on good grounds decided that the [applicant] cannot be regarded as a refugee. As regards the report of the UNHCR (United Nations High Commissioner for Refugees) Berlin submitted by the applicant, the Regional Court considers that this cannot be given the significance sought by the [applicant]. According to the constant case-law, an official report (ambtsbericht) of the Minister of Foreign Affairs must be regarded as an expert report, and the contents of the report cited by the [applicant] do not contain a definite rebuttal of the information on the punishment of homosexuals set out in the official report of 24 August 2001. Therefore, it is not necessarily contradictory. The [applicant] cannot, therefore, derive entitlement to a residence permit from Article 29 § 1 (a) of the 2000 Aliens Act. Noting the above considerations, it has also not been established that the [applicant] has well-founded reasons for assuming that he, when expelled, runs a real risk of being subjected to torture, inhuman or degrading treatment or punishment ... The Regional Court further finds no appearance of such compelling reasons of a humanitarian nature linked to the reasons for leaving the country of origin that the defendant could not, in all reasonableness, have adopted the position that the [applicant] can be asked to return to his country of origin...” The applicant's subsequent appeal was rejected on 16 July 2003 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, which upheld the Regional Court's judgment of 17 April 2003. The general official report (algemeen ambtsbericht) on Iran of the Netherlands Ministry of Foreign Affairs, dated 24 August 2001 and in so far as relevant, states: “Homosexuality is a big taboo subject in Iranian society. There are however meeting places. It is known that there are some parks in Teheran where many homosexuals meet up in the evening. Generally speaking, it can be said that people seeking homosexual relations in Iran are known to find their way. It must however be noted that openness about that is avoided. A person does not openly display his or her sexual orientation. In Iran, in general, sexuality in public is surrounded by a certain degree of circumspection. Homosexual contacts are not actively prosecuted. No cases of conviction solely for homosexual acts are known, although according to the Shari'a such acts attract the death penalty. If a conviction of a person also entails a charge of homosexuality, this is taken into account cumulatively in combination with other criminal offences related to alcohol, drugs and prostitution. A certain degree of openness is displayed in respect of these last matters. These cases can be brought before both an ordinary (public) court and a Revolutionary Tribunal. If such matters are presented as “earthly corruption” (Mofsed fil Arz) the Revolutionary Tribunal has competence. Sex change operations are permitted in Iran and are in practice performed.” The most recent general official report on Iran of the Netherlands Ministry of Foreign Affairs, dated April 2004 and in so far as relevant, states: “Homosexual acts do not form in practice a reason for persecution by the authorities. Homosexuality is a taboo subject in public life. It is known that there are parks in Teheran that serve as meeting places for homosexuals. There are no known cases in the past years of convictions based solely on the provisions of the Criminal Code – set out below – concerning homosexual acts. In 2003 the media reported in one case about a conviction of homosexual acts in conjunction with other offences such as rape and violence. According to some foreign observers there are indications that [accusations of sexual offences] are sometimes abused for political purposes, or as a means of pressure in conflicts between private individuals. Legal framework In Article 108 of the Iranian Criminal Code, homosexual conduct is defined as intercourse and related acts between two men. The hadd-punishment for homosexual intercourse is the death penalty; the manner of its execution is determined by the judge. This punishment applies to both “active” and “passive” participants in the intercourse, but only if they are adult and of sound mind, and have acted of their own free will. If one of them is a minor, he will – provided he has acted of his own free will – be given a ta'zirat punishment. The punishment of the adult will remain the haddpunishment. If both partners are minors, they will be judged according to ta'zirat. The ta'zirat punishment may run to 74 whiplashes (Articles 108-113 of the Iranian Criminal Code). According to hudud [plural of “hadd”], the punishment for homosexual acts not involving intercourse is 100 whiplashes. ... If these acts have been repeated three times, and each time a hadd-punishment has been imposed, the death penalty is imposed the fourth time. ... Kissing another man out of lust attracts a ta'zirat punishment of up to 60 whiplashes (Articles 121-124 of the Iranian Criminal Code). In order to be punished according to hudud, the person concerned must confess four times before a religious judge, otherwise he will be judged under ta'zirat. This confession is only legally valid if the person concerned is an adult, of sound mind and has made the confession of his own free will. Homosexual acts can only be proven by four male witnesses who have seen the deed with their own eyes. Testimony given by a woman is not valid. If testimonies turn out to be false, the witnesses will be prosecuted for this (Articles 114-119 of the Iranian Criminal Code). The hadd-punishment shall be spared if the accused shows remorse before the witnesses give their statements. If he shows remorse after the witnesses have given evidence, the punishment will not be spared (Article 126 of the Iranian Criminal Code).” In the UNHCR (United Nations High Commissioner on Refugees) Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran, dated January 2001, the following is stated in respect of homosexuals: “The Islamic Penal Law of Iran deals extensively with sodomy, lesbianism and pimping. Homosexuality is forbidden by Islamic law, and will be punished. Sodomy, defined as “sexual intercourse with a male”, is punishable by death if both parties “are mature, of sound mind and have free will”.310 It must be proven by either four confessions from the accused, the testimony of four “righteous men” who witnessed the act, or through the knowledge of a Shari'a judge “derived through customary methods”. If the accused repents before the witnesses testify, the penalty “will be quashed”. According to the Ta'azirat of November 1983 (valid to June 1996) sentences of imprisonment for between one and 10 years and up to 74 lashes are possible. The death penalty may also be incurred if the act is deemed “Act against God and corruption on earth”. Since June 1996, the revised Ta'azirat omits direct threat of lashes or the death penalty, but may impose closure of premises where the act took place. ... The most recent report of execution is of the death by stoning of a man in 1995, on charges of repeated acts of “adultery and sodomy”.” A position paper on persecution of homosexuals in Iran, issued by the UNHCR Branch Office in Germany in January 2002 states inter alia: “Although, in so far as known to the UNHCR, the most recent reported execution by stoning for repeated homosexual acts and adultery took place in 1995, local newspapers continue to report about executions of homosexuals. In the absence of a systematic observation of the human rights situation in Iran, it cannot be confirmed whether the persons concerned have been convicted and executed solely for homosexual acts or also for additional charges. It does occur that homosexuality is one of several charges. In view of the multiplicity of executions and lashings, it cannot be excluded the victims thereof include persons being punished – on grounds of homosexuality – by death or lashing as provided for on the Iranian Criminal Code. Against this background it cannot be asserted with certainty that the criminal law provisions on homosexuality only have a theoretical significance.” A Danish fact-finding mission (Danish Immigration Service) to Iran in September 2000 issued a Special Report dated 16 January 2002 which, in so far as relevant, reads: “5.5 Homosexuals During their visit to Teheran, the delegation had an opportunity to discuss the situation for homosexuals in Iran with several of their contacts. According to one source with a good knowledge of the Iranian judicial system, the penalty for homosexuality is death by hanging. There is no minimum punishment. However, the source stressed that the burden of proof is heavy. In order for sentencing to take place, the homosexual act must be testified to in court by four persons who witnessed the act, or else both of the persons involved must confess to the relationship. A government source added that cases relating to homosexuality are extremely difficult to prove. A Western embassy confirmed that the burden of proof is heavy. Another Western embassy said that the authorities in the source's home country attach great importance to the burden of proof when processing asylum applications from Iranian citizens whose claims are based on homosexuality. A Western embassy said that it had never heard of cases relating solely to homosexuality. According to the same source, however, a man who had been charged with 15 counts of indecent behaviour had been executed the week before... He had also been found guilty of raping a 12 year old boy in his shop. According to a Western source familiar with the homosexual scene in Tehran, it had never heard of cases being brought against homosexuals. The source thought that the homosexual community would be aware of any cases being brought against persons solely on the grounds of their homosexuality. A source connected with a Western news agency thought that any cases brought against homosexuals would not be brought to public attention. In view of that fact, the source could not rule out the possibility that there might be cases where the charge relates to homosexuality. In that connection the source referred to a case in a military prison where a prisoner let slip to a warder about a homosexual relationship he had had. The prisoner was subsequently sentenced to 100 lashes. According to a government source, homosexuals do not experience any problems in Iranian society; in other words, few cases relating to homosexuality have been brought before the Iranian courts. However, according to a source with good knowledge of the Iranian judicial system, many cases concerning homosexuality have been brought before the Iranian courts. The source was unable to provide further details of the cases in question. With regard to sentences passed in such cases, the source could say only that the death penalty had been pronounced in several. The source added that if a case was not fully substantiated, it was for the judge to decide on the punishment. When the delegation asked why such cases were brought, the source replied that this was because one of the parties involved in the homosexual relationship had contacted the courts. According to a government source, a person cannot accuse himself. With regard to homosexuality, this means that – in his opinion – if an Iranian citizen reveals himself as a homosexual in a Danish newspaper, nothing will happen to that person when he returns to Iran. Several Western sources, including one embassy, said independently that homosexuals do not face problems in Iran today. There are places where homosexuals meet. In that connection, two of the Western sources mentioned that there are parks in Tehran which are meeting places for homosexuals.” The Canadian Immigration and Refugee Board report on the treatment of homosexuals in Iran dated 11 February 1998 and updated on 20 January 2003 states inter alia: “Theoretically, homosexual behaviour is sharply condemned by Islam, but in practice it is present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates ... In practice it is only public transgression of Islamic morals that is condemned, and therefore Islamic law stresses the role of eye-witnesses to an offense. The police are not allowed to go in search of possible sinners, who can only be caught red-handed, and not behind the “veil of decency” of their closed doors ... The generally tolerant attitude toward homosexual practice can partly be explained by the fact that it will usually take place discreetly. Moreover it does not have serious personal consequences such as for example, heterosexual adultery would have. ... According to the representative of the Swedish Amnesty Group for Gay and Lesbian Concerns ... who is also an activist working with the International Gay and Lesbian Association ... none of the few known executions of homosexuals and lesbians in Iran were carried out on the sole basis of homosexuality. ... In its 1996 report the Embassy of Sweden states that: The strict regulations for submission of evidence, four male witnesses to the homosexual penetration, alternatively four confessions from each of the active partners, renders a sentence for homosexuality almost impossible in practice. The police and justice administration do not take active measures to investigate the existence of homosexuality, nor do they actively hunt homosexuals. All in all, the situation in practice in Iran is drastically different from the impression conveyed by the Shari'a inspired penal code. According to the information from usually very reliable sources, no homosexuals have been executed in Iran for the last few years. In order to risk policiary sanctions – maltreatment or a short time in custody/jail, regardless of the fact that the penalty according to the law is death or whipping - a homosexual couple must behave with great indiscretion, almost provocatively, in a public place. According to a sociologist specializing on Iran and chargée de conferences at the Sorbonne-Nouvelle (Paris-III), the law stipulates that people engaging in sexual relations with a person of the same sex ... would only be put on trial if the prosecution can produce four righteous men who witnessed the sexual act, or one of the partners admits to having sexual relations with another man ... If there are fewer than four men to testify to the homosexuality of a person, the accusation of homosexual activities cannot be proven. The sociologist stated that it would be suicidal to 'admit one's homosexuality' and added that such an admission is implausible. In practice, the burden of proof lies so heavily on the prosecution that ... a homosexual will very rarely be tried or sentenced. The sociologist has never come across any case that went to trial and stated there are many more stonings for heterosexual relations prior to marriage and for adultery than for homosexuality. Another sociologist ... at the Université de Paris stated ... that legislative repression is not directed against 'homosexuals' but against heterosexual relations outside marriage. Repressing 'homosexual activities' is rare for the security forces because of the difficulty of identifying who is 'homosexual' and who is not since Iranian men have very close physical contact (holding hands and kissing) which is socially acceptable behaviour in Iran. It is very rare that a person would be arrested for 'homosexuality' but if a person were arrested and convicted as a homosexual the punishment would be harsh. According to another sociologist and a researcher on Iran with the CNRS, although Muslim and Iranian laws punish 'homosexuality' by death, in practice, it rarely happens, except in the cases of pedophilia ... 'Homosexuality' is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity. It would be repressed only when made public and asserted, an implausible occurrence in Iran. A 2 February 1998 letter from the Director of the Iran Desk at the Alien Appeals Board of Sweden in Stockholm states that: Furthermore it is not known that Iranian authorities are actively taking legal actions against homosexuals. It is most unlikely that the authorities would take proceedings against a homosexual as long as he does not manifest his disposition in an open and public manner. As far as the Alien Appeals Board knows not anyone has been prosecuted on homosexuality charges alone in Iran for the past seven to eight years. There are many indications that there is a significant difference between the legal texts and the practice of the security forces. As far as the behaviour of homosexual persons can be taken as a relevant indication about the degree of oppression of homosexuals, the impression is rather that the situation in Iran is relatively tolerant, since homosexuality is by no means unusual in Iran. Certain 'health clubs' in Tehran are for example known to be frequented by homosexuals. Furthermore, it is by no means unusual to meet openly homosexual persons –under otherwise heterosexual private circumstances like social events. ... There is a park in central Teheran called Daneshju (student) that is famous and well-known as a place where men who are looking for sexual relationships with other men meet. The sociologist added that the public and the security forces are aware of the park's reputation ...” In a decision taken on 26 May 2003 in the case of K.S.Y. v. the Netherlands (Communication No. 190/2001), the United Nations Committee Against Torture rejected the complaints of a citizen of Iran who complained that the Netherlands were proposing to expel him to Iran where he claimed that he had previously been detained and tortured for his homosexuality and would face further risk of torture. It noted the contradictions and inconsistencies in his account and also “from different and reliable sources that there is currently no active policy of prosecution of charges of homosexuality in Iran”. It accordingly found that it had not been given enough evidence to conclude that the complainant would run a personal, present and foreseeable risk of being tortured if returned to his country of origin. The Country Information and Policy Unit Assessment (Immigration and Nationality Directorate of the Home Office of the United Kingdom) on Iran, dated October 2003, states in its relevant part: “6.167. Although homosexuality is never spoken about and thus a hidden issue, in practice it is not difficult to encounter homosexuals in Iran. There are special parks in Tehran, known as homosexual meeting places. There are also a large number of transvestites walking around in North Tehran. Furthermore, sex changes are permitted in Iran and operations are frequently and openly carried out. A different sexual orientation may, however, create problems. Still, homosexuality is practised every day, and as long as this happens behind closed doors within your own four walls, and as long as people do not intend to proselytise “transvestitism” or homosexuality, they will most likely remain unharmed. 6.168. Technically, homosexual behaviour is sharply condemned by Islam, and the Islamic code of law (Sharia law) adopted by Iran. Sodomy is punishable by death if both parties are considered to be adults of sound mind and free will. It must be proven by either four confessions from the accused, the testimony of four righteous men who witnessed the act or through the knowledge of a Sharia judge “derived through customary methods”. If the accused repents before the witnesses testify, the penalty “will be quashed”. 6.169. From a legal point of view it is important to take a look at Iranian law the Islamic Punishment Act, which carries the following provisions for homosexual acts: Art. 110: The prescribed punishment for homosexual relations in case of intercourse is execution and the mode of the execution is at the discretion of the religious judge. Art. 111: Homosexual intercourse leads to execution provided that both the active and the passive party are of age, sane and consenting. Art. 112: Where a person of age commits homosexual intercourse with an adolescent, the active party shall be executed and the passive party, if he has not been reluctant, shall receive a flogging of up to 74 lashes. Art. 113: Where an adolescent commits homosexual intercourse with another adolescent, they shall receive a flogging of up to 74 strokes of the whip unless one of them has been reluctant. Art. 114 to 126 establish how to prove homosexual intercourse. Art. 127 to 134 relate to lesbian sexual relations. Punishment for sexual intercourse among lesbians is 100 lashes and in case of recidivity 3 times execution. 6.170. So far, no cases of execution only on the grounds of homosexual relations have been identified. In fact, the burden of proof is quite high and it would be difficult to prove homosexual liaisons or intercourse. According to some reports in local papers there have been instances of execution of homosexuals. It is not confirmed whether the homosexual act alone led to execution or whether the person was accused on other charges too. 6.171. Last year there were reports that a man accused of sodomising and then murdering his nephew was to be thrown over a cliff in a sack. This was given widespread publicity by the Iranian opposition in the UK and was taken up by other wires, but we have heard no reports that the sentence was ever carried out. 6.172. However, jurisprudence, burden of proof notwithstanding, certainly has used accusations of homosexuality. Furthermore, it does happen that homosexuality is mentioned as one of the accusations amongst other offences held against the defendant. For instance, accusations of homosexuality have been used in unfair trials, such as the case of a Sunni leader in Shiraz in 1996/97, who was clearly prosecuted for political reasons. There have also been other political cases, although not in the recent past. 6.173. According to the Ta'azirat of November 1983, valid to June 1996, sentences of imprisonment between 1 and 10 years and up to 74 lashes are possible. The death penalty may also be incurred if the act is deemed “Act against God and corruption on earth”. Since June 1996 the revised Ta'azirat omits direct threat of lashes or the death penalty. The penalties of lashing and of death are, however, still judicial options, even though they are not mentioned within the revised Ta'azirat. Reports suggest that since 1996 they have rarely been used. The most recent report of execution is of the death by stoning of a man dates from 1995, on charges of repeated acts of “adultery and sodomy”. Reports of use of the death penalty in cases where the only offence is sodomy/execution are extremely difficult to substantiate, and are held to be an unlikely sentence. More usually lashing is the punishment. 6.174. However, strict though the legal position is, expert opinion consulted by the Canadian IRB [Immigration and Refugee Board] states “... in practice homosexuality is present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates... In practice it is only public transgression of Islamic morals that is condemned and therefore Islamic law stresses the role of eye-witnesses to an offence.” 6.175. The same source stated that the police are not empowered nor do they actively pursue homosexual activity of any kind that is performed behind the “veil of decency” of closed doors. 6.176. Sources indicate that there are held to be many differing levels of homosexual activity within Iranian society. In rural areas, even "lavat" - sexual activity can be considered socially to be compensatory sexual behaviour for heterosexual sexual intercourse, and the practitioners held not to be homosexuals. The key offensive practice is sodomy, or more particularly to be sodomised, as an unnatural inversion of God's creation, and some experts hold that “homosexuals” are understood in Iran to be willing passive partners.”
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