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train
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001-23086
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,003
|
DES FOURS WALDERODE v. THE CZECH REPUBLIC
| 4
|
Inadmissible
| null |
The applicant, Mr Karel Des Fours Walderode, was a Czech and Austrian national. He was born in 1904 and died on 6 February 2000. On 25 February 2000 the applicant’s widow, Mrs Johanna Kammerlander, informed the Court that she wished to pursue the application originally lodged by her husband, who had designated her as his universal heir. She is an Austrian national, born in 1947, and lives in Vienna, Austria. Having regard to its practice in similar cases, the Court accepted Mrs Johanna Kammerlander as the person entitled to pursue the application (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII, with further references). The facts of the case, as submitted by the applicant, may be summarised as follows. Gabrielle Des Fours Walderode, the applicant’s stepmother, Maximilian and Louis Des Fours Walderode, his stepbrothers, all German nationals, owned real estate in former Czechoslovakia. In 1945 the property owned by the applicant’s stepbrothers and part of the property owned by the applicant’s stepmother was confiscated pursuant to Presidential Decree no. 12/1945 on the Confiscation and Expedited Allocation of the Agricultural Property of Germans, Hungarians, Traitors and Enemies of the Czech and Slovak nations (dekret presidenta republiky ze dne 21. června 1945 konfiskaci a urychleném rozdělení zemědělského majetku Němců, Maďarů, jakož i zrádců a nepřátel českého a slovenského národa), which entered into force on 21 June 1945. The remainder of the property of the applicant’s stepmother was confiscated pursuant to Presidential Decree no. 108/1945 on the Confiscation of Enemy Property and National Restoration Funds (dekret presidenta republiky ze dne 25. října 1945 o konfiskaci nepřátelského majetku a Fondech národní obnovy), on 22 September 1948, on the ground that she had been a Nazi and that her sons, Maximilian and Louis, had served in Hitler’s SS troops. Nikolaus Des Fours Walderode, the applicant’s father, had sold his real estate to third persons on an unknown date before the Second World War. Maximilian Des Fours Walderode died on 16 May 1945. Louis Des Fours Walderode served in the German Army during the Second World War and was declared to be presumed dead as from 30 June 1944 by the Schöneberg District Court (Amtgericht) on 27 May 1992. The applicant’s stepmother died on 22 October 1955. She left her real estate to the applicant, conferring the succession rights of her deceased sons, Maximilian and Louis, on the applicant. She had never acquired Czechoslovak citizenship. The applicant left Czechoslovakia in 1949, thereby forfeiting his Czechoslovak citizenship, and returned in 1991. Czech citizenship was granted him on 25 August 1992. On 14 July 1992 the applicant’s legal representative lodged a claim for the restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no. 12/1945 and which had been sold by his father before the Second World War. He referred to the Land Ownership Act of 1991 (see the “Relevant domestic law and practice” below), alleging that he had inherited the property. On 6 February 1995 the Jablonec nad Nisou Land Office (pozemkový úřad) dismissed the applicant’s claim in proceedings to which seven municipalities and seventeen other legal persons - the owners of the property at the material time - were parties. The Land Office held that the applicant’s stepmother and stepbrothers had not been loyal to the Czechoslovak State during the German occupation (1938-45) and had not acquired Czechoslovak citizenship after the Second World War. It referred to the documentary evidence, including the decision of the Prague Central National Committee (Ústřední národní výbor) of 22 September 1948 confiscating the remainder of the stepmother’s property under Presidential Decree no. 108/1945 on the ground that she had been a Nazi and that her sons, Maximilian and Louis, had served in Hitler’s SS troops. The Land Office found that the property at issue had been put under national administration in 1945, that it had subsequently been confiscated pursuant to Presidential Decree no. 12/1945, and that the real estate of the applicant’s father had been transferred to third persons before the Second World War. It concluded, with reference to section 2(1) of the Restitution Act 1992, that the applicant was not the owner of the property as his stepmother and stepbrothers (the original owners of the property) had not satisfied the requirements for restitution set out in this Act, and that the applicant’s claim in respect of his father’s former property fell outside the scope of the restitution legislation. The applicant appealed to the Prague Municipal Court (městský soud), through his counsel, against the administrative decision, alleging, inter alia, that the Land Office had not sufficiently established the facts of the case. He also argued that his stepmother had waived her deceased sons’ succession rights in his favour, and that neither she nor his stepbrothers had been Nazis. He maintained that Presidential Decree no. 12/1945 should not have been applied to his stepbrothers because at the time of its entry into force (21 June 1945) his stepbrothers were dead. The applicant further claimed that, during the German occupation, the German legal system had been in force in the territory of former Czechoslovakia. He claimed that under the German Civil Code of 18 August 1896, an estate passed to the heirs upon the death of a testator and that therefore half of Louis’s property had passed to his stepmother, a quarter to Maximilian and another quarter to himself. In these circumstances, he had inherited one-quarter of Louis’s property on 30 June 1944 and part of Maximilian’s property on 16 May 1945 in the form of hereditas iacens (ležící pozůstalost; “dormant” inheritance; ruhender Nachlaβ) (see page 9 below, the Civil Code 1881). He further claimed that, as his stepmother had conferred her deceased sons’ succession rights on him, he had acquired the whole estate. On 16 April 1996 the Municipal Court, after having assessed a substantial amount of documentary evidence and having heard the parties to the dispute, upheld the Land Office’s decision. The court, refusing to grant the applicant leave to appeal, said in particular: “The court does not share the applicant’s opinion that he was the owner of the property as at the time when the confiscation under Presidential Decree no. 12/1945 took place, Louis and Maximilian Des Fours Walderode were registered in the Land Register as the owners of the property. In its legal analysis, the court considered Presidential Decree no. 11/1944 on the Restoration of Legal Order, which expresses the principle of the legal continuity of the Czechoslovak legal order. The Decree provides that legal provisions enacted up to 29 September 1938 ... constituted part of the Czechoslovak legal order; those adopted during the German occupation (between 30 September 1938 and 4 May 1945) did not form part of the Czechoslovak legal order ... However, the Decree defined certain legal provisions enacted on Czechoslovak territory under the German occupation which could be applied during a transitional period, provided that they were not contrary to the Czechoslovak Constitution ... Act no. 195/1946 on the Applicability of Legal Regulations from the Period of Occupation annulled the applicability of all legal provisions enacted during the German occupation ... By Article 1 of the Order on the Acquisition of German Citizenship by Czechoslovak Citizens of German Nationality of 20 April 1939, Czechoslovak citizens of German nationality living on the territory of former Czechoslovakia on 10 October 1938 acquired German citizenship with effect from 16 March 1939 ... at the latest. In order to determine the citizenship of Louis and Maximilian Des Fours Walderode, regard has to be had to the President Beneš Decree no. 33/1945 on the Czechoslovak citizenship of German and Hungarian nationals, under which German or Hungarian nationals lost their Czechoslovak citizenship by acquiring German or Hungarian citizenship. Czechoslovak citizens lost their citizenship on the date when they acquired the citizenship of the foreign occupying power: German nationals from the frontier territories of the Czech lands and Moravia (Sudety; Sudetenland) on 10 October 1938, and German nationals from other parts of the Czech lands and Moravia on 16 March 1939. In these circumstances, it is clear that the applicant’s stepbrothers acquired German citizenship on 16 March 1939 at the latest .... In 1992 Louis Des Fours Walderode was declared to be presumed dead as from 30 June 1944, .... His estate, which has not yet been administered, could not have been administered by the national authorities before he was declared to be presumed dead .... Presidential Decree no. 33/1945 recognised exclusively the foreign occupying power’s measures on the acquisition of German citizenship by Czechoslovak citizens of German nationality. Louis Des Fours Walderode therefore died on 30 June 1944 as a German citizen. ... Maximilian Des Fours Walderode died in Josefodol (former Czechoslovakia) on 16 May 1945. Having regard to Presidential Decree no. 33/1945, he died as a German citizen. His estate has not yet been administered by the national authorities. ... The applicant’s objection that civil cases brought by German citizens residing in the Sudetenland had to be dealt with under the German legal order, until Act no. 195/1946 came into force, is not correct. Actually, Act no. 195/1946 annulled only the applicability of those legal acts adopted during the German occupation which had been applicable, on a transitional basis, under Presidential Decree no. 11/1944 to the extent that they had not contravened the Czechoslovak Constitution ... As Louis Des Fours Walderode lived in Prague and Maximilian Des Fours Walderode lived in Josefodol, they were, at the time of their respective deaths, subject to the Czech Civil Code 1811, which was in force in the Czech lands until the end of 1950 ... Under Article 819 of the Czech Civil Code 1811, an heir acquired an estate upon its distribution. The time of acquisition of the estate and death of a testator did not therefore fall within the same period. From the death of a testator until the time of distribution of the estate, the property was subject to hereditas iacens. Before its acquisition by an heir, property subject to hereditas iacens was considered to have been owned by the testator .... In order to assess whether the property subject to hereditas iacens was confiscated from the testator or his heirs, the stage of the inheritance proceedings concerning the property subject to hereditas iacens at the time of the confiscation is relevant ... The property at issue was confiscated from Louis and Maximilian Des Fours Walderode, who were already dead, but were still the notional owners of the estate as it had not been acquired by an heir. The property in question was confiscated ex lege by Presidential Decree no. 12/1945. The court considers that the property could properly be confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir. On the basis of the aforementioned facts, the Municipal Court found, like the Land Office, that Gabrielle, Louis and Maximilian Des Fours Walderode had been the original owners of the property which had been confiscated under Presidential Decree no. 12/1945. They were German nationals, and therefore the confiscation under Decree no. 12/1945 had taken place in accordance with law, and the applicant’s restitution claim falls to be considered under the Restitution Act 1992. As the original owners did not reacquire Czech citizenship as provided for in section 2(1) of the Restitution Act 1992, the applicant cannot be considered to be entitled to restitution under this provision ... As to the remainder of the real property claimed by the applicant, it had been sold by his father before the Second World War to third persons and is, therefore excluded from restitution ... ” On 25 June 1996 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud). He alleged, in particular, that the Municipal Court had breached Article 1 (freedom and equality regarding dignity and rights), Article 3 (non-discrimination), Article 4 § 3 (equal treatment), Article 36 § 2 (the right to judicial review) and Article 11 § 1 (property rights) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). He also requested that section 2(2) of Act no. 30/96 and section 2(3) of the Restitution Act 1992 be repealed as unconstitutional, that section 9(3) of the Land Ownership Act and section 3(2) of the Restitution Act be modified, and finally that the latter be amended to apply to the restitution rights referred to in section 6(1) paragraphs (o), (p) and (r) of the Land Ownership Act. He submitted, inter alia, that his stepmother had overriden her deceased sons’ succession rights in his favour and that he had been forced to leave Czechoslovakia after the Second World War. He maintained that, although he had lost his Czech citizenship in 1949, it had been restored to him in 1992. Lastly, he contested the Municipal Court’s findings of fact and law. On 5 June 1997 the Constitutional Court dismissed the applicant’s appeal as unsubstantiated. It stated that, pursuant to Presidential Decree no. 11/1944, legal provisions which had been enacted during the German occupation had not formed part of the Czechoslovak legal order, save those that had not contravened the Czechoslovak Constitution. In any event, Act no. 195/1946 had annulled the applicability of all legal provisions enacted during the German occupation on Czech territory. The applicant’s objection that civil cases brought by German citizens residing in the frontier territories of former Czechoslovakia had fallen within the German legal order until Act no. 195/1946 came into force, was irrelevant as the Sudetenland had been transferred to the German Reich by virtue of the Treaty of Munich, which had later been declared null and void ex tunc. The decision stated that, according to international law, the Sudetenland had not ceased to be part of Czechoslovak territory and that all legal relations on that territory had been governed by the Czech legal order. The Constitutional Court found that, under the Civil Code 1811, Louis and Maximilian Des Fours Walderode had been subject to Czechoslovak law at the time of their deaths. According to the Civil Code, an heir acquired the estate upon its distribution. In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period. In order to transfer the estate to an heir, special ex officio proceedings before the national courts had to be instituted of the court’s own motion. If such proceedings were not instituted, the estate was hereditas iacens until delivery of a court judgment. Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings. The estate was considered as being in the possession of a testator until acquired by an heir. The Constitutional Court further held as follows: “ ... in order to determine the persons from whom the hereditas iacens property was confiscated, it is necessary to establish at what stage of the inheritance proceedings the confiscation took place. In the present case the confiscation was carried out when Louis and Maximilian Des Fours Walderode were dead; however, the estate has not yet been administered by the national authorities ... Therefore, ... the applicant has never acquired the property at issue.” The Constitutional Court stated that as Louis and Maximilian Des Fours Walderode had not been entitled to claim restitution of the property under the Land Ownership Act and, since Gabrielle Des Fours Walderode was of a German origin and had never acquired Czechoslovak citizenship, the applicant himself could not be entitled to claim restitution pursuant to this Act. The Constitutional Court also examined whether the applicant’s right to a fair hearing had been violated in the restitution proceedings. It found no such violation. It held lastly that, as the applicant’s constitutional appeal was unsubstantiated, it was not possible to deal with his application to repeal, modify or amend the statutes specified by him. The Constitutional Court noted that it was not a legislative body, and was therefore not empowered to enact, modify or amend statutes. (a) In 1995 the applicant instituted inheritance proceedings before the Berlin-Schöneberg District Court (Amtsgericht) in respect of the property claimed in the above restitution proceedings. On 7 June 1995 the District Court issued two certificates of succession (Erbschein) to the effect that the applicant was the universal heir of his stepbrothers. (b) On 3 March 1995 the relevant German authority (Deutsche Dienststelle für die Benachrichtigung der nächsten Angehörigen von Gefallenen der ehemaligen deutschen Wehrmacht) issued a document certifying that the applicant’s stepbrothers had not served in the SS troops. (c) The applicant was the owner of real estate in Hrubý Rohožec. This was confiscated from him pursuant to Presidential Decree no. 12/1945 on 21 June 1945. On 6 August 1945 the Turnov District National Committee (Úřad okresního národního výboru v Turnově) acknowledged the confiscation and granted him leave to appeal to the Prague Land National Committee (Zemský národní výbor v Praze). (d) On 2 November 2001 the United Nations Human Rights Committee, considering the applicant’s communication (no. 747/1997) concerning the Hrubý Rohožec real estate at its seventy-third session, held that Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 of the Covenant, had been violated by the Czech Republic. It referred to its Views in cases nos. 516/1993 (Simunek et al.), 586/1994 (Josef Adam) and 857/1999 (Blažek et al.) that a legal requirement of citizenship for restitution of property previously confiscated by the authorities made an arbitrary - and consequently discriminatory - distinction between individuals who were equal victims of prior State confiscation, and constituted a violation of Article 26 of the Covenant. The Land Ownership Act regulates, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim. The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Under section 4(1), any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the period from 25 February 1948 to 1 January 1990, in one of the ways set out in section 6(1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is dead or reported missing without trace, the owner’s heirs or next of kin in a specified order (section 4(2)). By section 4(2) restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children and spouses, d) parents, or e) brothers and sisters or their spouses and children. As regards the procedure to be followed, section 9(1) provides that a rightful claimant must lodge his or her claim with the appropriate Land Office and, at the same time, request restitution from the person or entity concerned. This Act constitutes a lex specialis in relation to the Land Ownership Act. Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic and lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, and was loyal to the Czechoslovak State and reacquired (Czechoslovak) citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act. Section 2(3) provides that if such an entitled person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children. Section 11a provides that a person who satisfied the requirements set out in this Act on 29 May 1992 could file a restitution claim until 31 December 1992. His or her right lapsed if a claim was not lodged within this time-limit. Under section 2(2), amending section 2(3) of the Restitution Act, any natural person satisfying the condition of section 2(1) of the latter can claim restitution provided that he or she was a Czech citizen on 31 January 1996 and acquired Czech citizenship either pursuant to Acts nos. 245/1948, 194/1949 or 34/1953, or pursuant to Presidential Decree no. 33/1945, and who did not lose Czech citizenship before 1 January 1990. Article 547 provides for the concept of hereditas iacens, which exists from the time of the deceased’s death to the time when an heir accepts the estate. The principle of hereditas iacens is that, during this period, an estate is considered to be notionally owned by the deceased. By Article 819, a person who has been declared an heir by a decision of a court of law on his or her application, and who has fulfilled his or her obligations, receives the estate, thus closing the inheritance proceedings. The Civil Code 1811 was repealed at the end of 1950, whereupon the legal concept of hereditas iacens ceased to be valid in Czechoslovakia. The decree provides for expropriation, with immediate effect and without compensation, of agricultural property for the purposes of programmed land reform. It concerns agricultural property, including buildings and movable goods, owned by persons of German and Hungarian origin irrespective of their citizenship status. For the purposes of the land reform, section 1(1) provides, with immediate effect and without compensation, that the property of the following persons shall be confiscated: a) persons of German and Hungarian origin irrespective of their citizenship, and b) traitors and enemies of the State. Section 1(2) provides that the property of persons of German and Hungarian origin who were active in the battle for the liberation of Czechoslovakia is eligible for exemption from confiscation. Section 1(3) provides that decisions as to whether the property referred to in section 1(2) is exempt from confiscation shall be taken by the District National Committees. Section 2(1) defines persons of German or Hungarian origin as being those who, in any census after 1929, declared themselves to be of German or Hungarian origin, or who became members of national groups, formations or political parties made up of persons of German or Hungarian origin. By section 1 (1), Czechoslovak citizens of German or Hungarian origin lost their Czechoslovak citizenship on the day when they acquired German or Hungarian citizenship pursuant to the legislation enacted by the occupying power. Section 1(2) provided that other Czechoslovak citizens of German or Hungarian origin lost their Czechoslovak citizenship on the day when the decree came into effect. By section 1 (3), the decree was not applicable to Germans and Hungarians who applied for registration as Czechs or Slovaks during the German occupation. By section 2 (1), the Czechoslovak citizenship of the persons referred to in section 1 of this Decree was retained, provided that they prove that they had been loyal to the Czechoslovak State and active in the battle for its liberation, or had suffered under Nazi or fascist terror, and that they had not done any wrong to the Czech and Slovak nations. Section 2(2) provided that applications to retain Czechoslovak citizenship were to be submitted to the District National Committee or to the appropriate embassy abroad within six months. Under section 3, persons who lost their Czechoslovak citizenship by virtue of section 1 of the Decree could claim its restoration by applying to the District National Committee or the appropriate embassy abroad. Persons who may be entitled to property falling under a “dormant” inheritance (hereditas iacens) can be a party to judicial or administrative proceedings.
| 0
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train
|
001-89575
|
ENG
|
AUT
|
CHAMBER
| 2,008
|
CASE OF KRONE VERLAG GMBH & CO KG v. AUSTRIA
| 4
|
Violation of Article 10 - Freedom of expression -{General}
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
6. In 1996 the T association and another association founded the Techno-Z FH Forschungs- und Entwicklungs-GmbH (hereafter “Techno-Z FH”). This non-profit company was to promote and offer scientific support to the development of the information and communication society by conducting research projects and scientific studies in this field, by offering training, organising public presentations, editing publications and carrying out projects with other similar institutions. Techno-Z FH was sponsored by, inter alia,the Region of Salzburg. 7. In May 1999 Mr Dollhäubl, chairman of the T association at the time, was dismissed. The association held a press conference at the same time and praised the development of Techno-Z FH. 8. The applicant company subsequently published a series of articles about Mr Bruck, the managerial director of Techno-Z FH, in its daily newspaper Neue Kronenzeitung. 9. On 27 May 1999 the applicant company published an article headlined “Secret report discloses new scandal in Techno-Z!” (Geheimbericht enthüllt neuen Skandal um Techno-Z!) The relevant parts read as follows: (German original) „.[...] Ein streng geheimer Bericht deckt haarklein auf, wie locker es „Medienprofessor“ Peter A- Bruck in seiner Techno-Z-Firma bei Finanzen nahm! Bruck ist Geschäftsführer einer Techno-Z-Firma, und zwar der „FH Forschungs- und Entwicklungs-GmbH“. Und kassiert dort fürstlich wie ein bisher geheimgehaltener „Statusbericht“ über die Gesellschaft enthüllt. Bei der Kontrolle 1998 fielen die Prüfer fast vom Hocker. Bruck hatte zu der Zeit keinen gültigen Dienstvertrag, laut altem Vertrag hätte er rund 72.000 S brutto verdient. Doch der „Medienprofessor“ ließ sich 80.000 S im Monat überweisen, dazu noch 10.000 S als „Prämienauszahlung“. Es konnte „nicht nachvollzogen werden“, mit welchem Recht sich Bruck die insgesamt 90.000 S monatlich genehmigte... Doch damit nicht genug: Auch die Reiselust ließ sich der Herr vom Techno -Z finanzieren. Allein für 1997 verrechnete er 392.170,24 S an Dienstreisen. Und für 1998 waren wieder 400.000 S für Brucks Dienstausflüge vorgesehen. Immerhin ein guter Tausender pro Tag... Und selbst damit war die finanzielle Gier noch nicht gestillt: Eine hohe sechsstellige Summe für „Tantiemen“ kam noch dazu, also eine Art Prämie. Bei einer Schulung für das Arbeitsmarktservice (AMS) ließ Bruck sich 142.000 S überweisen. Denn seine Firma hätte 247.090 S Gewinn gemacht. Falsch sagten die Prüfer. Es waren 200.000 S weniger. [...]” (Translation from German) „....a very secret report discloses in great detail how lax the “media professor” Aurelius Bruck was about the finances in his company Techno-Z! ... At the 1998 audit the auditors almost fell off their chair. Bruck had no valid employment contract at that time; according to his old contract, he would have earned a gross salary of approximately ATS 72,000. But the “media-professor” had transferred himself ATS 80,000 per month and a further “premium” of ATS 10,000. It was not possible to ascertain by which right Bruck was helping himself to a total of ATS 90,000 per month... But this was not enough: Bruck had also financed his wanderlust. For 1997 alone he charged ATS 392,170.24 for business trips. And for 1998 another ATS 400,000 were provided for Bruck’s business excursions. That’s a good thousand [schillings] per day...But even with this, [Bruck’s] financial avarice was not satisfied: a high six-figure sum for ‘royalties’, a kind of premium, was added. At a training workshop for the Labour Market Service Bruck had transferred himself ATS 142,000 as his company had made a profit of ATS 247,000. Wrong said the auditors. It was ATS 200,000 less. ...” 10. On 28 May 1999 the applicant company published another article headlined “Techno-Z: Scandal concerning media professor - bank disclosed trick- ... The business dealings of Mr Bruck.” (Techno-Z: Skandal um „Medienprofessor” – Bank deckte Trick auf – [...] – Die Geschäfte des Herrn Bruck). The relevant parts read as follows: (German original) „Die Geschäfte des Herrn Bruck Der Skandal rund um den sogenannten “Medienprofessor” Peter Aurelius Bruck am Salzburger Techno-Z wird immer ärger: Nicht nur bei Gehalt, Prämien und Dienstreisen langte Bruck voll zu. Ohne Genehmigung streckte er beim Firmenkonto den Überziehungsrahmen. Als die Bank das merkte, war die Hölle los! Die „Krone“ hat die seltsamen Geschäfte des Professors aufgedeckt. Ein Geheimbericht zeigt, wie locker es dieser Peter Aurelius Bruck mit Finanzen nahm: · Für sich selbst 90.000 S im Monat (Gehalt plus Prämien), dafür gab es weder Vertrag noch Beschluss. · Rund 400.000 S zahlt die Techno-Z-Firma jährlich für „Dienstreisen“ Brucks. · Dazu kassierte er jährlich eine hohe sechsstellige Summe an „Tantiemen“. Unberechtigt, wie die internen Prüfer nachwiesen. Doch damit nicht genug: Eigenmächtig ließ er auf Firmenkonten den Überziehungsrahmen von 2 auf weit über 3 Millionen S ausweiten. Ohne Genehmigung! Als die Bank auf die Ungereimtheit kam, holte sie unverzüglich für die letzten Auszahlungen, das ganze Geld zurück. Diese Zahlungen waren ja nicht gedeckt! Leidtragende waren die Mitarbeiter: Wegen Brucks Finanz-Tricks wurde 1998 einmal sogar ihr Gehalt einige Zeit nicht ausbezahlt! Übrigens: Einer der Kontrolleure, die diese unfaßbaren Zustände aufgedeckt haben, bekam aus Rache nicht einmal sein Honorar bezahlt... [...]” (Translation from German) „The scandal concerning the so-called ‘media-professor’ Peter Aurelius Bruck at the Salzburg Techno-Z gets worse and worse: not only with his salary, premiums and business trips did Bruck really help himself. Without authorisation he exceeded the credit line of the company’s bank account. When the bank noticed this all hell broke loose! The Krone has disclosed the most dubious business dealings on the part of the professor. A secret report shows how lax Aurelius Bruck was about the finances: he helped himself to ATS 90,000 per month (salary plus premium), there was neither a contract nor a decision authorising this. The Techno-Z company pays approximately ATS 400,000 yearly for B’s ‘business trips’. He also collected a yearly high six-figure for ‘royalties’. By the way, one of the auditors who disclosed this inconceivable state of affairs was not even paid his fees – out of revenge ...” 11. This article was followed by a further text in a small box which stated: (German original) „[...]Die Spesenritter und Abkassierer haben tatsächlich dem Ansehen Salzburgs als Zukunftsland schwer geschadet. Schausberger hat die Gefahr klar erkannt: Über der Grenze hat Bayerns Ministerpräsident Edmund Stoiber viele vorbildhafte Technologieparks eingerichtet. Wenn es um Merkwürdigkeiten geht, so taucht in Salzburg immer wieder der Name des sogenannten Medienexperten Peter Aurelius Bruck auf. Der umtriebige Professor hat einen Schutzpatron: Niemand geringeren als Landesvize Arno Gasteiger. Das beweist auch die Teilnehmerliste jenes Geheimtreffens, das Gasteiger im Techno-Z organisieren ließ (siehe Bericht). Da war zunächst das seltsame „Bürgernetz“, eine Bruck-Idee, für die locker Millionen an Steuer- & Stromgeld flott gemacht werden sollten, Kinder hätten damit Zugang zu den Internet-Pornoseiten der Sex-Industrie gehabt. [...]” (Translation from German) “... Expense account profiteers and rip-off merchants (Spesenritter und Abkassierer) have really damaged Salzburg’s reputation as Region of the Future ... Whenever the discussion turns to dubious affairs, the name of the so-called media expert Peter Aurelius Bruck crops up again and again in Salzburg .... First, there was the strange “citizen web”, one of Bruck’s ideas, for which millions of tax money was to be made readily available. had [With this idea] children would have had access to the pornographic sites of the internet sex industry ...” 12. On 29 May 1999 a further article entitled “Techno-Z: the second audit also shows shortcomings in Bruck’s company - How he deceived colleagues – The way Mister ‘Media Professor’ cheated” (Techno-Z: Auch zweite Prüfung zeigt arge Mangel in Brucks Firma – Wie er Mitarbeiter tauschte – So trickste der Herr „Medienprofessor”) stated: (German original) „Kein Ende im Skandal um den sogenannten “Medienprofessor” Peter Aurelius Bruck und seine Firma im Salzburger Techno-Z. Ein fettes Gehalt, satte Tantiemen und jährlich 400.000 S für Dienstreisen lässt sich der Herr Professor bezahlen. Auch ein zweites Prüfer-Team fand schwere Mängel in Brucks Firma! Die Finanzen in Brucks Firma waren abenteuerlich. Das belegt ein streng geheimer „Statusbericht“ in dem zwei Prüfer seine Geschäfte genau untersuchten. [...]” (Translation from German) “No end to the scandal concerning the so-called ‘media professor’ Peter Aurelius Bruck and his company in the Salzburg Techno-Z. Mister Professor has paid himself a big salary, big royalties and yearly ATS 400,000 business trips. A second team of auditors has also established serious shortcomings in Bruck’s company! The finances of Bruck’s company were adventurous. This is established by a very secret ‘status report’ in which two auditors examined his affairs thoroughly ...” 13. On 30 May 1999 an article entitled “Concerning ‘media professor’ Bruck - Auditor has been waiting for his money for a year - Techno-Z: Is a request for bankruptcy looming?” (Es geht um „Medienprofessor” Bruck – Prüfer wartet seit einem Jahr auf Geld – Techno-Z: Droht Konkursantrag?) stated: (German original) “Jetzt wird es eng für den “Medienprofessor” Peter Aurelius Bruck und seine Firma im Salzburger Techno-Z: Zwei Prüfer haben ja in penibler Kleinarbeit die Finanz-Tricks des Herrn durchleuchtet und arge Mängel entdeckt. Einer der Prüfer bekam noch immer kein Honorar. Er droht nun Konkursantrag gegen Bruck an! [...]” (Translation from German) “Now it’s getting tight for the ‘media professor’ Peter Aurelius Bruck and his company in the Salzburg Techno-Z: two auditors have x-rayed in fastidious detail the financial tricks of [this] gentleman and have discovered serious shortcomings. One of the auditors has not yet received his fees. He is now threatening to file a bankruptcy petition against Bruck! ...” 14. A further article of 5 June 1999 entitled “Report about ‘media professor’ earned ‘thanks and consternation’” (Bericht über „Medienprofessor” erntete „Dank und Entsetzen”) stated inter alia: (German original) “[...] Die Firma war so arg geführt, daß “umgehend” ein kaufmännischer Chef neben Bruck bestellt werden mußte, um “solides Rechnungswesen und eine entsprechende Finanzgebarung” zu garantieren! [...]” (Translation from German) “... The company was so badly managed that a commercial director had to be appointed ‘immediately’ in addition to Bruck to guarantee a solid accounting system and proper management of public finances ...” 15. Lastly, on 14 June 1999 an article entitled “Further storm about wayward affairs in the Techno-Z company” (Neuer Wirbel um eigenwillige Geschäfte in Techno-Z-Firma) stated (German original) “[...]In seiner Firma im Salzburger Techno-Z gönnt er sich ein sattes Monatsgehalt, fette Tantiemen und 400.000 S für Dienstreisen. Und jetzt werden eigenwillige Geschäfte ruchbar, weil Bruck in der Firma auch Verwandte beschäftigt. [...] Da verwundert es doch, dass der Herr Professor seine eigene Tochter mitarbeiten ließ. Noch dazu um einen etwas höheren Stundenlohn als andere Mitarbeiter der Firma...[...]” (Translation from German) “... In his company in the Salzburg Techno-Z he helps himself to a big salary, big royalties and ATS 400,000 per year for business trips. Wayward affairs are becoming known now as Bruck also employs relatives in the company ... In this context there is still astonishment that Mister Professor gave his own daughter a job. Moreover at a slightly higher salary than other employees in the company ...” 16. On 21 October 1999 Mr Bruck was dismissed from his post as managerial director. 17. Referring to the above statements, Mr Bruck instituted proceedings in the Vienna Regional Criminal Court (Landesgericht) under Sections 8a and 6 of the Media Act (Mediengesetz) claiming compensation and publication of the judgment. 18. The case was subsequently delegated to the Salzburg Regional Court, which held a hearing at which evidence was heard from Mr Bruck, the T association’s managerial director, its chairman and his deputy at the time of the events, the commercial director of Techno-Z FH at the time of the events, the four auditors in question and the journalist who had written the articles at issue. 19. On 6 April 2001 the Regional Court, sitting as a single judge, dismissed Mr Bruck’s claim. It found that the impugned statements consisted partly of value judgments with a sufficient factual basis and partly of true statements of fact. It noted that the auditors Mr Dollhäubl and Mr Kittl had established in a report of March 1998 serious shortcomings in the book-keeping and accounting system of Techno-Z FH. They found that there had been no composite book-keeping for the year 1997 and that this system did not correspond to the principles of proper bookkeeping under the Book-keeping Act (Rechnungslegungsgesetz). The management board of the T association had taken note of this report with thanks and consternation. Despite that report the financial status of the company had been unclear at the time because of missing data. The management board had subsequently decided to appoint a commercial director in addition to Mr Bruck in order to guarantee a solid accounting system and management of public finances. 20. A further report, by an external firm of business auditors commissioned by Mr Bruck, although more favourable, had also established shortcomings in the book-keeping and accounting system and had made recommendations for improvements. For instance, contrary to the company agreement, investments over a certain amount had been made without the authorisation of the company owners. Furthermore, a bank account for a certain project had been registered in Mr Bruck’s name. Therefore, the articles’ statement that Mr Bruck was lax about the finances of Techno-Z FH was true. 21. The court further noted that Mr Bruck’s former contract had expired at the end of December 1997 and, although the main features of a new contract had been discussed, there had been no agreement on its fundamental aspects. Therefore, at the time of the audit in March 1998 Mr Bruck did not actually have a valid employment contract and the payouts, although not considered as arbitrary and tolerated, had taken place without any legal basis. Mr Bruck had not contested the amount of the sums mentioned in relation to his salary and expenses for business trips. The notions “wanderlust” and “business excursions” and “financial avarice”, “expense account profiteer”, “rip-off merchant” and “so-called media expert” and the statement that the finances in the company were “adventurous” were permissible value judgments. The fact that Mr Bruck had wrongly calculated royalties had been proven by the audit report of Mr Dollhäubl and Mr Kittl. The statement that Mr Bruck had used financial tricks was therefore also true. Mr Bruck had in fact once exceeded the credit line of the company and had acknowledged that Mr Kittl had not been paid his fee. His argument that Mr Kittl had not been commissioned by Techno-Z FH was questionable and, in any event, did not exclude the possibility that another motive for the refusal to pay Mr Kittl had been revenge, which, moreover, appeared obvious in view of the consequences of his report. Mr Kittl had actually requested the opening of bankruptcy proceedings against Techno-Z FH. It was true that Mr Bruck’s idea of providing every household in Salzburg with free internet access would have allowed children to access pornographic sites. Mr Bruck had employed his daughter in his company at a slightly higher salary per hour than other employees. 22. The court noted, lastly, that the applicant company could rely on Article 10 of the Convention, particularly as there was substantial public interest in the subject matter because public funds were at stake. 23. On an appeal by Mr Bruck, the Linz Court of Appeal (Oberlandesgericht), having held a hearing and sitting as a bench of three judges, quashed that judgment on 25 July 2002. It found that the Regional Court had left essential evidence unconsidered and had given pseudo-reasons for its findings. In addition to the facts established by the Regional Court and referring to the statements of the witnesses made before that court, the Court of Appeal set out the following background to the case: 24. Mr Bruck was a former honorary professor at the Salzburg University and academic director of a technical college. In his function as managerial director of Techno-Z FH he had had responsibility, in particular, for acquiring research and development subsidies from national, European and international bodies in which task he was highly successful. The travel expenses for the corresponding business trips had never been challenged and appeared reasonable in the light of their development over the years and in relation to the travel expenses of the company’s other employees. 25. After Mr Bruck’s former contract had expired at the end of December 1997, he was able to base his salary claim on an oral agreement of 23 December 1997 which was recorded in a note for the file and provided for a base amount of 80,000 Austrian Shillings (ATS) and a premium depending on any surplus produced by the company, this to be paid as monthly instalments of ATS 10,000. The taking of a decision on Mr Bruck’s contract was repeatedly adjourned because no agreement on the concrete calculation of the company’s surplus could be reached. 26. While it was true that Mr Kittl and Mr Dollhäubl’s report of March 1998 established shortcomings in the accounting system, criticised the fact that Mr Bruck’s salary was paid without any underlying contract or decision and that royalties for the year 1996 had been wrongly calculated, that report appeared partial and subjective: Mr Kittl had previously praised the accountancy and organisation of Techno-Z FH. Furthermore, Mr Kittl and Mr Dollhäubl had been present when the basic agreement on Mr Bruck’s further contract had been reached on 23 December 1997. Lastly, Mr Kittl and Mr Dollhäubl had simply noted the lack of vouchers book-keeping in 1998 without questioning the reason for it, namely a computer crash as established by the subsequent audit by an external accounting firm. The report by that firm, commissioned by Mr Bruck, found that the accounting system and management of public finances corresponded to the average standard of a private institution and remarked critically that the company had not adapted its organisation structure to the rise of its business turnover fast enough. It did not confirm the serious shortcomings outlined in Mr Kittl and Mr Dollhäubl’s previous report. 27. The commercial director was in fact appointed to relieve Mr Bruck who was busy handling other accountancy matters. It was true that in April 1998 Mr Bruck had exceeded the company’s credit line; however, he handed in the corresponding authorisation a few days later and was absolved by the management board as he had demonstrated that the overdraft had been necessary. When drawing up a proposal for a “citizens’ web” in 1997, Mr Bruck had wished to create a local educational internet and not provide children with access to pornographic internet pages. Furthermore, there was a possibility of locking certain pages of the internet. 28. Mr Bruck had properly refused to pay Mr Kittl’s fees because it was the T association and not Techno-Z FH which had commissioned him. Mr Kittl’s subsequent request that bankruptcy proceedings be instituted against the company had been unsuccessful because he had not submitted any proof of the company’s insolvency. Mr Bruck had employed several trainees during the holidays, including his daughter, who had been paid between approximately seven and nine Euros (EUR) per hour, while other trainees had been paid EUR seven per hour and some EUR ten per hour. There was no indication of preferential treatment as the amount paid to Mr Bruck’s daughter corresponded to her skills and the activities she had carried out. 29. The court found that in its overall context the series of articles wrongly accused Mr Bruck of fraudulent conversion, unjustified enrichment and commercial ineptitude. The applicant company’s reporting did not comply with the standards of journalistic diligence as it had not carried out any fair and objective research and had not questioned Mr Bruck. As the majority of the reported events dated back more than a year the journalist concerned had been under no time pressure to research the true facts behind the case. Having regard to the gravity of the criticism levelled at Mr Bruck, who had meanwhile been dismissed in order to get the company and himself out of the applicant company’s firing line, the court ordered the applicant company to pay EUR 14,500 in compensation. 30. The applicant company subsequently filed a request for rectification of the transcript of the hearing before the Court of Appeal. It submitted that the transcript wrongly reported that the full file (including the transcripts of the examination of the evidence conducted before the Regional Court) had been read out. On 9 January 2003 the Court of Appeal granted this request and rectified the transcript to the effect that the full file had not been read out as, according to the statement of all members of the Court’s bench, the parties had waived their right to have the full file read out. 31. Section 6(1) 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. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature 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. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true.”
| 1
|
train
|
001-4666
|
ENG
|
DEU
|
ADMISSIBILITY
| 1,999
|
EBRAHIMZADEH MOGHADAM YAZDI v. GERMANY
| 4
|
Inadmissible
|
Matti Pellonpää
|
The applicant, born in 1964, is an Iranian national and lives in Hagen (Germany). In the proceedings before the Court he is represented by Mr K.-H. Bartens-Winter, a lawyer practising inWuppertal. On 3 May 1991 the applicant arrived in the Federal Republic of Germany. On 16 May 1991 he applied for asylum. In support of his request he submitted that, as a member of the People's Mujahedin movement, his father had been arrested and killed. The applicant further submitted that when distributing leaflets together with a friend, his friend had been arrested. Thereafter he himself had been arrested three times and detained for one to two days. His whole family, i.e. his mother and his three sisters, had fled from Iran. They had all been recognised as political refugees in Germany. On 30 October 1992 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the applicant’s request on the ground that his submissions were not credible and invited him to leave the German territory within one month. On 28 June 1994 the Arnsberg Administrative Court (Verwaltungsgericht) dismissed the action filed by the applicant against the refusal of asylum and his envisaged expulsion. On 21 December 1995 the applicant renewed his request to be granted asylum (Asylfolgeantrag). When interviewed on 6 February 1996 at the Federal Office for Refugees, the applicant repeated the statements he had made in the first asylum proceedings, adding some more details. He further submitted that in the meantime he had engaged in political activities in Germany in favour of the People's Mujahedin movement, such as distributing leaflets, organising information stands, taking part in demonstrations and working in the movement’s office in Bochum. The media, in particular television, had published information about these activities which thus came to the knowledge of the Iranian authorities. An Iranian witness called by the applicant stated, when also heard on 6 February 1996 before the Federal Office for Refugees, that he had met the applicant in the beginning of 1991 in front of the Teheran University near a bookshop with a third person called A. The latter had talked to the applicant and handed him a shoe box. According to the witness, he was not informed about the contents of the box for security reasons. The applicant did not remember A.’s first name, nor did the witness. On 1 March 1996 the Federal Office for Refugees dismissed the asylum request on the grounds that the applicant’s statements did not appear to be credible and that they were in contradiction with the statements made in the first proceedings and that his political activities in Germany were not important enough to establish a real and substantial fear of persecution in Iran. On 11 March 1996 the applicant filed an action with the Arnsberg Administrative Court. On 21 August 1998 the Arnsberg Administrative Court dismissed the applicant’s action. According to the court, there was no indication that the applicant was persecuted when he had left his country, nor was there a sufficient likelihood that he would be persecuted if he were to return to his country. His earlier and his new submissions concerning his arrests in Iran were unsubstantiated. Accordingly, there was no need to take further evidence in this respect. As to the statements of the Iranian witness concerning the circumstances of the meeting with the applicant in front of the Teheran University, the court observed that there were contradictions between the applicant’s and the witness’s declarations. Furthermore, the witness could not confirm that the applicant was involved in the People's Mujahedin movement, since he had met him only once. The court added that the applicant’s activities in Germany did not go beyond a mere presence at demonstrations and other events, and that they would not expose him to political persecution in Iran. Finally there was no reason to believe that the applicant would face persecution in Iran on the ground that he had requested asylum in Germany. On 13 October 1998 the Administrative Court of Appeal (Oberverwaltungsgericht) of the Land of North Rhine-Westphalia rejected the applicant’s request for leave to appeal (Antrag auf Zulassung der Berufung). In its decision it stated that the Administrative Court had correctly assessed the evidence and rejected the applicant’s requests to take further evidence in a convincing manner. The Administrative Court had not acted arbitrarily in concluding that the applicant’s submissions were unsubstantiated. On 19 February 1999 the Hagen Administrative Authorities informed the applicant that following the final decision in his asylum proceedings, his residence permit was no longer valid and invited him to submit two passport photographs for the purpose of a provisional residence permit (Duldung) to be issued for the period during which the expulsion order could not be implemented for legal or practical reasons. On 3 March 1999 the Parliament of the of the Land of North-Rhine Westphalia rejected a petition brought by the applicant on the ground that his submissions did not justify the granting of political asylum.
| 0
|
train
|
001-107083
|
ENG
|
HRV
|
CHAMBER
| 2,011
|
CASE OF ŠARIĆ AND OTHERS v. CROATIA
| 4
|
Violation of P1-1
|
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
|
4. The applicants’ personal details are listed in Annex I to this judgment. 5. The applicants were serviceman employed by the Ministry of Defence (Ministarstvo obrane Republike Hrvatske). In 1996, 1997 and 1998 the applicants occasionally participated in demining operations in the newly liberated territories in Croatia. 6. On the basis of the Decision of the Minister of Defence of 18 September 1995 (see “Relevant domestic law”, below), they were entitled to a special daily allowance for such work. 7. Since the allowances had not been paid to them, on 21 May 2002 each applicant brought a separate civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking payment of the unpaid allowances. 8. The State responded that their actions were time-barred because the three-year limitation period for employment-related claims had expired. 9. In reply, the applicants argued that on several occasions they had asked their commanding officer why the allowances had not been paid. Their commanding officer had made enquiries of his superior, who had then contacted the General Staff of the Croatian Armed Forces (Glavni stožer Oružanih snaga Republike Hrvatske). Eventually, the applicants had been informed through their commanding officer that their claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the State budget. Relying on that information, the applicants argued that the State had acknowledged the debt and that the running of the statutory limitation period had thus been interrupted. 10. On 12 and 14 December 2005 the Knin Municipal Court ruled in favour of the State and dismissed the applicants’ actions. It held that in accordance with the internal regulations of the Ministry of Defence the only person authorised to acknowledge the debt on behalf of the Ministry before the applicants had brought their actions had been the head of its Central Finance Department and his superiors. Therefore, the repeated declarations of the applicants’ commanding officer to the applicants, after making enquiries of his superiors up to the level of the General Staff of the Croatian Armed Forces, that their claims were not in dispute and that the allowances would be paid once funds had been allocated in the budget for that purpose, had not constituted acknowledgement of the debt capable of interrupting the running of the statutory limitation period. 11. On 3 and 10 April 2006 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicants’ appeals and upheld the first-instance judgments endorsing the reasons given therein. 12. The applicants’ subsequent constitutional complaints were dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) in the period between 18 September 2006 and 10 April 2008. The Constitutional Court’s decisions were served on the applicants’ representative on the dates indicated in Annex I to this judgment. 13. Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works (Odluka o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju, unpublished) of 18 September 1995 reads as follows: “1. Permanent and reserve members of the Armed Forces of the Republic of Croatia carrying out mining and demining works shall have the right to special daily allowances. 2. Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and the Amount of Compensation for Users Financed from the State Budget [that is, 123 Croatian kunas (HRK) at the time], and so from the time of departure to [carry out] mining and demining works, according to the following criteria: (a) the entire daily allowance for every twenty-four hours spent on mining and demining works, including periods of twelve to twenty-four hours [that is, between twelve and twenty-four hours]; (b) half the daily allowance for periods of eight to twelve hours. 3. The lists of persons entitled to special daily allowances, with details, shall be compiled by the commander at independent battalion level or higher, and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out, at the latest on the third day of the month in respect of the preceding month. 4. This Decision shall enter into force on the day of its adoption, and shall be applicable from 1 June 1995.” 14. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows: “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
| 0
|
train
|
001-68116
|
ENG
|
POL
|
CHAMBER
| 2,005
|
CASE OF KOLASINSKI v. POLAND
| 4
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Nicolas Bratza
|
8. The applicant, Henryk Kolasiński, is a Polish national who was born in 1927 and lives in Koszalin, Poland. 9. The applicant's wife died on 15 May 1990. On 2 October 1990 the Koszalin District Court (Sąd Rejonowy) declared that the applicant, his stepdaughter - J.K. - and her two grandsons were to inherit the estate. 10. On 28 December 1990 M.F., one of the grandsons, filed an application for distribution of the estate of the applicant's wife with the Koszalin District Court. He also applied to the court for dissolution of the joint matrimonial property of the applicant and his late wife. 11. On 4 December 1992 the court held the first hearing. 12. In a letter of 5 May 1993 the applicant requested the President of the Civil Division of the Koszalin District Court to expedite the proceedings. 13. On 5 November 1993 and 20 January 1994 the trial court held hearings. 14. On 17 February 1994 the District Court gave a final decision. The applicant appealed. On 5 July 1994 the Koszalin Regional Court (Sąd Wojewódzki) set aside the first-instance decision and remitted the case. 15. On 9 March and 18 May 1995 the court held hearings. At a hearing held on 29 June 1995 the court ordered that expert evidence be obtained. 16. On 24 November 1995 the applicant complained to the President of the Koszalin District Court about the slow conduct of the proceedings. On 21 February 1996 the President of the Koszalin Regional Court informed the applicant that his complaint about the delays in the proceedings was justified. 17. On 10 June 1996 the court held a hearing. 18. On 22 August 1996 the District Court gave a decision. On 30 September 1996 the applicant lodged an appeal with the Koszalin Regional Court. 19. On 11 February and 25 March 1997 the Regional Court held hearings. On 22 April 1997 the Koszalin Regional Court set aside the impugned decision and remitted the case. 20. On 11 September 1997 the court held a hearing. On 22 October 1997 the applicant again requested the President of the Koszalin District Court to expedite the proceedings. 21. At the hearing held on 4 December 1997 the parties settled their claims in respect of a number of movables. Subsequently, the court discontinued the proceedings in that respect. 22. On 19 February 1998 the applicant complained about the length of the proceedings to the Minister of Justice. 23. On 10 April 1998 the court held a hearing and ordered that expert evidence be obtained. 24. On 24 April 1998 the District Court gave a partial decision (postanowienie częściowe). On 24 May 1998 the District Court held a hearing. 25. On 25 May 1998 the Minister of Justice informed the applicant that the President of the Koszalin Regional Court would supervise the proceedings. The District Court held further hearings on 3 July, 7 and 28 August 1998. On 1 October 1998 an expert submitted his report to the court. 26. At the hearing held on 20 November 1998 the District Court gave a decision. On 15 January 1999 the applicant lodged an appeal with the Koszalin Regional Court. On 27 April 1999 the applicant complained to the Minister of Justice about a delay in the proceedings and the fact that his appeal of 15 January 1999 had not been transmitted to the Regional Court. 27. On 28 September 1999 the Regional Court held a hearing. The hearings listed for 12 and 26 October 1999 were adjourned. 28. On 4 November 1999 the Regional Court upheld the firstinstance decision. On 15 March 2000 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). The proceedings were terminated by a decision of the Supreme Court of 23 April 2001.
| 1
|
train
|
001-5839
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,001
|
MAROTT HANSEN v. DENMARK
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant is a Danish national, born in 1975 and living in Skovlunde. He is represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The facts of the case, as submitted by the applicant, may be summarised as follows. By indictment of 29 October 1996 the applicant was charged with malicious damage in that, while walking on a road along with five other young men on their way to a discotheque an evening in July 1996, he had knocked his fist against the front window of an oncoming slow driving car with the result that the window cracked. At the first court session, held on 27 February 1997, the applicant was heard. Furthermore, the driver testified that she had seen the applicant very close up when the incident happened and therefore was able to identify him shortly afterwards at the discotheque and again in court. The applicant requested an adjournment of the trial in order to hear witnesses on his behalf, more specifically three of the above five men, henceforth called HK, CJ and CE. In the following court session HK testified that he had not seen any window crack and he could not remember if any of the men had discussed later who might have cracked it. The witnesses CJ and CE did not appear. It appears that GJ was not called and the applicant withdrew his request to hear CE. At the prosecution’s request a police officer who was present in the discotheque on the night when the driver had identified the applicant finally testified. By judgment of 21 August 1997 the City Court of Nykøbing Sj.(retten i Nykøbing Sj.) found the applicant guilty of the charges brought against him following an evaluation of the available evidence and sentenced him to pay a fine of 1,000 Danish kroner (DKK) . On 4 September 1997 the Leave to Appeal Board (Procesbevillingsnævnet) received an application from the applicant for leave to appeal, co-signed by CE, in which the applicant declared that CE was the perpetrator. Consequently, CE was provisionally charged with the offence and questioned by the police on 29 and 30 September 1997. According to the police reports CE stated that he could not remember any car or any cracked window, but the applicant had told him that he (CE) was the perpetrator. He refused to elaborate on the exact time when the applicant had told him so. According to a police report of 3 October 1997, CE told the police on the phone that he did not have time to read his previous statements and he did not care either. However, after the last interview he remembered, although he had been very drunk, that he did stretch his arm and thereby hit the car, but he could still not remember that the window cracked. The applicant was granted leave to appeal to the High Court of Eastern Denmark (Østre Landsret) on 17 December 1997. On 17 April 1998 the applicant’s appeal was scheduled to take place on 22 September 1998, and on 15 July 1998 a summons was served on CE to appear as a witness. On 17 September 1998 the applicant informed the High Court that CE was going to work in Holland for three weeks as from 20 September 1998, and therefore he requested an adjournment of the trial. A copy of CE’s work contract was enclosed. The High Court, however, proceeded with the trial as scheduled. The driver and a police officer gave testimony. As for the driver she confirmed her identification of the applicant as the perpetrator once more. As to the witnesses on the applicant’s behalf HK did not appear, since he was detained on remand in another case. Accordingly his statement during the City Court trial was read out during the High Court trial. As for CE his statements given to the Police on 29 September, 30 September and 3 October 1997 were read out during the trial. Having regard to the available evidence, including the above statements submitted by CE, the High Court did not find an adjournment necessary as requested by the applicant in order to hear CE in person. On the same day the High Court upheld the City Court’s judgment on the basis of the evidence as set out above. The applicant’s request for leave to appeal to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board on 26 October 1998.
| 0
|
train
|
001-22068
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,001
|
RAITA AND JALI RAITA CONSULTING OY v. FINLAND
| 4
|
Inadmissible
|
Georg Ress
|
The first applicant is a Finnish citizen, born in 1941 and resident in Turku. He owns and represents the limited liability company Jali Raita Consulting Oy (i.e. the second applicant). The respondent Government are represented by their Agent, Mr Arto Kosonen, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant company brought civil proceedings for damages against a another company. On 12 July 1995 the District Court (käräjäoikeus, tingsrätten) of Helsinki ordered the defendant to pay certain damages and dismissed the remainder of the action. Both parties appealed. On 29 February 1996 the Court of Appeal (hovioikeus, hovrätten) of Helsinki quashed the District Court’s judgment and dismissed the whole of the applicant company's action. The panel of three judges examining the appeal comprised, among others, Judge T., an extraordinary judge on leave of absence from his permanent post as law clerk (référendaire; esittelijä, föredragande) in the Supreme Court (korkein oikeus, högsta domstolen). In the case in point, T. was responsible for checking any amendments to the draft judgment which the Court of Appeal’s law clerk in charge had presented for the panel’s deliberations. According to the case-file, T. had checked the draft judgment on 22 February 1996, whereas he had returned to his post at the Supreme Court with effect from 1 January 1996. On 12 March 1996 the applicant company requested the Court of Appeal to complete its judgment in respect of one claim allegedly left without examination. On 4 April 1996 the Court of Appeal dismissed this request. The company was subsequently informed of Judge T.’s return to the Supreme Court. In June 1996 the company sought leave to appeal to that court and also lodged a procedural complaint (kantelu tuomiovirheen perusteella, klagan på grund av domvilla), arguing, inter alia, that as from 1 January 1996 the Court of Appeal had not been constituted according to the law (tuomionvoipa, domför) in the case in question. On 14 January 1997 the Supreme Court refused the company leave to appeal both against the Court of Appeal’s judgment of 29 February 1996 and its decision of 4 April 1996. The Supreme Court dismissed the procedural complaint, noting that the deliberations on the company’s appeal to the Court of Appeal had taken place already on 25 October 1995. The tasks which Judge T. had accomplished up to the delivery of the judgment had consisted of ordinary follow-up measures in accordance with established practice. The Court of Appeal had thus been constituted according to the law despite his having left that tribunal with effect from 1 January 1996. In the Finnish court system a law clerk prepares the draft decisions and judgments of the courts of appeal and the Supreme Court but cannot take part in any vote. He or she may annex a dissenting opinion, should his or her proposal not be followed. According to chapter 2, section 8 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk), the quorum of a court of appeal shall comprise three judges in order for it to be constituted in accordance with the law. According to Rules 19-20 of the 1994 Rules of Procedure of the Helsinki Court of Appeal, a judge may, after the competent panel has deliberated on the law clerk’s proposal, propose necessary amendments to the draft judgment. The revised draft is then circulated among the judges for approval. On such approval, the judgment is prepared for delivery in its final wording. If the Presiding Judge considers that a proposed amendment would change the substance of the judgment or if a judge has changed his or her opinion, the matter shall, whenever deemed necessary, be subject to a second deliberation. In a precedent of 30 December 1996 (no. 1996:153) the Supreme Court held that a former justice could, after taking up his post as Parliamentary Ombudsman, check a draft judgment and carry out other measures in a case deliberated upon prior to his departure. Nor had his departure endangered his independence and impartiality in the case in question. In another precedent of the same day (no. 1996:152) the Supreme Court held that a court of appeal judge had become biased after he had checked and signed the original judgment but before it had been delivered.
| 0
|
train
|
001-119967
|
ENG
|
SRB
|
COMMITTEE
| 2,013
|
CASE OF ANĐELIĆ AND OTHERS v. SERBIA
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Helen Keller;Paulo Pinto De Albuquerque
|
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. All applicants were former employees of “LETEKS” u stečaju (the debtor), which was, at the relevant time, a company predominantly comprised of socially-owned capital. 7. Since the debtor failed to fulfil its contractual obligations towards employees, on unspecified date, the applicants instituted civil proceedings against it. 8. On 18 April 2008 the Municipal Court in Leskovac ordered the debtor to pay them: i. the salary arrears due between 1 July 2001 and 13 July 2003, plus interest; and ii. 376,520 Serbian Dinars (RSD) for their costs and expenses. 9. On 3 October 2010 this judgment became final. 10. In the period between 17 November 2008 and 16 December 2008 each applicant filed separate requests for the enforcement of the above judgment. 11. The Municipal Court in Leskovac ultimately accepted the applicants’ requests and issued the enforcement orders respectively. The essential information as to the enforcement proceedings in respect of each application are indicated in the Annex. 12. On 25 January 2011 the Commercial Court in Leskovac opened insolvency proceedings in respect of the debtor (St. 47/2010). 13. The applicants duly submitted their respective claims. 14. On an unspecified date the applicants’ claims based on the judgment of 18 April 2008 were recognised. 15. The insolvency proceedings against the debtor are still ongoing. 16. On 5 December 2006 the debtor was privatised. 17. On 8 April 2008 the contract for the sale of the debtor was annulled because the buyer in question had failed to fulfil his contractual obligations. 18. As of June 2008 the debtor has been comprised of predominantly State-owned capital. 19. On 31 October 2010, the applicants filed a constitutional appeal. 20. The case is still pending before the Constitutional Court. 21. Article 93 §§ 1 and 2 provides that “as of the day of institution of the insolvency proceedings” the debtor cannot simultaneously be subjected to a separate enforcement procedure. Any ongoing enforcement proceedings shall thus be stayed, while new enforcement proceedings cannot be instituted for as long as the insolvency proceedings are pending. 22. The reminder of the relevant domestic law is set out in the cases of R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008, §§ 71-76) and the case of Marinković v. Serbia (dec.), no. 5353/11, 29 January 2013.
| 1
|
train
|
001-88266
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,008
|
COUTANT v. FRANCE
| 3
|
Inadmissible
| null |
The applicant, Mrs Isabelle Coutant, is a French national who was born in 1953 and lives in Paris. She is a member of the Paris Bar. She was represented before the Court by Mr J.-L. Chalanset, a lawyer practising in Paris. The French Government (“the Government”) were represented by their agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The “Chalabi” trial, so named after one of the main defendants, Mohamed Chalabi, who was represented by the applicant, took place from 1 to 27 September 1998. In that case approximately 600 people, mainly of Algerian origin, had been arrested in so-called “Islamist” circles. Eventually, 138 people, including Mr Chalabi, were committed for trial in the Paris Criminal Court on charges of conspiring to commit acts of terrorism. The trial was held in a gymnasium at Fleury-Mérogis Prison, which was transformed into a courtroom for the occasion. The organisation of the trial triggered strong protests, from the Paris Bar, inter alia, against “the organisation of a mass trial apparently incompatible with respect for the rights of the defence”. Many lawyers decided to withdraw from the trial altogether. On 8 September 1998, on her client’s behalf, the applicant issued a press release, part of which was reproduced by the Agence France-Presse news agency in a report. The press release read as follows: “For Mohamed Chalabi Through what is happening in the new law court at Fleury-Mérogis Prison, the public are finally beginning to realise the infamy of the procedures used by the special sections of the French justice system under the pretext of fighting terrorism. Purely for the media and for political and demagogic reasons, many people have been branded terrorists whose political opinions differ from those of the powers that be. But above and beyond what some people are learning in the final, public phase of the court hearings, the public must be told what goes on in secret behind the scenes of the political police and the special judges of the 14th section, whose motto – “Terrorise the terrorists” – was coined by Charles Pasqua. At the same time, he declared “I will cover up any blunders”. The hunt was on and the so-called war on terror had a free hand to use terrorist measures against targets designated by those in power, for their own political interests or those of their foreign allies. Police raids, for example, using methods worthy of the Gestapo and the Militia, at all hours of the day and night, against whole families, including children, even planting incriminating evidence on them (like the documents the DST slipped into Kraouche’s briefcase). Not to mention brutality and torture during four days of police custody, under the supervision of judges from the special section. Or holding people in complete solitary confinement, for months or years at a time, without any concrete charges against them other than being “capable of ...”, practically without any court hearing, much less any confrontation with their accusers, who in France remain anonymous, and the courts consider that normal! And the trials themselves, a pure formality: the outcome is a foregone conclusion as the so-called terrorists are obviously a threat to public order; the volume of the case files shows how serious the accusations are, even if they contain nothing but charges fabricated by the investigating judges of the special section, in the form of questions designed to prompt replies that suit their theories. In the face of such Islamophobic feeling, people with Arab blood naturally take pride of place among the obvious targets, with the aggravating circumstance that they belong to the Muslim faith and are therefore presumed guilty of the offence of holding terrorist religious opinions. Mohamed Chalabi, a mujahid, believes only in the Tawhid, but he is entitled to demand justice, like the other victims of police and judicial terrorism. Mr Alain Marsaud, a founding member and former chief of the 14th special section, considers the groundswell of revolt against the terrorist methods used by his teams as “an insult to justice in our country”. More than an insult, the practices and the manipulation of the media by the special anti-terrorist sections of the police are a crime against public and individual freedoms. It is high time France put a stop to this infamy. Paris, 8 September 1998 Isabelle Coutant Peyre Barrister for Mohamed Chalabi” On 8 October 1998 the Minister of the Interior, considering some of these remarks defamatory vis-à-vis the national police, lodged a complaint with the Paris public prosecutor for public defamation of a public authority, relying on section 48 (1) of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”). The applicant alleged that as she, the accused, was a lawyer, and having regard to the exceptional circumstances of the trial in question, the courts should be broad in their interpretation of the immunity provided for in section 41 of the 1881 Act and allow her the benefit of it. She also argued that because of her profession it was her duty to denounce practices incompatible with the Convention and, that being so, that her press release had been issued in the context of the type of political debate and discussion of ideas accepted in the Court’s case-law. In a judgment of 2 May 2000, the Paris Criminal Court decided that the offending statements were not covered by the immunity provided for in section 41 of the 1881 Act and, stressing the defamatory nature of the applicant’s remarks vis-à-vis the national police, found her guilty of public defamation of a public authority, an offence provided for in and punishable under sections 29 (1), 30, 42, 43, 47 and 48 of that Act. The applicant was fined 30,000 French francs (FRF) (approximately 4,575 euros (EUR)) and ordered to pay the token sum of one franc to the Ministry of the Interior. The court also ordered the publication, in three newspapers of the civil party’s choice, of a statement announcing the applicant’s conviction. The court’s findings read as follows: “It is precisely because it is the lawyer’s duty, in exercising the rights of the defence, to denounce facts or a system in conflict with human rights publicly and forcefully, and because his function makes him particularly credible in the eyes of his fellow citizens, that a lawyer cannot afford, without proof or reservations, to voice extremely serious specific accusations against an administrative body – the National Police – essential to the democratic edifice, one of whose tasks is to protect people against terrorist activities; In the instant case, however, [the applicant] did not confine herself to a general criticism of the judicial and police institutions or even the functioning of the fight against terrorism, but in a specific set of proceedings, made extreme accusations against the police of allegedly odious and inhuman practices, without being able to produce a shred of evidence; that being so, her plea of good faith cannot be accepted and the offence with which she stands charged is established ...” The applicant appealed. In support of her appeal she relied, inter alia, on the legitimacy of the debate on the means used in the “fight against terrorism”, her duty as a lawyer “to speak out” and the principle of freedom of expression enshrined in Article 10 of the Convention. In a judgment of 21 June 2001, the Paris Court of Appeal upheld the judgment concerning the applicant’s guilt but reduced the fine to FRF 10,000 (about EUR 1,525). The court declared, inter alia: “Considering that denouncing the conditions of organisation of the trial of her client, Mohamed Chalabi, and others, and criticising the proceedings as a whole constituted a manifestly legitimate aim for [the applicant], a lawyer; she could perfectly well have fully attained that aim by developing arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; Considering that in making extremely serious and ignominious accusations, in a particularly offensive manner, against the police responsible for fighting terrorism, in making the worst kind of comparisons to stir up indignation, in deliberately casting aspersions on a whole body of public servants, [the applicant] deliberately expressed herself in partial and vindictive terms, without the slightest caution or moderation; she cannot be accorded the benefit of good faith.” The applicant lodged an appeal on points of law. In her pleadings she relied on Article 10 of the Convention, alleging, inter alia, that the impugned conviction had violated her freedom of expression. In a judgment delivered on 3 December 2002 the Court of Cassation dismissed the appeal. With regard to the applicant’s first submission, invoking the immunity provided for in section 41 (3) of the 1881 Act, it held that “as the impugned press release cannot be considered as a written document adduced before a court, the Court of Appeal applied the Law correctly”. Concerning her second submission, it declared: “Given that, in rejecting the defence submission based on the provisions of the Convention and denying the lawyer the benefit of good faith, the judges stated that while denouncing the conditions of organisation of the trial concerning her client and criticising the proceedings as a whole constituted a legitimate aim for [the applicant], she could also have developed arguments, even laced with harsh criticisms, without having to draw inconsiderate, insulting parallels; that the same judges considered that in making extremely serious and ignominious accusations against the police responsible for fighting terrorism, and making comparisons with the Gestapo and the Militia of the Vichy regime the lawyer deliberately expressed herself “in partial and vindictive terms”, without the slightest caution or moderation, casting aspersions on the whole police force; Given that in the light of those considerations the Court of Appeal justified its decision; First of all, when a lawyer does not have the benefit of the immunity provided for in section 41 of the Act of 29 July 1881, he is not absolved, when expressing himself on his client’s behalf, of the caution and circumspection necessary to the acceptance of the defence of good faith; And secondly, while freedom of expression is protected by Article 10.1 of the European Convention for the Protection of Human Rights, it may, by virtue of the second paragraph of Article 10, be subject to restrictions and penalties in the cases determined by the Act of 29 July 1881; that is the purpose of section 30 of that Act, which provides for a penalty necessary in a democratic society for the prevention of disorder and the protection of the reputation of the public authorities, in this case the national police;”. The relevant provisions of the Freedom of the Press Act of 29 July 1881, as amended, in force at the material time, read as follows: “It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be a punishable offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the impugned speeches, shouts, threats, written or printed matter, placards or posters.” “Defamation of the courts, the army, navy or air force, State institutions and public authorities by any of the means listed in section 23 shall be punishable by a term of imprisonment of one year and a fine of FRF 300,000 or one of those penalties only.” “Neither the accurate reporting in good faith of court proceedings nor statements made or documents produced before the courts shall give rise to proceedings for defamation, insult or contempt. However, the courts examining the merits of the case may order the withdrawal of the insulting, offensive or defamatory statements and order those responsible to pay damages. Acts of defamation alien to the case may, however, give rise to prosecution or to civil action by the parties when the court has left that course open and, in any event, to civil action by third parties.”
| 0
|
train
|
001-23524
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,003
|
NOVOTKA v. SLOVAKIA
| 3
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Tibor Novotka, is a Slovakian national, who was born in 1963 and lives in Pezinok. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant submits that on 8 August 1995 he waited for a visitor in front of a house in which his flat was situated. Two policemen approached him and asked for his citizen’s card (,,občiansky preukaz”). The applicant replied that the term citizen’s card used by the police was incorrect and that in accordance with Section 18(1) of the Police Corps Act they should have asked him for a document permitting his identification (,,doklad totožnosti”). The applicant further stated to the police that they should respect Section 9(1) of the Police Corps Act. The policemen informed the applicant that he would be brought (,,predvedený”) to a police station and called a police car. The applicant submits that prior to the arrival of the car he spoke with two neighbours one of whom had indicated to the policemen who the applicant was. The applicant was transported to a police station where he was searched and placed in a cell. He was released approximately one hour later after his identity had been checked. A police report established on the same day indicates that the police on duty spotted a man who moved among parked cars and then crossed the street at 6.15 p.m. As they considered his behaviour to be suspicious, the police decided to check his identity. The man informed the police that he was standing in front of the house in which he lived and that he had no document on him permitting to show his identity. He told the police that they had no right to control him and that he would file a complaint about them. The police then called a police car and informed the man that he would be brought to a police station in accordance with the Police Corps Act. Upon the arrival at the police station the man was searched for security reasons. According to the report, the police checked the applicant’s identity in the relevant register and released him on 7.10 p.m. On 7 February 1996 the applicant complained about the incident to the Bratislava City Prosecutor’s Office. He alleged, in particular, that the police had proceeded unlawfully, and that he had been subjected to degrading treatment in that he had been searched and placed in a cell. The applicant further expressed the view that his apprehension related to the fact that the Prime Minister had filed a criminal complaint against him in 1994. That criminal complaint concerned the alleged applicant’s attempt on the Prime Minister’s life. On 12 June 1996 the Inspection Department of the Police Corps dismissed the applicant’s complaint as being unsubstantiated. The letter stated that the policemen had committed no offence and that there was no reason for taking any further action on the applicant’s complaint. On 22 August 1996 the applicant filed a complaint with the Bratislava I District Prosecutor’s Office. On 21 October 1996 the latter sent the case back to the Inspection Department of the Police Corps with the instruction to carry out further investigation into the case. According to a police report, on 6 May 1997 a police officer asked eleven persons living in the same house, including the next door neighbour of the applicant, whether they knew the latter. No one admitted knowing the applicant. On 12 May 1997 the Inspection Department of the Police Corps informed the applicant that no criminal offence had been committed in the context of his transport to a police station on 8 August 1995, and that any minor offence which might have been committed on that occasion had become statute-barred. On 4 August 1997 a public prosecutor of the Bratislava I District Prosecutor’s Office dismissed the applicant’s complaint of 22 August 1996 on the ground that the applicant lacked standing to file it. The decision stated that the public prosecutor had nevertheless examined the facts of the case and concluded that the Inspection Department of the Police Corps had acted in accordance with the law. On 13 September 1997 the applicant challenged this conclusion before the Bratislava Regional Prosecutor’s Office. On 7 November 1997 the latter dismissed the complaint. The letter stated, with reference to the documents included in the case file, that two policemen had asked the applicant to prove his identity, on 8 August 1995 at 6.15 p.m., while he was standing in the street in front of the entry of a house. The public prosecutor further established that the applicant had refused to comply with the request and that he had indicated to the policemen that they had no right to do so. The policemen therefore transported the applicant to a police station with a view to establishing his identity. The public prosecutor’s letter further indicates that the police were entitled to check the applicant’s identity in accordance with Section 18(1) of the Police Corps Act, and that the two policemen did so as they considered that the applicant had moved in a suspicious manner in the vicinity of parked cars and because he wore torn jeans. As the applicant had refused to establish his identity, the policemen had brought him to a police station in accordance with Section 18(3) of the Police Corps Act. The applicant was released on the same day at 7.10 p.m., after his identity had been established. The public prosecutor further found unsubstantiated the applicant’s allegation that his neighbours had informed the two policemen who the applicant was. The public prosecutor’s letter of 7 November 1997 also indicates that the police subsequently contacted the applicant’s neighbours and that the latter denied knowing the applicant. As to the search of the applicant, it was in conformity with Section 22(1) of the Police Corps Act. There was no indication that there was a link between the applicant’s above apprehension and the activities of the Prime Minister or of the secret service as alleged by the applicant. On 5 December 1997 the applicant filed a complaint to the General Prosecutor’s Office. He alleged, inter alia, that he had been identified by a neighbour at the moment of his apprehension. The applicant further stated that he had thus offered assistance to the police with a view to establishing his identity. He requested that the neighbour be heard and maintained that his deprivation of liberty had been contrary to Article 5 of the Convention in that, in particular, the police had deprived him of liberty without any relevant legal ground. The complaint was transferred to the Regional Prosecutor’s Office which informed the applicant, on 18 December 1997, that his further submissions would not be dealt with unless they contained relevant new information. On 28 May 1998 the applicant filed a constitutional petition pursuant to Article 130 of the Constitution. He claimed that his constitutional right to freedom of movement and his rights under Article 5 of the Convention had been violated as a result of the above incident of 8 August 1995. The applicant proposed that the Constitutional Court hear two persons who had witnessed his apprehension on 8 August 1995. On 12 August 1998 the Constitutional Court dismissed the applicant’s complaint as being manifestly ill-founded. The relevant part of the decision states: “... the fact that the police availed themselves of their statutory right (Section 18 of the Police Corps Act of 1993) to ask a person to prove his identity where it is necessary for carrying out their statutory duties cannot result in a violation of Article 5 of the Convention.” Pursuant to Article 130(3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (,,podnet”) presented by any individual or a corporation claiming that their rights had been violated. According to its case-law under Article 130(3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights. It could neither grant damages to the person concerned nor quash the relevant decision or impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated. Under Section 2(1) and (3), the duties of the police comprise, inter alia, the protection of the security of persons and of property and identification of criminal offences and of minor offences as well as of their perpetrators. The police shall also take preventive action within the limits of their competence as defined by the Police Corps Act. Section 9 provides that the police shall act within the limits specified in the Police Corps Act when an offence or a minor offence is being committed or when there is a justified suspicion that an offence or a minor offence will be committed. Under Section 18(1), the police are entitled to ask a person to prove his or her identity by means of a relevant document (,,doklad totožnosti”) when it is necessary for the fulfilment of their duties under the Police Corps Act. Paragraph 3 of Section 18 provides that a person who refuses to prove his or her identity by means of a relevant document may be brought to the police premises with a view to establishing his or her identity. Pursuant to paragraph 4 of Section 18, the police are also entitled to proceed in accordance with Section 18(3) when the person concerned is unable to prove his or her identity by means of a relevant document, and when such a person is unable to reliably indicate his or her name, date of birth and place of residence despite the fact that he or she was given an opportunity to do so. The police shall assess whether an indication of the name, date of birth and place of residence of the person concerned is reliable in the light of the reasons for which the identity of such a person is to be checked. Paragraph 9 of Section 18 provides that the police shall draw up a report when a person is brought to their premises with a view to establishing his or her identity. Under Section 22(1) the police are entitled to check whether a person who is about to be brought to their premises or who was apprehended or arrested carries a weapon.
| 0
|
train
|
001-23121
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,003
|
KRONE VERLAG GmbH & CoKG and MEDIAPRINT ZEITUNGS- UND ZEITSCHRIFTENVERLAG GmbH & CoKG v. AUSTRIA
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicants, Krone Verlag GmbH & CoKG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & CoKG are the owner and publisher, respectively, of the daily newspaper “Neue Kronen Zeitung” with its seat in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 January 1997 the Neue Kronen Zeitung published an article, written under the pseudonym “Cato”, about the exhibition “War of annihilation. Crimes of the Wehrmacht 1941-1944” (“Wehrmachtsausstellung”), planned to be staged in Salzburg and contested in Austrian public opinion. The article responded to a commentary by a professor of the Institute of History of the University Salzburg, published on 23 December 1996 in the opinion column of the newspaper Salzburger Nachrichten, where the author had defended and promoted this exhibition and had criticised its opponents. The article of the Neue Kronen Zeitung with the head “Infected with lies...” (“Mit der Lüge infiziert...”) read as follows: “Contemporary history is infected with lies as a whore is with syphilis.” Who said that? You probably won’t guess: the great philosopher Schopenhauer. How right he is! And naturally the losers in a war are the first to suffer. This is evident at the so-called Wehrmacht Exhibition, in which most of the exhibits come from the Soviets, in other words from the Stalinist regime that – among numerous other crimes against its own people and other nations – committed the massacre at Katyn and attempted to lay the blame for it on the Wehrmacht. Well over 10,000 Poles were shot dead because they were regarded as anti-Communists. In a show trial sixteen German soldiers were sentenced to death and immediately executed, though they were completely innocent. Today documents exist which prove this beyond dispute. A Salzburg professor of contemporary history, Gerhard Botz – a Waldheim persecutor, of course, who lives on taxpayers’ money and is highly subsidised – praises this exhibition and attacks anyone who expresses any reservations. And who is helping him? The Salzburger Nachrichten, which gives him a whole page. Isn’t there a saying “If you are caught lying once, you are never believed...”? Well, anyone who has once lied so grossly, who has been guilty of such criminal falsification and who – to make the monstrous lie more credible – has sacrificed human lives deserves our utter contempt. What can have happened to this once so distinguished newspaper for it to side with the Katyn murderers and not believe former soldiers who experienced the suffering of war? Does the Salzburger Nachrichten believe that the fallen whose names appear on the war memorials of our cities, towns and villages were murderers? What an outrageous slur, on them and on those who managed to survive the hecatomb! Maybe those who smear our Second World War soldiers think that those who can still defend their wartime comrades and themselves are now only few in number anyway and that their numbers are declining. But sons, daughters and grandchildren will begin to feel the pain of their fathers’ scars. They won’t allow soldiers whose unavoidable destiny it was to fight a world war to be called murderers. The process of rehabilitation has perhaps already begun. One symptom among many: the falling circulation of newspapers that act as accomplices of ‘contemporary historians’ as characterised by Schopenhauer. Cato” Subsequently, the owner of the Salzburger Nachrichten filed a private prosecution against Mr Dichand, the editor of the Neue Kronen Zeitung, assuming him to be the author of the article written under the pseudonym “Cato”, on grounds of defamation (üble Nachrede) and insult (Beleidigung). At the same time the owner of the Salzburger Nachrichten requested compensation under the Media Act (Mediengesetz) and that the decision be published. On 10 June 1997 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) acquitted Mr Dichand and rejected the further claims. It found that it could not be established with sufficient certainty that the impugned article was written by the accused. Referring to this acquittal, the court also rejected the compensation claim and the request for publication of the judgment. It noted that the article in the Neue Kronen Zeitung was part of a political debate in the course of a journalistic controversy about the exhibition and the historical role of the Wehrmacht. Its value statements were based on true facts and did not overstep the limits of permissible criticism. This decision became final. Parallel to these proceedings, the owner of the Salzburger Nachrichten lodged injunction proceedings under section 1330 of the Civil Code (ABGB) and under the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb) against Mr Dichand and the applicant companies before the Salzburg Regional Court (Landesgericht), requesting that the applicant companies be prohibited from repeating the following statements: a) that the Salzburger Nachrichten approved the massacre at Katyn committed by the Soviets in the Second World War; b) that in its reporting it called murderers those fallen in the Second World War; c) that it smeared the soldiers of the Second World War; d) that it had diminished in quality as a newspaper; e) that its circulation had fallen; and f) that the Salzburger Nachrichten were accomplices of liars (meaning that contemporary historians would falsify history). It also requested a revocation of these allegations and that the decision be published. On 29 August 1997 the Salzburg Regional Court issued an injunction, by which it prohibited the applicant companies to repeat the impugned statements and ordered its publication. It noted in particular that the statements a), b) and d) constituted untrue statements of facts which fulfilled the civil offences under section 1330 § 2 of the Civil Code and under section 7 of the Unfair Competition Act. The statements c) and f) were value statements containing an unobjective and unnecessary disparagement of a competitor under section 1 of the Unfair Competition Act. Finally, the statement e) was based on true facts, which, taken in its context, fulfilled the civil offence under section 1 of the Unfair Competition Act. The court stated that the article at issue dealt with a political and ideological matter of public interest. In this respect, the criticism lodged against the Salzburger Nachrichten could be understood as criticism for having given a forum in its opinion column to an author who had disputable opinions. It had to be taken into account that commentaries in opinion columns were not necessarily in line with a newspaper’s point of view. Since the Neue Kronen Zeitung also criticised the general quality of the Salzburger Nachrichten and its circulation, which had no relevance whatsoever for the political topic at issue, the criticism lodged in the article had to be considered as having been made by the applicant companies with a competitive intention. The same applied to disparaging and untrue statements. Furthermore, in balancing the purely political statements, which aimed at contributing to a journalistic debate, with those, which were made with a competitive aim, the latter prevailed in the court’s opinion, in particular since the article ended with a disparaging statement. On 22 December 1997 the Linz Court of Appeal (Oberlandesgericht), on the applicant companies’ appeal, confirmed the lower court’s decision in part. It rejected the claim against Mr Dichand and ordered the applicant companies to refrain from publishing the following allegations: “a) that, in its reports on the Wehrmacht Exhibition, the Salzburger Nachrichten would side with the Katyn murderers and thus approve the massacre of 10,000 Poles at Katyn committed by the Soviet Army; b) that in its reports the Salzburger Nachrichten would call the fallen soldiers of the Second World War ‘murderers’; c) that in its reports the Salzburger Nachrichten would smear the soldiers of the Second World War; d) that the Salzburger Nachrichten would not report in the same quality as in the past and had thus lost in quality as a newspaper, and e) that the Salzburger Nachrichten were accomplices of liars.” The court found that a controversy between newspapers could contribute to form public opinion. This function would become less important if such controversy was conducted with a competitive intention and by the use of untrue and disparaging statements of facts. Since this was so in the present case, the competitor’s interest in the protection of its reputation outweighed the applicant companies’ right to freedom of expression. The court quashed the lower court’s injunction as regards the prohibition to repeat that the circulation of the Salzburger Nachrichten had fallen, finding that it constituted a true statement of fact. On 21 April 1998 the Supreme Court (Oberster Gerichtshof) dismissed the applicant companies’ extraordinary appeal on points of law as it did not raise any important issue of law and because the Court of Appeal’s judgment was in line with the Supreme Court’s case-law. It noted in particular that the criteria of section 7 of the Unfair Competition Act were fulfilled when statements of facts were published, inter alia, with a competitive intention. In this respect, the competitive intention had to be assumed when disparaging allegations about a competitor were made. A given statement constituted a statement of fact if its meaning, as understood by the recipient, was based on facts which were susceptible to proof. Section 1330 of the Austrian Civil Code provides as follows: "(1) Anybody who, due to defamation, suffered real damage or loss of profit, may claim compensation. (2) The same applies if anyone is disseminating facts which jeopardise someone’s reputation, gains 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. (...)" The relevant sections of the Unfair Competition Act read as follows: Section 1 "Any person who in the course of business commits, for the purposes of competition, acts contrary to honest practices, may be enjoined from further engaging in those acts and held liable for damages." Section 7 “(1) Any person who, for the purposes of competition, makes or propagates declarations of fact about another person’s company, about the owner or manager of a company, about the goods or services of another person, that are such as to damage the activities of the company or the credit of its owner, may be held liable for damages, if the truth of the declarations cannot be proved. The person damaged may also apply for an injunction against the making or propagation of such declarations and may claim a revocation and the publication thereof.”
| 0
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train
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001-57676
|
ENG
|
AUT
|
CHAMBER
| 1,991
|
CASE OF ASCH v. AUSTRIA
| 3
|
No violation of Art. 6-1+6-3-d
|
C. Russo;N. Valticos
|
8. Mr Johann Asch, an Austrian national, resides at Laaben in Austria. 9. In the night of 5 to 6 July 1985 a dispute broke out between him and the woman he lived with, Mrs J.L. She left the house and took refuge at her mother’s home. The following morning she consulted a doctor. He sent her the same day to the St Pölten hospital then transmitted to that establishment a certificate dated 9 July attesting that she was suffering from multiple bruising and headaches. A report drawn up by the hospital, dated 11 July, stated that she claimed to have been struck with a belt and that she had several bruises on her body and one on her head. 10. In the evening of 6 July Mrs J.L. reported the incident to the Brand-Laaben police (Gendarmerie). She alleged that the applicant had threatened to use violence on her if she did not get out immediately. As she had refused to obey, he had hit her with a belt on her back, on her arms and on her legs. Seeing him seize a rifle, she had tried to reason with him and then taken advantage of a moment of calm to escape. 11. The police officer who had taken down this statement, Officer B., informed the public prosecutor’s office of St Pölten by telephone the same evening; he was instructed by that office to file a report (anzeigen) concerning Mr Asch, but not to arrest him. 12. On the morning of 10 July Mrs J.L. went back to the Brand-Laaben police station to inform the relevant officers that she and the applicant had been reconciled and that she had returned to live with him on 7 July. She expressed her wish to withdraw her complaint. 13. Questioned at the police station in the evening, the applicant denied that he had ill-treated Mrs J.L. or threatened her with a rifle. She had, he claimed, only a scratch on her back; in addition, she had explained to him that she had lodged a complaint because she had been furious with him. 14. On 16 July 1985 the Brand-Laaben police sent a report on Mr Asch to the Neulengbach District Court. They substantially repeated the allegations made by Mrs J.L. and produced the medical certificate of 9 July, the hospital report of 11 July and the records of the statements of the applicant and his woman friend, of 6 and 10 July (see paragraphs 9-10 and 13 above). 15. On 7 August 1985 the St Pölten public prosecutor’s office committed the applicant for trial before the Regional Court (Kreisgericht) of that town on charges of intimidation (Nötigung, Article 105 of the Criminal Code) and causing actual bodily harm (Körperverletzung, Article 83). At the hearing on 15 November 1985 Mr Asch protested his innocence; according to him, Mrs J.L. had hurt herself in the night of 5 to 6 July when she struck the end of the bed. However, he admitted having attacked her and having pushed her away from him. 16. When questioned by the court, Mrs J.L. availed herself of her right to refuse to give evidence (see paragraph 20 below). Subsequently Officer B. testified; he recounted the statements that she had made before him on 6 July 1985 and told the court that she had appeared to him to have been scared. She had shown to him the bruises on her arm and the bandage which covered a part of her back. No further applications being made by the parties, the judge ordered the report of 16 July, the interview record of 6 July 1985 (see paragraphs 10-11 and 14 above) and an extract from Mr Asch’s criminal record to be read out. 17. On 15 November 1985 the court convicted Mr Asch of intimidation and causing actual bodily harm and sentenced him to a fine of 80 schillings per day for 180 days. On the basis of the statements made at the hearing by the accused and by Officer B., the police investigation and the other evidence before it, the court found the facts to be established as described by Mrs J.L. on 6 July. According to the judgment, they were corroborated by the doctor’s diagnosis. Moreover the evidence revealed Mr Asch’s irascible and unpredictable personality and thus made the version given by Mrs J.L. plausible. The court did not find credible the accused’s claims that she had deliberately falsely accused him. 18. The applicant appealed. He complained inter alia that the first-instance court had had the record of Mrs J.L.’s statements (see paragraphs 10-11 above) read out at the hearing, without having asked him to comment on this document or having questioned him or Mrs J.L. He also asked the appeal court to order an expert medical opinion and to effect a search of the premises, as, he contended, the first-instance court ought to have done. In his view, the fact that Mrs J.L. had withdrawn her complaint had deprived the prosecution brought against him of its legal basis. 19. On 19 March 1986 the Court of Appeal (Oberlandesgericht) of Vienna upheld the contested judgment. It ruled inter alia that, according to well-established case-law, Article 252 par. 2 of the Code of Criminal Procedure (see paragraph 21 below) required the court before which the proceedings were pending to have the statements made outside court by witnesses who had refused to appear in court read out at the hearing, when such statements related to important points. The Court of Appeal also held that Mr Asch had failed to give sufficient reasons for his request for an expert opinion, since he had provided no evidence casting doubt on the cause of the victim’s injuries. 20. Under Article 152 par. 1, sub-paragraph 1, of the Code of Criminal Procedure, the members of the accused’s family as referred to in Article 72 of the Criminal Code are exempted from giving evidence; they include cohabitees. 21. Paragraphs 2 and 3 of Article 252 of the Code of Criminal Procedure are worded as follows: "2. The records of on-the-spot inspections and police reports, as well as the accused’s criminal record and any other material documents or written evidence, shall be read out at the hearing, unless both parties agree to dispense with this proceeding. 3. After each such document has been read out, the accused shall be asked if he wishes to make any comments thereon."
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train
|
001-87644
|
ENG
|
HRV
|
CHAMBER
| 2,008
|
CASE OF X v. CROATIA
| 2
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Violation of Art. 8;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
4. The applicant was born in 1972 and lives in Zagreb. 5. On 15 December 1998 the S. Welfare Centre (Centar za socijalni rad S., “the Centre”) instituted proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) with a view to divesting the applicant of her capacity to act (to perform acts with legal effect; poslovna sposobnost). On 9 December 1998 the Centre temporarily appointed the applicant’s mother as her guardian so that she could represent her daughter in the above proceedings. The Centre based its request on the notice from the V. Psychiatric Hospital of 27 October 1998 in which it was stated that the applicant was suffering from schizophrenia. The relevant part of the notice read as follows: “[The applicant] has been recurrently treated at the V. Psychiatric Hospital, on the last occasion from 4 to 26 September this year, and diagnosed [as suffering from] schizophrenia (depressive disorder), after a suicide attempt. During the last few treatments [at the hospital] the patient had left the hospital of her own will. While being in a phase of exacerbation she returned [to the hospital] on several occasions, after swallowing a large quantity of pills. We are aware that the patient has had problems with her mother and also that she is occasionally inclined to take drugs. As regards the main disease (sch[izophrenia]), we have not observed productive psychotic symptoms for a long period, but her behaviour and functioning has lately been compromised with so called deficiency symptoms which impede a more structured therapeutic process to a significant degree. We consider that the above indicates the need to deprive the patient of her capacity to act...” 6. On 4 June 1999 the applicant was heard by the Municipal Court’s judge for the first time. The transcript of her statement reads as follows: “The [applicant] says that her problems started when she went to London where she felt lost and begun to consume pot [meaning marijuana]. Since then she’s been suffering from hallucinations which at that time seemed tolerable to her. After 4 years, in 1993, she returned to Zagreb where she started her treatment. She is presently receiving therapy. Her latest hospitalisation was in September last year. She is presently receiving Depot and Haldol. She sells environmentally-friendly carrier bags. She neither wishes to be placed under guardianship nor does she wish to have her mother as her guardian, for private reasons. She is presently two months pregnant and ever since she learned of this she has not taken any drugs. Most lately she has been taking pot but no heavy drugs. She is planning to terminate the pregnancy. She does not feel good on Haldol, she feels depressed and in particular it bothers her at work. She has finished elementary school but has never been employed. She went to London when she was seventeen with a group of people. She now lives in a flat owned by her mother. She lives alone since her mother lives with her new husband. However, her mother is paying the bills and the rest she earns herself. It is true that she attempted suicide by [swallowing] pills, most recently in March last year. She is aware that she has been diagnosed with paranoid schizophrenia.” In view of the opinion given by the medical expert and the fact that the applicant was undergoing psychiatric treatment, the court stayed the proceedings. 7. On 25 December 1999 the applicant gave birth to a daughter, A. 8. In his letter to the Centre of 11 April 2000, a psychiatrist of the V. Psychiatric Hospital stated as follows: “... we consider it necessary that the proceedings for divesting the patient of her capacity to act be resumed because her behavioural disorder has become exacerbated lately owing to her uncontrolled intake of psychoactive substances by which she has endangered her own safety and in particular the safety of her child.” 9. On an unspecified date in 2000 the court resumed the proceedings and on 7 November 2000 paid a visit to the applicant’s home, in the presence of the applicant and her mother as her guardian, a judge conducting the proceedings and her secretary, a representative of the Centre and a psychiatrist. The relevant parts of the report of the visit read as follows: “The [applicant] in the company of her mother and child is met at the premises. The representative of the Centre states that a decision to place the child in foster care was issued and that the [applicant]’s mother was appointed as carer. The [applicant] states that she agrees to that as well as to being placed under guardianship in the best interests of her child since she is aware that she is unable to care for the child or for herself. However, she asks whether she can apply to have her capacity to act restored if her condition improves. In the meantime she has twice been admitted to hospital but does not see any results and does not know what to do with herself. From time to time she says that she might go back to London to earn some money. It is true that she has been taking drugs, though rarely and only pot and also larger quantities of Plivadon together with the prescribed therapy. In fact, she is not working, she is mostly at home caring for the child. Only after being asked by her mother and the representative of the Centre does she admit that she is still receiving company at home and that she gave some kitchen cupboards to Caritas because she did not like them (the mother says that she sold them). The father of the child, living in the same building, occasionally visits her and the child, but she has no committed relationship although two weeks ago she terminated another pregnancy. Although she expresses a wish to do any job, she admits that so far she has taken no steps to that end.” 10. The court also ordered a psychiatric assessment of the applicant’s mental condition. The assessment was carried out by the psychiatrist present at the visit to the applicant’s home. The conclusion of the report drawn up on 25 November 2000 read as follows: “... The patient suffers from a chronic mental illness with progressive tendency. Addiction to opiates has also been fixed and motivation for abstention is weak. Prognosis quoad sanationem is exceptionally unfavourable. The patient is unable to protect herself or her rights and interest and might endanger the rights and interests of others. I propose that she be entirely divested of the capacity to act.” 11. On 14 May 2001 the Zagreb Municipal Court divested the applicant of the capacity to act. The operative part of this decision reads as follows: “X ... is entirely divested of her capacity to act.” In its reasoning the Municipal Court summarised the findings of the applicant’s psychiatric assessment and concluded as follows: “... this court has established without doubt that the [applicant], owing to her mental illness and addiction to opiates, is not able to care for her personal needs, rights and interest, and therefore also endangers the rights and interests of others. Accordingly, she has to be entirely divested of her capacity to act under section 182 of the Family Act.” The applicant did not appeal against that decision, and it became final on 8 October 2001. An ex lege consequence was that the applicant was also deprived of her parental rights although the decision to divest the applicant of her capacity to act did not state it expressly. The court appointed her mother as her guardian. Following a request made by the applicant’s mother, on 27 December 2001 the applicant was placed under the guardianship of N.J., an employee at the Centre. 12. On 16 February 2004 the applicant applied to the Zagreb Municipal Court in order to have her capacity to act restored. On 23 April 2004 the court asked the V. Psychiatric Hospital to make an assessment of the applicant’s mental condition. The relevant parts of the report drawn up by a different psychiatrist on 8 September 2004 read as follows: “... Psychiatric expertise in this case commenced in June this year when the patient answered the Centre’s invitation. However, during the first interview she showed transparent psychosis with delusional elements and disjointed breathless speech, and when an attempt was made to carry out a urine test for psychoactive substances the patient did not appear at the interview scheduled for the next day. ... The second interview was held on 2 September at the time of her hospitalisation in the V. Psychiatric Hospital, unrelated to these proceedings, and being the result of the evident exacerbation and bad condition of the main illness. The patient was hospitalised on 21 August 2004. During the present interview, despite the therapy administered, just the same as during the interview held in June, she manifests florid psychosis with all elements of schizophrenic psychosis. Paranoid manic ideas, relational delusions as well as delusions of persecution and bizarre manic ideas are dominant. Her interpretation of reality, of herself and others is completely distorted. [The patient] represents a typical phenomenon of derealisation and depersonalisation. Her emotions are engaged only with regard to her manic perception; otherwise she is emotionally cold and aloof. Emotional resonance is lacking during the interview. Her overall behaviour has a manic quality. There is no doubt that her everyday functioning is also determined by the above-described psychopathological perception. ... In my opinion the problems associated with the intake of addictive substances, those being cannabis, are at the time being of secondary importance. She took other psychoactive substances only experimentally and occasionally and her psychotic picture, clinically manifested for a long time, cannot be associated with it. However, it is clear that her previous intake of cannabis had a role in forming her behaviour, possibly even in inducing her psychotic behaviour and her overall clinical picture. In comparison to the previous psychiatric assessments, her psychopathology, that is to say her clinical picture of schizophrenic psychosis became more pronounced, delusions are now barely susceptible to any corrections, dislocation of the thought process is noticeable, emotional coldness and aloofness, loss of the reality test, utmost lack of critical insight towards herself. Owing to her psychopathological drives she is aggressive, hostile and paranoid towards others. In these circumstances I consider that the conditions for restoring the capacity to act to X do not exist. On the contrary, the psychopathological reasons which led to her being divested of the capacity to act are now even more conspicuous and more numerous. Owing to her mental disturbances (schizophrenia) the patient is still not able to look after her personal needs, rights and interests and moreover she is endangering the rights and interests of others. Therefore, I propose that the court maintain [its decision] that she be entirely divested of the capacity to act and placed under guardianship. ...” 13. At the hearing on 12 October 2004, the applicant objected to the above assessment and requested a new one. The second psychiatric assessment carried out by the Psychiatric Clinic of the Zagreb Medical School supported the first one. The relevant parts of the report drawn up by a psychiatrist, M.K., on 27 January 2005 read as follows: “... Mental status: conscious, uncertain about time, well oriented in space, auto and allopsychic orientation preserved. Contact is easily established, she answers questions without latency. Psychomotorically tense, worried about the outcome of the proceedings. Affected behaviour. Basic disposition slightly uneasy. Emotionally distant. Thought flow regular in its form, in content [includes] description of previous manic experiences and sensory delusions, currently without florid psychopathological deviations. [She] denies delusions and none are perceived. Her intellectual and mnestic capacities are devoid of strong deviations. Her will-instinct dynamism is preserved. She is neither aggressive nor suicidal. 4. Opinion The patient ... has been suffering for ten years from chronic mental illness, schizophrenic psychosis. In addition, as is commonly found with such an illness, she is also an addict, she has been consuming various opiates and even today her abstinence cannot be established with certainty. She has been hospitalised on more than ten occasions. The [medical] documentation and the information obtained from the patient both show that there was no single period of systematic clinical monitoring after her release from hospital or a sustained period of social functioning. Therefore, we can fully agree with the above assessment of our colleagues who gave their opinion of the patient’s mental health and agree that it is good for her not to have her capacity to act restored. There has been no improvement of her clinical picture or her social functioning in relation to the opinion expressed at the latest assessment, which is understandable given the nature of her disorder, i.e. chronic mental illness. 5. Conclusion [The applicant] is suffering form schizophrenic psychosis of paranoid disposition and in addition is still consuming opiates, which altogether indicates that the disorder, which is in any case chronic, has also been progressing and renders X incapable of taking care of her interests, rights and responsibilities, so that there is no ground for restoring her capacity to act, of which she has been divested since 2001.” 14. On 10 March 2005 the court, relying on the above psychiatric assessment, refused the applicant’s request to restore her capacity to act. The applicant did not appeal against that decision. 15. In a decision of 13 July 2000 the Centre placed the applicant’s child in foster care, relying on section 99(1) of the 1998 Family Act, and also appointed the applicant’s mother as a carer. The relevant operative parts of the decision read as follows: “1. A. (personal data of the child) has the right to foster care outside her own family – placement in the foster family of [maternal grandmother] ..., beginning from 13 July 2000. 2. ... 3. ... 4. Contacts between the child A. with her mother X shall be arranged in consultation with the foster carer and with her father R. every Tuesday and Thursday from 5 p.m. to 7 p.m. and every Sunday from 4. p.m. to 7. p.m. ...” The relevant part of the reasoning reads as follows: “... The following has been established in these proceedings: The child A. is registered with this Centre as having parents of asocial behaviour. She was born out of wedlock. Her mother X, born on 10 March 1972 is chronically ill, under treatment for mental problems and addiction. In 1998 proceedings with a view to divesting her of the capacity to act were instituted and her mother, [the child’s maternal grandmother], was appointed her temporary guardian. The proceedings are still pending. The father (his personal data) is a minor who has left school and is unemployed and a drug addict ... The quality of the parents’ relationship has significantly deteriorated lately, including frequent verbal and physical conflicts requiring police intervention. The parents have neglected the child. On 13 July 2000 the expert panel of this Centre decided to allow placement of the child A. in the foster family of ..., maternal grandmother, who has helped [the parents] both by providing care for the child and financially. Contacts [between the child and her parents] are [to be] arranged according to the agreement between the parents and the foster carer.” 16. In a decision of 22 November 2001 the Centre deprived the applicant of the right to live with her daughter, ordering that she be placed in SOS – Children’s Village L., in the care of one of their employees, M.V. The contacts between the child and her parents were to be arranged with the custodian and according to the House Rules of the above institution. The relevant part of the decision reads as follows: “The proceedings have been instituted by the Centre of its own motion. The interviews with the child’s mother, X, and maternal grandmother, ..., as well as an on-the-spot inspection and the relevant documents show the following facts: The S. Welfare Centre’s decision ... of 13 July 2000 ordered placement of the child A. under the foster care of her maternal grandmother ... since the child’s parents had been assessed as persons who, owing to their asocial behaviour and consumption of opiates, were not capable of caring for the child. In respect of the child’s mother, X, proceedings with a view to divesting her of the capacity to act were instituted owing to her mental problems and problems with addiction. She was divested of her capacity to act in a final judgment (no. ...) of 8 October 2001 on the ground that, owing to her disturbed mental state (schizophrenia) and addiction to opiates, she had been incapable of caring for her personal needs, rights and interests and was endangering the rights and interests of others ... Supervision of the child’s family circumstances, however, revealed that the child, although placed in her grandmother’s foster care, had continued to live in the same household with her mother, who had interfered with her upbringing and taken part in caring for the child, which the foster carer could not prevent ... The child’s mother had not allowed the foster carer to care for the child. She was often under the influence of opiates which made her behave in an aggressive and unpredictable manner. The child’s mother X admitted to consumption of opiates but considered that the child had not been at risk since, when feeling that she could not care for the child, she had been in the habit of taking the child to her paternal great-grandmother who then cared for the child since she, the mother, did not trust her own mother. She was aware of the overall situation and that the child’s surroundings were not beneficial for her but she blamed her mother and was looking for a solution (statement given on 8 November 2001). The child’s father is currently doing his military service and is therefore not in a position to care for the child. Bearing in mind the overall family circumstances, the expert panel for family protection considered that the current living conditions endangered the child and that her placement under the foster care of M.V. in Institution L. was urgent (the expert panel’s conclusion of 22 November 2001). The decision on [the child’s] contacts with [her] parents has been adopted in view of the mother’s opposition to the taking of the child and her placement in an institution as well as the child’s need for regular contacts with her parents, which contacts, having regard to the parents’ state of health, shall take place under expert supervision.” According to the applicant, she continued to visit her daughter on a regular basis. According to the Government, the applicant visited her daughter once in two months. 17. On 4 July 2003 the Centre placed the applicant’s child, A., under the guardianship of M.B. The relevant part of this decision reads as follows: “These proceedings have been instituted by the Centre of its own motion. The following has been established in the proceedings: - that A is a child without parental care since her father R. died on 16 April 2003 and her mother X was entirely divested of her capacity to act in the Zagreb Municipal Court’s decision ... of 8 October 2001; - that a social worker, Ms N.J., an employee of this Centre is currently a guardian of X ...; - that the child A. has been placed in Institution L.; - that [the Centre’s employees] paid a visit to L; -that a social worker, Ms M.B., an employee of L, was heard and agreed to be appointed as a guardian of A.; - that the prescribed conditions for her guardianship have been fulfilled.” 18. The above decision was not served on the applicant. In 2003 the Centre instituted proceedings for the adoption of A. of its own motion, without the applicant’s knowledge. On 21 August 2003 M.B., as A.’s guardian, gave her consent to the adoption. The Government submitted that on 25 August 2003 the applicant’s mother and the child’s paternal grandmother had been informed about the ongoing adoption proceedings. They also submitted that the applicant had been informed thereof during a telephone conversation on 26 August 2003. 19. On 2 September 2003 the Centre issued a decision authorising the adoption of A. That decision became final on 11 September 2003. 20. Under the domestic legislation in force, the applicant, being a person divested of the capacity to act, was not a party to the adoption proceedings, nor was she informed that they had taken place. Only later did the applicant find out that her daughter had been given up for adoption. 21. The Family Act (Obiteljski zakon, Official Gazette no. 162/1998 of 22 December 1998), in so far as relevant, read as follows: “(1) Parental rights encompass protection of a child’s personal and economic interests and parental responsibility for his or her wellbeing. (2) Parental rights may be restricted or divested only by a decision of a competent body for the reasons and in the procedure prescribed under this Act.” “(1) Where parents do not live together a Social Welfare Centre shall designate the parent with whom the child shall live and arrange contacts between the child and the other parent except where this Act has placed such decisions within the jurisdiction of the courts. ... (5) In the case mentioned in paragraph (1), where both parents are incapable of caring for their child or are otherwise unable to do so or are putting the child’s wellbeing at risk by their acts a Social Welfare Centre shall place the child [under the care of] another person or an institution. (6) Where a Social Welfare Centre makes a decision under paragraph (5) it shall establish the duties and rights of each parent in respect of their care for the child.” “(1) Where parents incapable of caring for their child, owing to their absence or health or other grounds, have not placed the child under the care of a person fulfilling the conditions for a guardian, a Social Welfare Centre is empowered to place the child under the care of another person or an institution without the parents’ consent. (2) Placement or care of the child under paragraph (1) shall not exceed three months in duration.” “(1) A Social Welfare Centre shall deprive of the right to live with his or her child a parent who seriously neglects or puts at risk the upbringing and education of the child and shall place the child under the care of another person or an institution. ... (4) Deprivation of rights under paragraph (1) ... does not terminate other duties and rights of a parent in respect of his or her child.” “(1) Measures under [section 112] ... shall not exceed one year in duration. ...” “(1) A parent who abuses or gravely neglects parental duties and rights shall be divested of these rights by a decision of a court adopted in non-contentious proceedings. ...” “(1) An adult who, owing to mental damage or illness, addiction to opiates, senility (dementia) or on other grounds, is incapable of taking care of his or her personal needs, rights and interests or is endangering the rights and interests of others shall be partly or entirely divested of the capacity to act. ...” 22. The Family Act (Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows: “(1) Once adoption has been established parental custody [of the adopted child] shall cease. ...” “(1) Adoption may be established if it is in the interest of the child. ...” “(1) Adoption shall require the consent of both parents, except where otherwise provided. ...” “Adoption shall not require consent of a parent who is... 2. Divested of the capacity to act...” “(1) Adoption proceedings shall be carried out of its own motion by the competent welfare centre...” ... “(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.” “If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.” “(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease. ...” 23. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant reads as follows: 24. The European Convention on Adoption of Children of 24 April 1967, in so far as relevant, reads as follows: 1. “...an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; b. the consent of the spouse of the adopter. 2. The competent authority shall not: a. dispense with the consent of any person mentioned in paragraph 1 of this article, or b. overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law. 3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. ” 25. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows: “Principle 2 — Flexibility in legal response 1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations. [...] 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned. Principle 3 — Maximum reservation of capacity 1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. [...] Principle 6 — Proportionality 1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. [...] Principle 13 — Right to be heard in person The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity. Principle 14 — Duration review and appeal 1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. [...] 3. There should be adequate rights of appeal.”
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train
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001-103866
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ENG
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LVA
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CHAMBER
| 2,011
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CASE OF VISTINS AND PEREPJOLKINS v. LATVIA
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No violation of P1-1;No violation of Art. 14+P1-1
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Lech Garlicki;Luis López Guerra
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6. By contracts signed in 1994, in respect of donations inter vivos, the applicants became the owners of a number of plots of land on the island of Kundziņsala. This island, situated close to the mouth of the Daugava River, is part of the city of Riga, to which it is connected by a road-bridge and a railway line. It mainly consists of port facilities, with a small residential area in its southern part. 7. The donors were the heirs of the legitimate owners of the land in question, which had been unlawfully expropriated by the Soviet Union after 1940. They had recovered ownership in the context of the “denationalisation” process in the early 1990s. According to the applicants’ explanations, not contested by the Government, all the donations had been made in return for certain personal services that the applicants had rendered to the donors. Thus, the second applicant became the owner of four plots of land measuring 18,620, 11,000, 10,970 and 7,150 sq.m respectively. The donor of the first plot of land gave it to him by way of remuneration for having helped her to complete the formalities to obtain restitution of her nineteen properties located throughout Latvia. The donor of the second plot had apparently been a longstanding friend of the second applicant, whilst the other two plots were given to him as a token of gratitude because he had covered the cost of expensive heart surgery for the donor. As to the first applicant, he obtained a plot of land measuring 17,998 sq.m. in return for undisclosed services rendered. 8. Each of the above-mentioned contracts stipulated the value of the land in question. The parties agree that the said value was not the cadastral value (that is to say the reference value for the calculation of land tax), but merely an indicative sum solely for the purposes of calculating the registration tax, which at the time represented 10% of the property’s value. The contracting parties thus valued each plot of land at 500 Latvian lati (LVL; about 705 euros (EUR)), except for that of 10,970 sq.m., which was valued at LVL 1,000 (about EUR 1,410). In addition, the applicants paid LVL 0.25 in notary’s tax. However, they were not obliged to pay income tax, as gifts between individuals were not liable for such tax. 9. Shortly afterwards, in 1994, the Land Registry Division of the city of Riga (Rīgas pilsētas Zemesgrāmatu nodaļa) entered the applicants in the land register as owners of the plots of land in question. In addition, in accordance with the law applicable at the time (see paragraph 49 below), they were exempted from the payment of land tax (zemes nodoklis) for a period of six months following the acquisition, that is to say until the end of 1994. 10. On 15 August 1995 the Council of Ministers adopted Regulation no. 278 fixing the perimeter of the Port of Riga (Noteikumi par Rīgas ostas robežu noteikšanu). In accordance with that Regulation, all the plots of land owned by the applicants were included within the port’s perimeter. That inclusion was confirmed by the Free Commercial Port of Riga Act (Rīgas tirdzniecības brīvostas likums), enacted on 6 November 1996. Under that Act, all the privately-owned land situated within the port’s boundaries became subject to a servitude for the benefit of the public corporation responsible for the port’s management. In return, the corporation was to pay the owners an annual compensation of not more than 5% of the cadastral value of the plots of land. 11. In January 1996 the applicants requested the Real Estate Valuation Centre of the State Land Authority (Valsts Zemes dienesta Nekustamā īpašuma vērtēšanas centrs) to determine the current cadastral value of their respective plots of land. In five letters of 15 January 1996, the Centre certified that the value amounted to LVL 564,410 (about EUR 900,000) for Mr Vistiņš; as for Mr Perepjolkins, the cadastral value of his plots of land amounted to LVL 285,830, 767,724, 769,824 and 1,303,102 respectively, representing a total of LVL 3,126,480 (about EUR 5,010,000). 12. On 11 June 1997 the administration of the Free Commercial Port of Riga applied, in turn, to the Valuation Centre, requesting it to calculate the amount of compensation that would have to be paid to the applicants in the event of expropriation of their land, in accordance with Article 2 of the Supreme Council’s decision on the arrangements for the entry into force of the law on the expropriation of real estate in the public interest (the “General Expropriation Act”, enacted in 1923). That Article – which was applicable inter alia to the applicants – limited the amount of the compensation to be paid to the owners of certain land that was to be expropriated; the compensation would not exceed the cadastral value of the land as fixed on 22 July 1940, multiplied by a conversion coefficient. 13. On 12 June 1997 the Centre issued two certificates stating that the first applicant would receive LVL 548.26 (about EUR 850) for his 17,998 sq.m. of land, and the second LVL 8,616.87 (about EUR 13,500) for his land, of which the total surface area came to 47,740 sq.m. 14. By Regulation no. 273 of 5 August 1997, which was adopted in the context of delegated legislative authority (see paragraph 31 below) and which entered into force on 9 September 1997, the Council of Ministers ordered the expropriation of all the land in question for the benefit of the State. On 30 October 1997 that measure was confirmed by Parliament, which enacted a special law for that purpose (see paragraph 42 below). Under that law Mr Vistiņš and Mr Perepjolkins were to be paid compensation for the expropriation, which would be deemed completed once the sums had been paid into their current accounts. 15. On 8 May 1998 the Latvian Land and Mortgage Bank (Latvijas Hipotēku un zemes banka) opened current accounts in the names of each of the applicants. On 14 October 1998 that bank officially certified that the above-mentioned sums of LVL 548.26 and LVL 8,616.87, awarded to the applicants by way of compensation, had actually been paid into the two accounts. The applicants, however, refused to make use of those sums in any way. Following the payment, by two orders of 17 and 20 November 1998 the Riga Land Registry Court (zemesgrāmatu tiesnesis) ordered that the title to the expropriated land be registered in the name of the State. No tax was levied on the above-mentioned sums. 16. In 1998 the second applicant brought two sets of proceedings to obtain rent arrears for the use of his land. In the first proceedings, against the Riga Port Authority and the Free Commercial Port of Riga, he requested the payment of sums due under the lease for the period from 21 April 1994 to 31 March 1996. In a judgment of 15 October 1998, upheld in cassation proceedings on 6 January 1999, the Regional Court of Riga ordered the Free Port to pay the second applicant LVL 278,175 (about EUR 448,150) for the use of his land during the period in question. 17. The second applicant subsequently filed a new claim against the Free Port seeking the payment of rent arrears for the period after 1 April 1996, together with compensation for a servitude imposed on his property. On 18 March 1999 the Civil Division of the Supreme Court partly upheld his claim, awarding the applicant the sum of LVL 90,146.84 (about EUR 145,000 ) on that basis, as the rent represented 2% of the current cadastral value of the land. In fixing that amount the Civil Division particularly took into account the fact that the second applicant had not invested in any development of the land in question. It further indicated that the applicant’s title to the property had ceased on 9 September 1997, when the expropriation had become effective. In a judgment of 12 May 1999 the Senate of the Supreme Court upheld the judgment of the Civil Division. 18. The first applicant, Mr Vistiņš, brought similar proceedings. In a judgment of 9 June 1999 the Civil Division ordered the Free Port to pay him LVL 53,036 (about EUR 85,000) in rent arrears for the period from 1994 to 1997. 19. In January 1999 the applicants sued the Transport Ministry (Satiksmes ministrija) before the Regional Court of Riga. In their pleadings they requested the annulment of the cadastral registration of the State’s title, and the restoration, in the land registers, of the previous entries attesting to their ownership of the land in question. 20. In support of that claim, the applicants alleged that the General Expropriation Act provided for a uniform procedure: after the enactment of the special law of 30 October 1997, the Transport Ministry was required first to start negotiations with them with a view to reaching a friendly settlement as to the amount of the compensation (section 5 of the General Expropriation Act); if those negotiations failed, the Ministry would have to refer the matter to the court of competent jurisdiction for settlement of the dispute (section 9). That procedure had not been followed in the present case. The applicants particularly emphasised the fact that they were not satisfied about the sums paid by way of compensation and that they were deprived of their right to challenge those sums before a court. In this connection, the applicants pointed out that the orders of the Land Registry Court had been made in the absence of any prior final judgment concerning the amount of the compensation; they thus argued that the orders did not comply with section 18 of the General Expropriation Act. The applicants submitted that the expropriation in general and the transfer of title in particular had been carried out in breach of that Act, thus directly entailing a violation of Article 1 of Protocol No. 1. 21. In a judgment of 29 March 2000 the Regional Court dismissed the applicants’ claims. According to the judgment, the expropriation was not based on the General Expropriation Act, as the applicants had claimed: since the measure in question had been decreed in the context of the Latvian land reform, the special law of 30 October 1997 was to be applied. Section 4 of that special law provided for two elements – the law itself and the payment of the compensation – which, taken together, formed a statutory basis for the transfer of title to the State. As the corresponding sums had been paid into the applicants’ accounts, both of those elements were present, and by registering the State as the new owner of the land in question, the Land Registry Court had acted in accordance with the law. 22. Moreover, the Regional Court pointed out that section 3(1) of the Law of 30 October 1997 on the calculation of compensation referred to Article 2 of the Supreme Council’s decision on the arrangements for the entry into force of the General Expropriation Act; that decision had been declared compliant with Article 1 of Protocol No. 1 by the Constitutional Court. 23. The applicants appealed before the Civil Division of the Supreme Court. In their appeal, they emphasised at the outset that they did not object to the expropriation as such, provided that the statutory formalities were observed and the amount of the compensation was reasonable. This had not been the case, however; in particular, no expert’s report had been ordered for the purpose of determining the actual value of the disputed land (section 16 of the General Expropriation Act). The applicants did not challenge the Regional Court’s finding that the Law of 30 October 1997 constituted a lex specialis in relation to the general law; they argued, however, that the said law could not be interpreted as derogating from the normal expropriation procedure. Consequently, by recognising the State’s title without having received a copy of a judgment determining the amount of the compensation, the Land Registry Court had acted illegally. 24. In a judgment of 28 September 2000 the Civil Division dismissed the appeal, essentially endorsing the reasoning and findings of the judgment appealed against. Since the applicants had criticised the compensation awarded, it pointed out that the sums had been determined in accordance with Article 2 of the above-mentioned Supreme Council decision. If the applicants had considered that the calculation by the State’s Land Authority had been erroneous and that the relevant coefficients had been incorrectly applied, they could have challenged the calculation in separate proceedings, but had not done so. 25. The applicants lodged a cassation appeal before the Senate of the Supreme Court. In their appeal, they submitted that the direct and immediate object of their claim was not to challenge the calculation of the compensation as such, but rather the fact that they had not been able to have the sum fixed through fair judicial proceedings, as required by the General Expropriation Act. If such proceedings had taken place, they would have been able to provide the court with evidence of their investments in respect of the land in question. Moreover, the applicants pointed out that they were not entitled to initiate such proceedings themselves, as section 9 of that Act reserved that right for the authorities. 26. In a judgment of 20 December 2000 the Senate dismissed the applicant’s appeal on the same grounds as the Civil Division. 27. In the meantime, on 17 August 2000, the State had granted the use of all the plots of land in question to a private transport company, B., from which it has been receiving rent to date. 28. On 9 December 1999 the Finance Department of the Municipal Council of Riga notified the first applicant of a tax re-assessment, requesting him to pay the sum of LVL 18,891 in land tax in respect of the land in question, plus penalties, for the period from 1 January 1997 to 30 October 1997, the date of the expropriation. The first applicant challenged this before the Court of First Instance for the district of Ziemeļu, which upheld his claim and annulled the re-assessment. The Municipal Council appealed before the Regional Court of Riga, which, in a judgment of 10 January 2003, upheld the annulment of the re-assessment. According to that judgment, the land tax was attached to a plot of land and not to a specific individual; therefore, it could be paid by someone other than the owner. In that case, to the extent that it was the first applicant’s land, the tax had already been paid by the public corporation that was responsible for the port’s management and was using the land on the basis of a servitude. The Municipal Council lodged a cassation appeal with the Senate of the Supreme Court, which dismissed it in a judgment of 19 March 2003. 29. As to the second applicant, on 22 January 1999 the Finance Department of the Municipal Council of Riga notified him of a tax re-assessment for LVL 78,382, penalties included, for the year 1997. The applicant brought annulment proceedings before the court of competent jurisdiction, which upheld his claim. The Municipal Council appealed and on 26 February 2002 the Regional Court of Riga annulled the judgment of the Court of First Instance, finding that the second applicant’s land was not part of that for which the public corporation had paid land tax. That judgment was upheld at cassation level. However, in September 2003 the Senate of the Supreme Court re-opened the proceedings on account of newly discovered facts. The case file was sent to the Administrative Court of Appeal, which, in a judgment of 15 July 2005, upheld the second applicant’s claim and annulled the disputed re-assessment on the ground that the port management company had already paid land tax for the land in question. On 7 February 2006 the Senate of the Supreme Court, ruling on a cassation appeal, upheld that judgment. The second applicant was therefore not obliged to pay any supplementary tax on his land. 30. Article 105 of the Latvian Constitution (Satversme) provides as follows: “Everyone has a right of property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided by law. Forced deprivation of property for the need of society shall be authorised only in exceptional cases, on the basis of a special law and in return for fair compensation.” 31. Article 81 of the Constitution (repealed in 2007) entrusted the Council of Ministers with delegated and limited legislative power. At the time of the expropriation of the land in question, this provision read as follows: “Between two legislative sessions, the Council of Ministers shall be entitled, in cases of pressing need, to adopt regulations with statutory force. Such regulations may not amend either the law on parliamentary elections, the laws on judicial organisation and procedure, the Budget Act or budgetary law, or laws enacted by the sitting legislature; nor may they regulate amnesty, the issuance of Treasury bills, taxes levied by the State, Customs, railway fares and loans, and they lapse if they are not submitted to Parliament no later than three days after the opening of the following legislative session.” 32. The first paragraph of section 12 of the Law of 20 November 1991 on land reform in the cities of the Republic of Latvia (Likums “Par zemes reformu Latvijas Republikas pilsētās”) originally read as follows: “In all ... cases, where the original owner’s land has [in the meantime] been built upon, or where, in accordance with urban planning and construction projects it is intended to erect thereon constructions necessary to satisfy the needs of society, the former owners of the land or their heirs shall be entitled, as they choose: to claim restitution of their property title and to obtain from the owner of the building or construction ... the payment of rent, of which the maximum amount shall be fixed by the Council of Ministers ...; or to request that they be granted the right of ownership or use of another plot of land of the same value, situated within the administrative boundaries of the same town, depending on the type of use projected for the said land; or to receive compensation in accordance with the statutory conditions.” 33. A law of 31 March 1994 imposed restrictions on the restitution of land on which certain constructions or facilities have been erected. It thus amended the above-mentioned wording as follows: “Former property owners or their heirs shall recover their title to land that previously belonged to them, except: ... (3) Where, on the land of the former owners, there can be found ... facilities or infrastructures of civil engineering and transport ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned; as to the former owners and their heirs, they shall be entitled, as they choose, to request that they be granted title to another plot of land of the same value and situated within the administrative boundaries of the same town, or otherwise to receive compensation in accordance with the statutory conditions.” 34. A law of 24 November 1994 amended that provision as follows: “Former property owners or their heirs shall recover their title to land that previously belonged to them, except: ... (3) Where, on the land of the former owners, there can be found ... facilities or infrastructures of civil engineering and transport ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned, after the former owners or their heirs have, as they choose, and in accordance with the statutory conditions, received land of the same value situated elsewhere ... or [monetary] compensation. If it is impossible to reach an agreement with the former owner of the land, or his or her heir, as to the compensation or to the allocation of another plot of land of the same value, the land shall then be expropriated in accordance with the conditions laid down in the law on the expropriation of real estate on public interest grounds.” 35. The law of 12 October 1995 reformulated the above-mentioned provision, deleting the last sentence concerning the expropriation of land. The next law, which was enacted on 8 May 1997 and which entered into force on 6 June 1997, added to the said paragraph a note that read as follows (having the same statutory force as the provision itself): “Note: Where the former owners of the land or their heirs possess dwellings on the territory of a port, they are entitled to recovery title to that land to the extent that they have the lawful use thereof; [the surface area of such land] must not, however, exceed 1,200 square metres, except for the residential area of Kundziņsala Island which forms part of the territory of the Free Commercial Port of Riga and where the former owners and their heirs are granted restitution of their title in respect of the entire surface area of the land that belonged to them in the past.” 36. At the same time a new paragraph was inserted into section 12. It reads as follows: “Where the former owners of the land or their heirs have recovered title to land on which are erected any facilities referred to in point 3 of the first paragraph of the [present] section ..., the annual amount of the rent for the land shall not exceed five per cent of the land’s cadastral value”. 37. Section 19(5) of the Ports Act of 22 June 1994 (Likums par ostām) reads as follows: “Restrictions on the restitution of property title, as established by section 12 of the law on land reform in the cities of the Republic of Latvia, shall not apply to land incorporated within the territory of the Port de Riga after 20 April 1994 ... Former owners (or their heirs) who, as at 21 July 1940, possessed a plot of land situated on the current territory of the port, and whose title to the land has been recognised ... but has not been restituted on account of the statutory restrictions, shall be entitled to receive a plot of land of the same value or to be compensated in the form of property compensation certificates, in accordance with the legal instruments governing land reform.” 38. Regulation no. 171 of 6 May 1997 on the calculation of compensation to be awarded to former landowners and their heirs, and on the fixing of payments in respect of land of which ownership has been transferred in cities (Noteikumi par kompensācijas aprēķināšanu bijušajiem zemes īpašniekiem vai viņu mantiniekiem un maksas noteikšanu par īpašumā nodoto zemi pilsētās) was adopted on the basis of the law on land reform in the cities of the Republic of Latvia. Article 8 of the Regulation reads: “Where persons claiming compensation are not satisfied with the compensation amount calculated [by the State Land Authority], they shall be entitled to submit their complaint to the courts”. 39. At the material time, and up to 1 January 2011, measures of expropriation were governed by the Expropriation (Public Interest) Act (Likums “Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām”), which was first enacted in 1923 and which re-entered into force on 15 September 1992. The relevant sections of that Act read as follows: “Expropriation of real estate in the public interest shall be authorised only in exceptional cases, always with payment of compensation and on the basis of a special law.” “The proposal to expropriate ... shall be made by the government on the basis of an opinion by the relevant administrative body or local authority, where the institution in question is unable to acquire the real estate by means of an agreement with the owner. The proposal must include information about the real estate to be expropriated and the justification for the expropriation.” “After the [expropriation] law has been enacted, the institution that proposed the expropriation shall approach the owner with a view to entering into a [friendly] agreement for the transfer of the real estate, and, as the institution sees fit, shall either offer compensation or propose to exchange [the real estate] for property of the same value.” “Where compensation is determined by friendly agreement, or where the value of the expropriated real estate is compensated for by exchanging it for other property, the parties shall enter into a contract ...” “Where [the parties] fail to reach an agreement, the case shall be examined by a court upon an application by the institution concerned. After receiving the application, the court shall assign a bailiff to assess the value of the real estate, in the presence of the representative of the institution for whose needs the property is to be expropriated, together with the owner and three experts chosen by joint agreement between the parties ...” “The institution by which the expropriation has been proposed shall submit to the court a statement indicating and justifying its assessment of the value of the real estate to be expropriated. Copies of the statement shall be served on the owner of the real estate and to any mortgage creditors of the owner ...” “The value shall be assessed according to local prices and the specific circumstances of the relevant property. Should the owner so request, the assessment shall also take into account its profitability. The profitability of real estate shall be assessed on the basis of information supplied by its owner. In such cases, the price of the real estate is determined by adding five per cent to the average net income from the real estate over the past five years, or, where the owner has held it for less than five years, over the entire period of possession.” “Before examining the case, the court shall summon the owner, the representative of the authority having proposed the expropriation and any mortgage creditors. The court shall determine the compensation to be paid on the basis of experts’ opinions, either according to local prices or, where the owner so requests and the court finds such request reasonable, according to the profitability [of the property]. The court’s decision may be appealed against in accordance with the statutory procedure.” “After the court’s decision pertaining to the expropriation of the real estate takes effect, the owner shall be paid the compensation determined and any interest at the rate fixed by the court; the interest rate shall not be lower than 6% per annum from the date of transfer of the property until the date of payment.” “After the payment of compensation ..., the institution concerned shall transmit to the Land Registry Division a copy of the court’s decision together with a description of the real estate, for the purposes of its registration in the name of the State or local authority.” 40. The use of the term “a special law” in Article 105 of the Constitution and in section 1 of the 1923 Act indicates that each individual expropriation measure falls within the exclusive remit of the legislature, that is to say Parliament. As the Constitutional Court observed in its judgment of 16 December 2005, this is a specific feature of the Latvian legal system in comparison with that of other countries (see paragraph 48 below). In other words, there are always two legislative instruments: the general law, determining the rules of expropriation in general, and a special targeted law by which Parliament orders the expropriation of designated property in a specific case. As to the sum to be paid in compensation, it is fixed by friendly agreement or, failing that, by the courts (section 9 of the General Expropriation Act of 1923). 41. The relevant parts of Article 2 of the Supreme Council’s decision of 15 September 1992 on the conditions of the entry (or in reality, the re-entry) into force of the above-mentioned Act (Lēmums “Par Latvijas Republikas likuma ‘Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām’ spēkā stāšanās kārtību”), as inserted by the law of 19 December 1996, read as follows: “Where, in the course of the land reform, an expropriation ... concerns real estate that is necessary for ... the maintenance and operation of ... transport infrastructures, [and where the object of the expropriation] is or must be subject to restitution to the former owner (or to the heirs thereof), the amount of the compensation shall be determined as a sum of money, according to the statutory procedure; however, it shall not exceed the value of the said real estate as fixed by the land registers or by cadastral records drawn up before 22 July 1940 and including an indication of the property’s value. The conversion coefficients to be applied to the value of the property, [converting] the prices from 1938-1940 (in pre-war lati) into current prices ..., shall be determined by the State Land Authority. Where, after the restitution of title the owner has increased the value of the real estate, any investments related to the increase in value must also give rise to compensation. Similarly, compensation must be paid for any expenses reasonably incurred by the owner (heir) related to the restitution of the title (surveying, obtaining of information from records, etc.). Any expenses incurred in respect of the services of a representative must be restituted within the limits of the amounts actually paid; however, they must not exceed the scales of lawyers’ fees. The expropriation procedures laid down by the present Article shall apply also to owners who have acquired property from the former owner (or heirs thereof) by way of donation.” 42. Regulation no. 273 of 5 August 1997 on the expropriation of land for the needs of the State within the Free Commercial Port of Riga was promptly submitted to Parliament, as required by Article 81 of the Constitution as then in force. On 30 October 1997 Parliament enacted the law on expropriation for the needs of the State of land within the Free Commercial Port of Riga (Likums “Par zemes īpašuma atsavināšanu valsts vajadzībām Rīgas tirdzniecības brīvostas teritorijā”), which used almost the exact wording of the Regulation. The law reads as follows: “The expropriation, for the needs of the State, shall concern land within the territory of the Free Commercial Port of Riga, on Kundziņsala, along the bank of the Daugava, belonging to: (1) Mr Genādijs Perepjolkins: (a) for a surface area of 1.8620 hectares ..., (b) for a surface area of 1.1000 hectares ..., (c) for a surface area of 1.0970 hectares ..., (d) for a surface area of 0.7150 hectares ...; (2) Mr Jānis Vistiņš – for a surface area of 1.7998 hectares ...” “The Transport Ministry shall be responsible for having the land referred to in section 1 hereof ... entered in the land register in the name of the State, represented by the Transport Ministry.” “1o A current account shall be opened with the public corporation Latvijas Hipotēku un zemes banka [Latvian Land and Mortgage Bank] in the name of each of the landowners referred to in section 1 hereof; the compensation sums shall be paid into such accounts in accordance with Article 2 of the Supreme Council’s decision on the conditions of the entry into force of the Expropriation (Public Interest) Act. 2o The number of the current account shall be notified, by registered letter, to each of the beneficiaries of the compensation payment.” “The land referred to herein shall be entered in the land register in the name of the State on the basis of the present Act and having regard to the confirmation from the Latvijas Hipotēku un zemes banka that the sums determined as compensation for the value of the properties have [effectively] been paid into the accounts of the persons mentioned in section 1 hereof.” 43. The law of 5 February 1997 on the expropriation of land for the needs of the State within the territory of the “Riga” State airport corporation (Likums “Par zemes īpašumu atsavināšanu valsts vajadzībām valsts lidostu uzņēmuma ‘Rīga’ teritorijā”) is almost identical in structure to that of the law mentioned previously. Sections 1 and 2 order the expropriation of the specific plots of land enumerated in the annexes to the law. Section 3 requires the Transport Ministry to have the State’s title entered in the land register, while the last two sections concern the conditions of payment of the compensation and the effective transfer of title. 44. To the extent that it is relevant to the present case, section 6 of the law of 6 November 1996 on the Free Commercial Port of Riga (Rīgas tirdzniecības brīvostas likums) provided as follows: “(1) There shall be established hereby a personal servitude for the benefit of the public corporation ‘Commercial Port of Riga’, affecting the land of natural and legal persons ... that is occupied by the Free Port. ... (6) The user of the land shall pay to its owner compensation for the use of the servitude; the amount of that compensation shall be determined by joint agreement, but it may not exceed five per cent per annum of the cadastral value of the land.” ...” 45. On 9 March 2000 Parliament enacted a new law pertaining to the Free Port of Riga (Rīgas brīvostas likums). It entered into force on 11 April 2000, superseding the previous one. Section 4(8) of this new law is identical to section 6(6) of the previous law. 46. Under Article 994, first paragraph, of the Civil Code (Civillikums), “[o]nly the person who is recorded in the land register as owner of real estate shall be recognised as such”. However, Article 1477, second paragraph, stipulates that “[r]ights in rem based on a law shall be effective even in the absence of an entry in the land registers”. 47. In a judgment of 30 April 1998 given in case no. 09-02(98), the Constitutional Court declared Article 2 of the Supreme Court’s decision on the conditions of entry into force of the General Expropriation Act (paragraph 41 above) compliant with Article 1 of Protocol No. 1. It observed, in particular, as follows: “... 7. The second and fourth paragraphs of Article 2 of the decision do not deprive owners whose property has been expropriated in the public interest of their right to apply to the courts for a review of the determination of compensation. The second paragraph of Article 2 of the decision only establishes the upper limit of such compensation. Therefore, the argument ... that such persons are deprived of their right to judicial protection and to equality before the courts is unfounded. ...” 48. In a judgment of 16 December 2005, given in case no. 2005-12-0103, the Constitutional Court declared unconstitutional, null and void, the amendments to the General Expropriation Act in 2005. The relevant parts of that judgment read as follow: “... (22) ... (22-2) The fourth sentence of Article 105 of the Constitution provides that forced deprivation of property shall be allowed only in exceptional cases on the basis of a ‘special law’. Expropriation not only on the basis of a law but ‘on the basis of a special law’ is to a certain extent a specific feature of the Latvian Constitution. Most Constitutions of European States envisage only that expropriation must be carried out on the basis of a law or in accordance with a procedure established by law. The aim of Article 105 of the Constitution, pertaining to expropriation on the basis of a special law, is to protect the fundamental rights of the individual against any arbitrariness on the part of the administrative authorities. The word ‘specific’ here must not only be interpreted literally and grammatically, but must primarily be given a substantive meaning. When enacting such a ‘specific’‘exceptional case’ and whether it serves the needs of State or society; it must also ensure that the expropriation gives rise to fair compensation. ...” 49. Under section 9, first paragraph, of the law of 20 December 1990 on land tax (Likums “Par zemes nodokli”), as in force at the material time, a person acquiring land was exempt from the payment of land tax for six months from the date of acquisition.
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train
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001-79392
|
ENG
|
SWE
|
CHAMBER
| 2,007
|
CASE OF EVALDSSON AND OTHERS v. SWEDEN
| 2
|
Violation of P1-1;Not necessary to examine merits of remainder of complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
| null |
5. The applicants were born in 1948, 1974, 1965, 1964 and 1963 respectively. They were employed by the construction company LK Mässinteriör AB (hereinafter “the company”) between 3 March and 30 July 1999 on a time-wage basis. 6. The company, being a member of the Industries, was bound by a collective labour agreement, the Construction Agreement (Byggnads-avtalet), concluded between the Swedish Building Workers’ Union (Svenska Byggnadsarbetareförbundet, hereinafter “the Union”) and the Industries. The relevant local branch of the Union in the instant case was the Stockholm branch, Byggettan. 7. At the material time, eight employees in the company carried out work covered by the labour agreement. Three of these workers were members of the Union whereas the five applicants were not members of the Union or of any other trade union. 8. Under section 3, subsection f 5 of the collective agreement, as it stood at the relevant time, the local branch had the right to inspect on a continuous basis wage conditions by measuring piecework (ackordsarbete) and result work (resultatarbete), as well as monitoring time-based work (tidlönearbete). If inspections were carried out in accordance with the collective agreement, the local branch had the right to reimbursement of the costs involved on the basis of a fee of 1.5% of the worker’s wages. The employer was obliged to deduct this amount from the worker’s wages and to supply the local branch with the information necessary for the inspection work. 9. On 12 January 1978 the Industries and the Union concluded an accord pursuant to which a worker organised in a trade union other than the Union could request his or her employer not to deduct the inspection fee, with the result that the Union would no longer have the right to request either information or the payment of a fee in respect of that worker. In a subsequent dispute between the Industries and the Union over the interpretation of the accord, an out-of-court settlement was reached on 29 February 2000 to the effect that it applied to all workers belonging to a trade union other than the Union. 10. On 22 May 1991 the company and Byggettan concluded an agreement concerning the inspection work. The agreement gave details of the work and specified, inter alia, that it was the company’s responsibility to provide Byggettan with the wage information and to deduct fees from the wages of the workers and pay them to Byggettan six times a year. The information was to include the place of work, the names and social security numbers of the workers and the working hours and net wages. 11. The applicants requested to be exempt from the deductions, which in their case concerned fees for monitoring the wages for hourly work. The company complied with their requests, stopped paying the fees to Byggettan and did not provide it with the above-mentioned wage information concerning the applicants. Byggettan insisted on payment and initiated formal local negotiations. These were held on 23 March and 19 April 1999. However, no solution was reached, either in the local negotiations or in the subsequent central negotiations between the Industries and the Union. 12. The Industries eventually brought the case before the Labour Court (Arbetsdomstolen), seeking a declaratory judgment to the effect that the company was not obliged to levy the monitoring fees in question. It argued that the inspection of wages, in so far as it did not concern the technical measuring of piecework, aimed at securing the observance of the provisions of the collective labour agreement and was therefore part of the general activities of the Union. Moreover, the 1998 and 1999 annual reports of Byggettan allegedly showed that the inspection fees greatly exceeded the costs of the work and that the surplus was used for general union activities. Consequently, the corresponding deductions from the applicants’ wages were tantamount to forced union membership or, at least, involved an unacceptable compulsion to join the Union or another trade union. The conduct thus violated their negative freedom of association under Article 11 of the Convention as well as under domestic law. Furthermore, since the applicants did not share the political values of the Union, the levy on their wages also violated their rights under Article 10 of the Convention. 13. Two of the applicants, Mr Evaldsson and Mr Hodell, were heard by the Labour Court. They submitted that they opposed the deductions because they did not think that the monitoring work was of any use to them and considered the deductions an unnecessary expense. Allegedly, they also submitted that they felt that the deductions were unjust. 14. The Union disagreed with the Industries, arguing that the monitoring fees could not be seen as tantamount to forced membership of the Union, such membership being secured through the payment of a separate membership fee. The system of monitoring fees did not involve a compulsion to join a trade union. Moreover, the applicants had not expressed any ideological reasons for their unwillingness to contribute to the monitoring work. The Union claimed that, contrary to the Industries’ allegation, the 1998 and 1999 annual reports of Byggettan showed that the proceeds of that work had not contributed to general union activities but that, in fact, the monitoring had been run at a loss. Furthermore, the inspection work was strictly separated, economically and otherwise, from the other activities of Byggettan. Finally, arguing that the positive aspect of the freedom of association under Article 11 of the Convention was stronger than its negative counterpart, the Union claimed that a ban on the levying of monitoring fees on unorganised workers’ wages would violate the positive rights of its members, as this could induce members to leave the Union in order to avoid paying the fees. 15. By a judgment of 7 March 2001, the Labour Court rejected the Industries’ claims. It referred to several of its previous judgments concerning various types of measurement and monitoring fees. In a case from 1977 (AD 1977 nr 222), the court had found that the monitoring of time-based wages was wholly different from the measuring of piecework, as no special action had to be taken to establish the amount and type of work performed. Instead, the inspection of time-based wages rather aimed at securing the observance of the collective labour agreement and also served as a basis for the statistics used by the Union in wage negotiations with the employers. Consequently, the monitoring benefited the general union activities and the fees contributed financially to those activities. The court had therefore concluded that the levying of fees on the wages of members of the Syndicalist Union for monitoring work carried out by another trade union involved a violation of those worker’s positive freedom of association, as they would have to resign from their own organisation in order to avoid contributing to both organisations. The Labour Court stated that there was no reason to come to a different conclusion in the instant case as to the nature of the monitoring work. Thus, from the point of view of association law, there was no reason to distinguish between monitoring work and general union activities. Having reached that conclusion, the court found no reason to determine whether the monitoring fees generated a surplus which contributed to other union activities. However, the situation in the instant case was different from the 1977 case in that the applicants were not subjected to pressure to leave their organisation. Instead, the question was to what extent they were protected by a right to negative freedom of association. The Labour Court noted that the negative freedom of association under domestic law was exclusively based on the Convention. It referred to the European Court’s case-law and drew the conclusion that only the core of the negative freedom of association was protected under Article 11 of the Convention, meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of Article 11. The Labour Court initially concluded that the monitoring fee deductions did not entail membership of the Union and that no pressure had been exerted to compel the applicants to join the Union against their will. It further found that the fact that the applicants, through payment of the monitoring fee, indirectly supported the activities of the Union did not in itself amount to forced membership, since being a member of the Union also entailed certain other duties, such as loyalty to its objectives and payment of a membership fee. The situation would have been different if the applicants would to some extent have been associated with the Union’s ideology as a result of the monitoring fee deductions. However, the fee in issue was deducted in accordance with their employer’s obligations under the collective labour agreement, and it was, accordingly, difficult to see a link with the Union’s ideology. In this connection, the court also referred to the evidence given before it by Mr Evaldsson and Mr Hodell. While it questioned whether the grounds for their position in the case could have a bearing on their negative freedom of association, the court nevertheless found that there was no indication that they opposed the deduction of the fees because they took exception to union activities in general or to the ideology of the Union. The Labour Court went on to state that, while the applicants, through the fee deductions, contributed to the general activities of the Union, they were not treated any differently from Union members as concerns the monitoring. In order to monitor the observance of the collective labour agreement, the work was carried out with respect to all employees affected by the agreement, whether belonging to a trade union or not. Noting that it could appear offensive to an unorganised worker to have to contribute to the work, the court stated that it was not without importance that the unorganised worker in fact obtained something in return for the fee paid. The Labour Court further noted that, theoretically, the applicants could be inclined to join a trade union other than the Union in order to avoid the wage deduction for the monitoring fee. It found, however, that it was not very realistic that an employee would regard the wage deduction as a particular incentive to do so. The Labour Court concluded that all the above considerations indicated that the deductions did not breach the applicants’ rights under the Convention. As to the main issue to be determined – whether the monitoring fee was intended as a measure to pressure them to join the Union – the court could not find that it had any such coercive effect. As the fee was not tantamount to forced membership of the Union and had not influenced or forced the applicants to join the Union, the company had been obliged to make a deduction from their wages in accordance with the collective labour agreement. 16. Freedom of association is guaranteed in the Swedish constitution. Chapter 2, section 1 of the Instrument of Government (Regeringsformen) provides in its relevant parts: “In relation to the public administration, every citizen is guaranteed: 1. freedom of expression: the freedom to communicate information and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations or in any other way; ... 5. freedom of association: the freedom to unite with others for public or private purposes; ...” Chapter 2, section 2 protects, inter alia, the negative aspect of freedom of association. It reads: “In relation to the public administration, every citizen is protected against coercion to divulge an opinion in a political, religious, cultural or other such connection. In relation to the public administration, he is furthermore protected against coercion to participate in a meeting for the formation of opinion or in a demonstration or other manifestation of opinion, or to belong to a political association, religious congregation or other association for opinions referred to in the first sentence.” 17. Section 7 of the 1976 Act on Co-Determination at Work (Lag om medbestämmande i arbetslivet, SFS 1976:580, hereinafter “the 1976 Act”) guarantees the right of employers and employees to form, belong to and work for labour market organisations. The right of association is further protected by section 8, which forbids any recourse to action against someone on the opposing side for having exercised this right or in order not to exercise it. 18. Section 10 of the 1976 Act gives employers’ and employees’ organisations as well as individual employers a right of negotiation in regard to matters concerning the relationship between employers and employees. It does not provide for any right of negotiation for the individual employees, who are obliged to exercise their powers through the trade unions. 19. Under section 26 of the 1976 Act, a collective labour agreement is binding not only on the employer’s and employee’s organisations but also on their members, i.e. companies and individual workers. Moreover, in practice, the collective agreement is also of significance for employees who are not trade union members in that it has a normative effect. This entails that the individual work contracts are considered to have the same contents as the collective agreement unless the parties to the contract have expressly agreed otherwise. 20. Under section 27 of the 1976 Act, an employer and an employee cannot conclude a legally valid agreement which contradicts the collective agreement by which they are bound. This means that an agreement contradicting the collective agreement is automatically null and void. While contracts with less favourable conditions than the collective agreement are normally invalid, the validity of contracts with more favourable conditions depends on an interpretation of the agreement in question. As the instant provision formally only prohibits an employer from concluding contradictory contracts with members of the trade union which is party to the collective agreement, it is possible for the employer to conclude such contracts with employees who are not members of the relevant trade union. However, most collective agreements are based on the presumption that an employer does not have a right to conclude such contracts with non-member workers. Consequently, while the contracts in question remain valid, the employer may be liable to pay damages to the trade union. 21. Monitoring of wages for hourly work is conducted in a manner determined by the employer and the local union branch. It normally involves the examination of documents provided by the employer and personal visits by the union’s representatives to the employer. If a mistake is discovered, clarifications or corrections can be made by telephone or letter. In some cases, formal negotiations are required. 22. Under the terms of the Construction Agreement, the local union branch is entitled to a fee as compensation for the costs entailed by the monitoring work. The fee – 1.5% of the employee’s wages – is deducted by the employer from the wages of each individual worker. 23. According to the applicants, a member of the Union pays about 3,500 Swedish kronor (SEK) per year in monitoring fees in addition to the union membership fee of SEK 3,000. The largest competing trade union, the Syndicalist union, does not have a monitoring system. The Union therefore has a de facto monopoly in this field. 24. The regulation regarding the monitoring of wages was incorporated in the 1976 Construction Agreement. Previously, workers paid time-based wages had not been subjected to deductions for monitoring fees. According to the applicants, the purpose was that workers paid time-based wages, as an act of solidarity with workers carrying out piecework, should contribute to the whole inspection system. At the material time, the majority of the workers performed piecework, the measurement of which was costly and time-consuming. The fee for monitoring time-based wages was thus not primarily introduced as reimbursement for the service in question, but as a means of supporting the measurement of piecework wages. 25. Today, approximately 80% of workers are paid time-based wages, which is almost the opposite ratio compared to the situation in 1976. In general, the monitoring of wages is now computerised and based on information provided by the employer. 26. According to a statement of 24 May 2006 by Mr Lars-Göran Bromander, former division manager at Byggettan, a review of the still existing audit material for 1999 showed that, as a result of the monitoring work, wages had been adjusted upwards for 648 workers, of which 250 were not Union members. 27. The activities of Byggettan, the local union branch, are divided into two parts: branch activities (inter alia, wage negotiations, union agitation and political work) and business activities (i.e. the inspection work, comprised of the monitoring of time-based wages and the measurement of piecework). Branch or non-profit activities are to be paid for by means of union membership fees. Revenue from the business activities, which is subject to value-added tax, should cover the costs of such activities. 28. The parties have submitted various documents to the Court containing information on the revenue and cost of the activities of the Building Workers’ Union and the Byggettan branch. The following information has been compiled from these documents. 29. According to the annual report for 1998, Byggettan had 94 permanent employees (54 officials and 40 administrative personnel) on 31 December 1998. Before the Labour Court, the Building Workers’ Union stated that the number of persons involved in inspection work (monitoring and measuring) during the period relevant to the present case, March – July 1999, was the same as at the end of 1998, and that the 1998 annual report named 21 officials who had been occupied with this activity. However, the annual report only mentions, in addition to the head of the relevant department, 12 officials who were dealing with such work, one of whom had been doing so only until 26 March 1998. It thus appears that, during the relevant period, 12-13 officials were involved in inspection work, i.e. about 22-24% of the total number of officials. Incidentally, the annual report for 1999 indicates that, at the end of 1999, the total workforce of Byggettan remained the same. 30. Byggettan’s annual reports for 1997-2000 contain statements of accounts where its business activities, i.e. the inspection work, are separated from its branch activities. According to the statement of accounts for 1999, Byggettan’s branch activities showed a loss of SEK 10.3 million, whereas the inspection work recorded a profit of SEK 5 million. The total revenue from the inspection work amounted to SEK 30.9 million, the operational and administrative costs of this sector of activity were SEK 25.2 million and the write-offs of movables came to SEK 0.7 million. Whereas it is shown, in a footnote to the statement of accounts, that, of the revenue from the inspection work, SEK 21.6 million derived from monitoring fees, there is no such differentiation as regards the costs. However, in another footnote, information is provided on Byggettan’s costs, which are given separately for the branch activities and the inspection work. The total costs for wages and remunerations in 1999 amounted to SEK 25.5 million, of which SEK 12.5 million (i.e. about 49%) were attributed to the inspection work. The total amount of pension payments was SEK 6.9 million, of which SEK 6.346 million (or about 92%) were a burden on the latter activities. The remaining costs, including offices, travels, administration and social contributions, totalled SEK 28 million, of which SEK 12.7 million (about 45%) were attributed to the inspection work. 31. In submissions by the Building Workers’ Union to the Labour Court and by the Government in the present proceedings, it has been claimed that the result of the inspection work has to be corrected to the extent that a reimbursement was received from the pension fund of the Building Workers’ Union. In the statement of accounts for 1999, a reimbursement of SEK 6.360 million was recorded for the inspection work. As this reimbursement in effect reduced the costs, the amount has to be deducted from the recorded profit of SEK 5 million in order to arrive at the real financial result of the inspection work. Thus, in the Government’s view, the pension payments should be recorded as a cost, whereas the pension fund reimbursement should not be considered as revenue. Consequently, in 1999, that sector of activity was actually run at a loss of more than SEK 1.3 million. The applicants, however, disagree with the above calculation. They have stated that, throughout the years, the branches of the Building Workers’ Union have made contributions to the pension fund, whose accumulated assets are used to honour the Union’s pension commitments towards its retired personnel. Thus, when making pension payments, the Union branches are not the actual payer but are making the payments on behalf of the pension fund, presumably because the fund does not have an administrative division of its own to handle such payments. Accordingly, the applicants claim that, when determining the actual annual result of the inspection work, the pension transactions should only be taken into account to the extent that the fund reimbursements differ from the pension payments. In 1999, the reimbursement received by Byggettan exceeded the pension payments by as little as SEK 14,000. The financial result of that year should thus be reduced by only that amount and the recorded profit of SEK 5 million consequently remains virtually unchanged. In the statements of accounts of the Building Workers Union’s Gothenburg branch for the years 1997-2000, pension fund reimbursements have been recorded as revenue and pension payments as costs. Consequently, only the differences between reimbursements and payments have affected the annual results. 32. The statements of accounts in the annual reports of Byggettan for 1997, 1998 and 2000 contain figures which give a picture similar to 1999. In 1997, the revenue from the inspection work was SEK 27.9 million (of which the monitoring fees came to SEK 17.3 million) and the recorded profit of that sector of activity amounted to SEK 3.4 million. Byggettan received a pension fund reimbursement of more than SEK 8.3 million. If the result is corrected with this amount, in the manner claimed by the Government, the profit would turn into a loss of SEK 4.9 million. However, the reimbursement exceeded the pension payments by only SEK 1.7 million. If pension transactions were altogether excluded from the calculation, as effectively suggested by the applicants, the profit would be halved and amount to SEK 1.7 million. 45% of the wage costs, 92% of the pension payments and 42% of the other costs of that year were attributed to the inspection work. 33. In 1998, the inspection work revenue was SEK 28.8 million (of which the monitoring fees amounted to SEK 19.8 million) and the recorded profit was SEK 3.5 million. A pension fund reimbursement of SEK 6.8 million was received which, if allowed to correct the result in full, would change the latter into a loss of SEK 3.3 million. However, as the reimbursement exceeded the pension payments by only SEK 14,000, the profit would remain at SEK 3.5 million if pension transactions were not taken into account. 46% of the wage costs, 93% of the pension payments and 44% of the other costs were attributed to the inspection work. 34. In 2000, the inspection work revenue was SEK 37 million (of which the monitoring fees came to SEK 27.2 million) and the recorded profit was SEK 8.5 million. A pension fund reimbursement of SEK 6.4 million was received which, if correcting the result, would reduce the profit to SEK 2.1 million. However, as the reimbursement exceeded the pension payments by only SEK 315,000, the profit would be SEK 8.2 million if pension transactions were not taken into account. 53% of the wage costs, 93% of the pension payments and 51% of the other costs were attributed to the inspection work. 35. The budgets for 1998 and 2000-2003 have been made available to the Court by the parties. 36. In its budget for 1998, Byggettan estimated that the monitoring work would cost SEK 3.9 million and that the direct costs of the inspection unit (dealing with both monitoring of time-based wages and measuring of piecework) would amount to SEK 12 million. The projected revenue from the inspection work was SEK 29 million. It thus appears that the costs of the monitoring work accounted for about one-third of the inspection costs. However, as can be seen from the above-mentioned figures presented in the annual report for 1998 (see paragraph 33 above), the monitoring fees’ share of the inspection revenue came to more than two-thirds (SEK 19.8 million out of a recorded total of SEK 28.8 million). That share was approximately the same in 1997, 1999 and 2000. 37. The budgets for 2000-2003 give the estimated total costs of the various units of Byggettan. In 2000, the total projected costs of all sectors of activity were SEK 69.4 million. The monitoring unit had a budget of SEK 6.1. million and the wages and contracts unit (the largest unit of Byggettan, which, according to the description in the budget, was dealing with, inter alia, the measurement of piecework, wage negotiations and matters concerning workers’ co-determination, the work environment and safety) had a budget of SEK 18.1 million. It is not possible to discern, from the material available to the Court, how much of the latter unit’s budgeted costs related to the measuring work. Furthermore, as an unknown portion of Byggettan’s general administrative costs would presumably have to be attributed to monitoring and measuring, the total budgeted costs for the two types of inspection work cannot be established. However, the costs of the inspection work according to the official results for 2000 appear to be considerably higher than the budgeted costs for that activity. Thus, the statement of accounts for that year attributes SEK 28.5 million in operational and administrative costs and write-offs to the inspection work, which corresponds to about 52% of the grand total of SEK 54.8 million. If, as claimed by the Government, an amount corresponding to that year’s pension fund reimbursement is to be added as an actual cost, the official costs attributed to the inspection work rise to 57% of the total costs. 38. In the budget for 2001, the projected total costs of Byggettan were SEK 73.5 million, while those pertaining to the monitoring unit and the wages and contracts unit were SEK 6.3 million and 19.6 million, respectively. The 2002 budget estimated the total costs at SEK 73.1 million. Both the monitoring unit and the new wages unit (responsible, inter alia, for measuring work) had a budget of SEK 7.2 million. In 2003, the budgeted total costs were SEK 77.8 million and those pertaining to the monitoring unit and the wages unit were SEK 7.1 million and 8.6 million, respectively. 39. A chart compiled by Mr Leif Hjelm, Deputy Head of Finance at the Union, and submitted to the Court by the Government, contains the results of the monitoring and measuring activities of all 34 branches of the Union. According to the chart, Byggettan recorded a positive result in four out of the five years presented and had an accumulated profit of SEK 36.2 million during the period. If corrected with the reimbursements received from the pension fund, the accumulated profit would amount to SEK 21.8 million. However, the chart shows a negative overall result for 26 of the branches. As a consequence, the accumulated five-year result of the inspection work of all the branches of the Union was a loss of SEK 5 million, or – if the result is corrected with the contributions made by the branches to the pension fund and the reimbursements received from that fund during the period – a loss of SEK 58 million. It should be noted that the chart in question does not provide any information on the actual pension payments made by the Union branches, nor how the annual costs had been assigned between the inspection work and the branches’ other activities. The statements of accounts of the Gothenburg branch for the years 1997-2000 show, however, that that branch allocated the costs in much the same way as Byggettan. 40. In a statement of 23 February 2005, made in regard to the present case and submitted to the Court by the Government, Mr Rolf Andersson gave the following information on the monitoring activities of Byggettan in 1999. A total of about SEK 9.4 million was deducted from the wages of workers working for employers bound by the Construction Agreement. The total costs of the monitoring work were approximately SEK 16.4 million. A large part of the costs was financed by the employers themselves and not by means of deductions from workers’ wages. 41. In the Union’s periodical, Byggnadsarbetaren, issue no. 8/2006 (published on 18 May 2006), Mr Hans Tilly stated that the Union had a relatively low membership fee compared to other major trade unions because the monitoring and measuring fees bore the cost of the organisation of negotiations.
| 0
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train
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001-113715
|
ENG
|
FRA
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GRANDCHAMBER
| 2,012
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CASE OF CHABAUTY v. FRANCE
| 2
|
No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 2 of Protocol No. 1 - Control of the use of property;General interest;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)
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Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza
|
8. The applicant was born in 1934 and lives in Airvault. 9. The applicant inherited two plots of land in the municipality of Louin (département of Deux-Sèvres) with a total surface area of approximately ten hectares, which are included in the hunting grounds of the Louin approved municipal hunters’ association (association communale de chasse agréée – “ACCA”). He holds a hunting permit. 10. In France, hunting rights over land belong in principle to the landowner. However, Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, provides for the pooling of hunting grounds within ACCAs. The creation of an ACCA in each municipality is compulsory in twenty-nine of the ninetythree départements of metropolitan France excluding Bas-Rhin, Haut-Rhin and Moselle, including in DeuxSèvres; in the remainder of those ninety-three départements it is optional. Landowners whose property forms part of the hunting grounds of an ACCA in this way automatically become members of the association. They lose their exclusive hunting rights over their own land but have the right to hunt throughout the area covered by the ACCA. However, the owners of land with a surface area above a certain threshold may object to the inclusion of their land in the ACCA’s hunting grounds or request its removal from them (in the département of DeuxSèvres, the threshold is twenty hectares, which corresponds to the statutory minimum area). Since the entry into force of Law no. 2000-698 of 26 July 2000, landowners “who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property” also have this option, irrespective of the surface area of their land (see paragraphs 18-23 below). 11. In a letter of 12 August 2002 the applicant informed the Prefect of Deux-Sèvres that he wished to “object to the practice of hunting by the Louin ACCA on [his] plots of land” “as a matter of personal conviction”. On 23 September 2002 the Prefect informed him of the procedure to follow in order to have his land removed from the ACCA’s hunting grounds on account of his opposition to hunting for reasons of conscience. 12. On 17 December 2003 the applicant again wrote to the Prefect, applying to have his land removed from the Louin ACCA’s hunting grounds. He stated as follows: “... My application to have the land removed is not based on personal convictions but on the fact that the European Court of Human Rights, and subsequently the national administrative courts, have ruled ... that ‘while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes.’ It is clear from these different court rulings that large and small landowners cannot be treated differently on the basis of provisions which are contrary to Article 1 of Protocol [No. 1] taken in conjunction with Article 14 of [the] Convention. As I own only 10 hectares, 12 ares and 74 centiares, I would kindly request you to grant me permission, by means of a reasoned administrative decision, to immediately remove from the hunting grounds of the Louin ACCA the plots of land entered in section ... of the land register...” 13. On 6 February 2004 the Director of Agriculture and Forestry of the Deux-Sèvres Prefecture informed the applicant that his application had been rejected. Noting that the applicant was no longer citing his original reasons relating to personal convictions, but instead relied on Article 14 of the Convention and Article 1 of Protocol No. 1, the Director wrote as follows: “... the provisions of the Law of 26 July 2000 and of the Environmental Code, and in particular Articles L. 422-10 and L. 422-13 thereof, were designed to bring the domestic law into line with the case-law of the Court ... by providing that only landowners who do not hunt and who are opposed to hunting as a matter of personal conviction have a right to raise objections to hunting irrespective of the surface area of their land, while maintaining the requirement for owners of land below a certain threshold (twenty hectares in Deux-Sèvres) to transfer the hunting rights over their land to the ACCA. Our enquiries have revealed that you are the holder of a valid hunting permit for the current hunting season. As a result ..., pursuant to Article L. 422-13 of the Environmental Code, I must inform you that I am unable to grant your request and that the land you seek to have removed shall remain within the hunting grounds of the Louin ACCA. ...” 14. On 23 March 2004 the applicant requested the Prefect of DeuxSèvres to reconsider the decision. On 6 April 2004, having received no reply, he applied to the Poitiers Administrative Court for judicial review of the implicit refusal constituted by the Prefect’s failure to reply, and of the decision of 6 February 2004. 15. On 23 March 2005 the Poitiers Administrative Court allowed the application, in a judgment containing the following reasoning: “...while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes. ... thus, the difference in treatment between large and small landowners is contrary to Article 1 of Protocol [No. 1] read in conjunction with Article 14 of [the] Convention. ...” 16. The Louin ACCA applied to the Bordeaux Administrative Court of Appeal to have that judgment set aside, arguing that, as a hunter himself, the applicant could not claim to be a victim of a Convention violation. The Administrative Court of Appeal rejected the application in a judgment of 18 July 2006. It considered that the Director of Agriculture and Forestry had not been competent to sign the decision of 6 February 2004, which was therefore unlawful, as was the implicit refusal. Accordingly, the court concluded that the Louin ACCA had no grounds for contesting the settingaside of the decisions in question. 17. On an application by the Louin ACCA, the Conseil d’Etat, in a judgment of 16 June 2008, quashed the judgment of the Bordeaux Administrative Court of Appeal. It held that the latter had committed an error of law in ruling that the Director of Agriculture and Forestry had not been competent to sign the decision in question, since he had been properly delegated to sign documents in the sphere concerned. Ruling on the merits, the Conseil d’Etat went on to quash the judgment of the Poitiers Administrative Court of 23 March 2005 and rejected the applicant’s application for judicial review. The Conseil d’Etat held, inter alia, as follows: “... The evidence in the file shows that Mr Chabauty, who owns land with a surface area below that specified in paragraph 3 of Article L. 422-10 of the Environmental Code, requested the removal of his land not on the grounds that he was opposed to hunting as a matter of personal conviction, as permitted by the fifth paragraph of that Article, but on the grounds that he wished to reserve the hunting rights over his land for his own use without allowing the members of the ACCA to benefit from them. The system of approved hunters’ associations was devised on general-interest grounds to prevent the unregulated exercise of hunting and promote rational use of game stocks. Landowners who hunt and who transfer the rights over their land are automatically entitled, in accordance with Article L. 422-21 of the Environmental Code, to membership of the hunters’ association and, accordingly, to hunt throughout the association’s hunting grounds. Thus, the owners of land with a surface area below that specified in the third paragraph of Article L. 422-10 of the Code have a choice between relinquishing their hunting rights on the grounds that they are opposed to hunting as a matter of personal conviction or transferring the hunting rights over their land to the ACCA in exchange for the compensatory benefits referred to above. Accordingly, the system does not constitute disproportionate interference with the right to property and is not in breach of Article 1 of [Protocol No. 1]. The difference in treatment under the law between small and large landowners was introduced in the interests of hunters who own small plots of land, who can thus band together in order to obtain larger hunting grounds. Thus, this difference in treatment is based on objective and reasonable grounds and, since the owners of small plots remain free to use their land for a purpose in keeping with their conscience, the system in issue is not in breach of Article 1 of [Protocol No. 1] taken in conjunction with Article 14 of [the] Convention. It follows from the above that the Administrative Court incorrectly based its ruling on a breach of [these provisions] in setting aside the impugned decisions...” 18. In principle, hunting rights over land belong to the landowner. Article L. 422-1 of the Environmental Code states that “[n]o one shall have the right to hunt on land belonging to another without the consent of the owner or any person entitled through or under the owner”. However, the legislature deemed it necessary for hunting grounds to be “pooled” in some cases. This was the purpose of Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, which is applicable in the départements of metropolitan France other than Bas-Rhin, Haut-Rhin and Moselle and provides for the establishment of approved municipal and intermunicipality hunters’ associations (“ACCAs” and “AICAs”). 19. The ACCAs pool hunting grounds at municipal level. Under Article L. 422-2 of the Environmental Code, in the version applicable at the material time, they are “designed to ensure sound technical organisation of hunting. They shall encourage, on their hunting grounds, an increase in game stocks and wildlife while preserving a genuine balance between agriculture, forestry and hunting, provide instruction to their members in hunting-related matters and ensure the control of vermin and compliance with hunting plans ... Their role is also to ensure that hunters contribute to the conservation of natural habitats and wild flora and fauna”. The ACCAs are subject to the ordinary law on associations (Law of 1 July 1901) and to the specific provisions of the Loi Verdeille and the regulatory instruments implementing it (Articles L. 422-1 et seq. and Articles R. 422-1 et seq. of the Environmental Code). The prefect issues approval after checking that the requisite formalities have been completed and that the association’s constitution and internal rules conform to the statutory requirements (Articles L. 422-3 and R. 422-39 of the Environmental Code). The prefects are responsible for supervising the ACCAs, and any change to their constitutions, internal rules or hunting regulations must be submitted to the prefect for approval (Articles R. 422-1 and R. 422-2 of the Environmental Code). In the event of a breach by the ACCA of its constitution or hunting regulations or of damage to property, crops or public freedoms, or of a general breach of the relevant regulatory provisions (Articles R. 422-1 et seq. of the Environmental Code), the prefect may also adopt interim measures such as the suspension of hunting on all or part of the association’s hunting grounds or the dissolution of its executive committee (Article R. 422-3 of the Environmental Code). 20. The creation of ACCAs is mandatory only in certain départements named on a list drawn up by the Minister responsible for hunting on a proposal by the representative of the State in the relevant département, supported by the département council, and after prior consultation of the Chamber of Agriculture and the Hunters’ Federation in that département (Article L. 4226 of the Environmental Code). Twenty-nine of the ninetythree metropolitan départements other than Bas-Rhin, Haut-Rhin and Moselle are concerned. In the remainder of those ninety-three départements the representative of the State draws up a list of municipalities where an ACCA is to be set up. The decision is taken on an application by anyone who can furnish evidence that at least 60% of landowners holding at least 60% of the land in the municipality agree to set up an association for a minimum five-year period (Article L. 422-7 of the Environmental Code). 21. Landowners whose land is included in an ACCA’s hunting grounds are automatically members of the association (Article L. 422-21 of the Environmental Code). They lose their exclusive hunting rights over the land but, as members, have the right to hunt throughout the association’s hunting grounds in accordance with its regulations (Articles L. 422-16 and L. 42222 of the Environmental Code). The transfer of hunting rights entitles the landowner to compensation, payable by the ACCA, for any loss of profits caused by being deprived of a previous source of income. The ACCA is also obliged to pay compensation to owners of hunting rights who have “made improvements to the land over which they have hunting rights” (Article L. 422-17 of the Environmental Code). 22. Article L. 422-10 of the Environmental Code provides: “A municipal hunters’ association shall be established on lands other than those: 1. within a radius of 150 metres of any dwelling; 2. enclosed by a fence as defined in Article L. 424-3 [Article L. 424-3 provides that ‘... the owner of the land or the hunting rights may, at any time, hunt or arrange for the hunting of game animals on his or her land adjoining a dwelling and surrounded by a continuous and unbroken fence, forming an obstacle to any communication with neighbouring properties and incapable of being breached by game animals or by human beings’]; 3. forming an uninterrupted area greater than the minimum area referred to in Article L. 422-13 and in relation to which the owners of the land or of the hunting rights have filed objections; 4. constituting public property belonging to the State, a département or a municipality or forming part of a public forest, or belonging to the French Rail Network or the French National Railway Company. 5. in relation to which objections have been filed by individual owners, or unanimously by several co-owners acting jointly, who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands. ...” The fifth paragraph was added by Law no. 2000-698 of 26 July 2000 (published in the Official Gazette on 27 July 2000) for the purposes of executing the Court’s judgment in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III) (see paragraph 24 below). Articles L. 422-13, L. 422-14 and L. 422-15 of the Environmental Code further specify as follows: “I. In order to be admissible, an objection by the owners of land or hunting rights referred to in the third paragraph of Article L. 422-10 must relate to at least twenty hectares of land in a single block. II. That minimum shall be lowered in respect of waterfowl shooting 1. to three hectares for undrained marshland; 2. to one hectare for isolated ponds; 3. to fifty ares for ponds where, on 1 September 1963, there were fixed installations, shelters or hides. III. The minimum shall be lowered in respect of hunting for birds of the family Colombidae to one hectare for land where, on 1 September 1963, there were fixed structures used for that purpose. IV. The minimum shall be raised to one hundred hectares for land in mountain areas above the tree-line. V. Orders made for each département under the conditions laid down in Article L. 422-6 may increase the minimum areas thus defined. These increases may not bring the new figure to more than twice the minimum laid down above.” “The objections referred to in paragraph 5 of Article L. 422-10 shall be admissible provided that they relate to all the land belonging to the owner or co-owners in question. Such objections shall entail relinquishment of the exercise of hunting rights on the land ...” “Persons who have filed an objection shall be required to erect signs on their land to the effect that hunting is prohibited. Owners of land or hunting rights who have filed an objection shall take steps to destroy vermin and to control the presence on their land of species that cause damage. The crossing by hounds of land designated as a reserve or which is the subject of an objection under the third and fifth paragraphs of Article L. 422-10 shall not be considered as hunting on a reserve or on land belonging to another, except where the hunter has incited the hounds to enter the land.” 23. The Government stated that when an ACCA was being set up the owners of land not attaining the statutory minimum area or of hunting rights over such land could prevent the inclusion of their property in the ACCA’s hunting grounds by banding together to create a single block of land which exceeded the minimum area (Articles L. 422-10, third paragraph; R. 422-21; and R. 422-22 I, second paragraph, of the Environmental Code). 24. On 25 April 2005 the Committee of Ministers of the Council of Europe adopted the following Resolution (ResDH(2005)26): “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”), Having regard to the final judgment of the European Court of Human Rights in the case of Chassagnou and others... ... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 29 April 1999, having regard to France’s obligation under Article 46, paragraph 1, of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual and general measures taken in particular the amendment of Law No. 64696 of 10 July 1964 (the so-called “Verdeille Act”) which was criticised by the European Court in its judgment, so as to admit conscientious objection to hunting and thus avoid further violations similar to those found by the European Court against persons opposed to hunting (see the appendix to this resolution); ... Declares, after having examined the information supplied by the Government of France, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case. Information provided by the Government of France during the examination of the case of Chassagnou and others by the Committee of Ministers ... To give full effect to the Court’s judgment, Act No. 64-696 of 10 July 1964 (“the Verdeille Act”), impugned by the Court, has been amended, giving those opposed to hunting the right to object to it on grounds of conscience. Act No. 2000-698 on hunting, which introduces this amendment, was adopted on 26 July 2000 and published in the official gazette on 27 July 2000. Under Section 14 of that Act (the present Article L422-10 of the Environmental Code): ‘The municipal association [the licensed municipal hunting association – ACCA] shall be established on lands other than those: ... 5. Covered by objections lodged by individual owners, or unanimously by several co-owners acting jointly, who are opposed to hunting for reasons of personal conviction, and who forbid hunting, also by themselves, on their lands, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands. When the owner is a corporation, the objection may be lodged by the chief executive of its decision-making body, duly authorised by it to do so.’ The government also notes that implementation of the provisions relating to the ACCA, as amended by the said Act of 26 July 2002, appears to have raised certain problems in respect of possibilities of withdrawing from the ACCA open to persons not wishing to plead objections of conscience. These problems have given rise to a number of proceedings which are still pending before the appeal courts, but in which the administrative courts based their first-instance judgments on principles derived from the Strasbourg case-law, and particularly the Chassagnou judgment. At all events, the government considers, in view of the direct effect in French law of the European Convention on Human Rights and the case-law of the European Court, that there is no longer any risk of further violations of the kind suffered by the antihunting applicants according to the Chassagnou judgment. ...”
| 0
|
train
|
001-57421
|
ENG
|
BEL
|
CHAMBER
| 1,983
|
CASE OF ALBERT AND LE COMPTE v. BELGIUM (ARTICLE 50)
| 2
|
Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
| null |
1. The present case was referred to the Court on 12 March 1982 by the European Commission of Human Rights ("the Commission"). The case originated in two applications (nos. 7299/75 and 7496/76) against Belgium lodged with the Commission in 1975 and 1976 by two Belgian nationals, Dr. Alfred Albert and Dr. Herman Le Compte. 2. On 28 May 1982, the Chamber constituted to examine the case relinquished jurisdiction in favour of the plenary Court (Rule 48 of the Rules of Court). By a judgment of 10 February 1983, the latter held that there had been a breach of Article 6 para. 1 (art. 6-1) of the Convention in that the Appeals Council of the Ordre des médecins (Medical Association) had not heard the applicants’ cases (in French: "causes") publicly and had not pronounced its judgment publicly. It found, on the other hand, that there had been no violation of that Article (art. 6-1) as regards the applicants’ other complaints, and no violation of Articles 3 and 11 (art. 3, art. 11) with respect to Dr. Le Compte (Series A no. 58, paras. 21-22 and 31-44 of the reasons and points 1, 3 and 4 of the operative provisions, pp. 13 and 17-22). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 17 of the above-mentioned judgment (ibid., pp. 9-11). 3. At the hearings of 27 September 1982, counsel for Dr. Le Compte had asked the Court, in the event of its finding a breach of the Convention, to afford his client just satisfaction under Article 50 (art. 50). He had, however, expressed the view that the question was not yet ready for decision. The Commission’s Delegates, for their part, had requested the Court to defer ruling on this point in the absence of any indication from Dr. Albert or his counsel. In its judgment of 10 February 1983, the Court reserved the question and referred it back to the Chamber under Rule 50 para. 4 of the Rules of Court (ibid., paras. 45-46 of the reasons and point 5 of the operative provisions, p. 22). On the same day, the Chamber invited the Commission to submit, within the coming two months, its written observations, including notification of any friendly settlement at which the Government of the Kingdom of Belgium ("the Government") and the applicants might have arrived (Series A no. 58, p. 29). 4. On 12 April 1983, the President granted an extension of this time-limit until 10 May. On 19 May, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the Registrar a copy of a note drafted by Dr. Le Compte’s lawyer. The note, which was dated 28 April 1983 and referred to a similar document filed in the case of Le Compte, Van Leuven and De Meyere (judgment of 18 October 1982, Series A no. 54, pp. 5-6, para. 4), contained two series of claims. (a) First, Dr. Le Compte sought the adoption by the Government of measures providing partial reparation in the form of (i) "the complete and effective expunction of all the sanctions imposed on him, both disciplinary and penal"; (ii) the withdrawal of a circular issued by the Minister of Justice, prohibiting all dispensing chemists in Belgium from making up prescriptions written by the applicant on and after 26 December 1975. (b) Second, Dr. Le Compte claimed (i) "as compensation for the prejudice suffered", an award of 10,000,000 BF per annum since the striking of his name from the register of the Ordre; (ii) reimbursement of the costs incurred before the Court of Cassation and the Convention organs, to be calculated by applying "the same criteria and scales as those utilised in the European Court’s judgment of 18 October 1982, the amounts remaining the same" (Series A no. 54, pp. 9 and 11, paras. 20, 23 and 25). The Delegates, for their part, confined themselves to referring to their memorial of 30 March 1982 in the case of Le Compte, Van Leuven and De Meyere and to the judgment of 18 October 1982 in that case. They left it to the Court’s discretion to afford just satisfaction, on the basis of those documents. 5. By Order of 20 May 1983, the President directed that the Agent of the Government should have until 20 June 1983 to submit his observations. At the Agent’s request, he extended this time-limit until 20 July. The Government’s reply was received at the registry on 29 June. 6. On 1 June 1983, the Deputy Secretary to the Commission informed the Registrar that Dr. Albert was claiming no more than a token award of one Belgian franc for non-pecuniary damage.
| 0
|
train
|
001-81409
|
ENG
|
RUS
|
CHAMBER
| 2,007
|
CASE OF LEVOCHKINA v. RUSSIA
| 3
|
Preliminary objections dismissed;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
Christos Rozakis
|
6. The applicant was born in 1941 and lives in Novosibirsk. 7. The applicant receives an old-age pension. The Law of 21 July 1997 on the Calculation and Upgrading of State Pensions (“the Pensions Act”) introduced, from 1 February 1998 onwards, a new method for calculating pensions. The idea behind this method, based on what is known as an “individual pensioner coefficient”, was to link the pension to the pensioner's previous earnings. 8. The authority in charge of the applicant's pension, the Pension Fund Agency of the Kirovskiy District of Novosibirsk (“the Agency”), fixed the applicant's coefficient at 0.525. The applicant challenged the Agency's decision in the Kirovskiy District Court of Novosibirsk. She argued that her coefficient should be 0.7. 9. On 31 August 1999 the District Court found for the applicant, considering that the Agency had misinterpreted the Pensions Act. In particular, it held as follows: “... Article 4 [of the 1997 Pensions Act] fixes an individual pensioner coefficient at the maximum rate of 0.7. This rate is subject to changes hereafter by a federal law at the adoption of a federal law on the budget of the RF PF [Pension Fund] for a next financial year.” The District Court decided that the Agency was to recalculate the applicant's pension using a coefficient of 0.7 from 1 February 1998 “until a change in the legislation”. 10. The Agency appealed against the judgment. On 7 October 1999 the Novosibirsk Regional Court upheld the judgment, which became enforceable on the same day. The judgment was never executed. 11. On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “Application of Limitations” established by the Pensions Act (“the Instruction”). The Instruction clarified how to apply the Pensions Act. 12. On 23 August 2000 the Agency lodged an application with the District Court for the reconsideration of the applicant's case owing to newly discovered circumstances. They asked the court to take account of the Instruction, which supported their arguments that had been rejected by the court during the initial examination of the case. 13. Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation. On 24 April 2000 the Supreme Court dismissed the complaint. It found that, contrary to what the complainants had suggested, the Ministry of Labour had not acted ultra vires in issuing the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal. 14. On 16 January 2001 the District Court examined the Agency's request. The District Court noted that by virtue of Article 333 of the Code of Civil Procedure enforceable judgments may be reconsidered owing to newly discovered circumstances which could not have been known at the time when the judgment had been delivered. The court further noted that the Instruction had been upheld by the Supreme Court which, therefore, had found it lawful to interpret article 4 of the Pensions Act so that the rate of 0.7 should not apply to an “individual pensioner coefficient”. 15. In a decision of 16 January 2001 the District Court granted the Agency's application, under Article 337 of the Code of Civil Procedure, quashed the judgment of 31 August 1999, as upheld on 7 October 1999, and ordered a fresh examination of the case. It stated that its decision was not subject to appeal. 16. As a result of the fresh examination of the case the District Court delivered a judgment of 31 January 2001 in which it rejected the applicant's claims in full. The applicant appealed. On 13 March 2001 the Novosibirsk Regional Court dismissed the applicant's appeal and upheld the judgment of 31 January 2001. 17. From 1 May 2001, following changes to the pension regulations, the applicant's pension was calculated based on a coefficient of 0.84. 18. The Code of Civil Procedure of 1964 (“CCivP”), in force at the material time, provided as follows: “[Judgments] which have come into force may be reconsidered on the basis of newly discovered circumstances. The grounds for reconsideration ... shall be as follows: 1. significant circumstances which were not and could not have been known to the party who applies for reconsideration; ... 4. cancellation of a court [judgment] or of another authority's decision which served as legal basis for the [judgment] in question.” “... [An application for reconsideration of a [judgment] owing to newly discovered circumstances] shall be lodged within three months after the discovery of the circumstances.” “After examination of an application for reconsideration of a [judgment] owing to newly discovered circumstances, the court may either grant the application and quash the [judgment], or dismiss the application. The court decision by which an application for reconsideration of a [judgment] owing to newly discovered circumstances is granted shall not be subject to appeal. ...” 19. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (“CCrP”). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the CCivP) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. In its ruling of 3 February 1998 the Constitutional Court came to the conclusion that Article 192 § 2 of the Code of Commercial Procedure was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of the Supreme Commercial Court, where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier. 20. The Instruction of the Ministry of Labour and Social Development of 29 December 1999 on the “Application of Limitations” established by the Pensions Act was registered by the Ministry of Justice on 31 December 1999 and became binding in February 2000, ten days after its official publication.
| 1
|
train
|
001-113548
|
ENG
|
ARM
|
CHAMBER
| 2,012
|
CASE OF ANTONYAN v. ARMENIA
| 3
|
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
|
5. The applicant was born in 1937 and lives in Yerevan. She is a seconddegree disabled person. 6. On an unspecified date during the Soviet period, the State allocated to the applicant a flat in Yerevan on the right of tenancy. 7. In 1981 the applicant’s niece, who had moved to Yerevan to study, obtained registration at the applicant’s flat with the latter’s consent. In 1986 she moved back to the town of Hrazdan without cancelling her registration. In 1989 the applicant’s niece was married, and she gave birth to two children in 1989 and 1991 respectively. Upon the applicant’s consent, the children were also registered at the applicant’s flat so that they could receive medical care from her address. 8. On 11 February 1993 the applicant acquired ownership of the flat, which was notarised on 19 February 1993. 9. In 1996 the applicant’s niece passed away. Her registration at the applicant’s flat was subsequently cancelled. 10. On 26 December 2003 the applicant applied to the Kanaker-Zeytun District Police Department of Yerevan (hereafter the District Police Department) seeking to cancel the children’s registration. 11. By a letter of 20 January 2004 the District Police Department informed the applicant of its refusal to cancel the children’s registration on the ground that, according to the relevant rules, the registration of minors could be cancelled only together with the cancellation of the registration of one of their parents; upon an application by the parents or the children’s lawful representatives; in connection with studies; or upon a relevant court order. 12. On an unspecified date, the applicant contested this refusal before the courts, seeking to oblige the District Police Department to deregister the children and claiming that the latter had never lived in her flat. 13. On 15 March 2004 the Arabkir and Kanaker-Zeytun District Court of Yerevan dismissed the applicant’s complaint, finding that the refusal was lawful as the District Police Department had acted in accordance with Government Decree no. 821 of 25 December 1998. According to the text of the judgment, the parties had been duly notified of the hearing but had failed to appear. According to the applicant, she was not notified of that hearing. 14. On 25 March 2004 the applicant lodged an appeal. 15. On 8 June 2004 the Civil Court of Appeal dismissed the applicant’s appeal on the same ground. According to the text of this judgment, the applicant and her representative made oral submissions at the court hearing. According to the applicant, neither she nor her representative was given the opportunity to make any oral submissions. It further appears that the children’s father was present at the appeal hearing and petitioned to dismiss the applicant’s claim. 16. On an unspecified date, the applicant lodged an appeal on points of law. 17. On 23 July 2004 the Court of Cassation dismissed her appeal finding that: “According to Article 225 of the Civil Code, if no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value. In such circumstances, the arguments raised in the appeal on points of law are unsubstantiated, since the right of use of accommodation enjoyed by [the children] can be terminated only in accordance with Article 225 of the Civil Code...” 18. According to Article 4, apartment buildings and accommodation in other constructions situated on the territory of Armenia comprise the housing fund. 19. According to Article 9, citizens are entitled to receive accommodation in houses of the State and the public housing fund through a prescribed procedure. 20. According to Article 49, on the basis of the decision to allocate accommodation in a building of the State or public housing fund, the relevant executive committee shall provide the citizen with an order which shall serve as the sole basis for occupying the allocated accommodation. 21. According to Article 51, the accommodation tenancy agreement in respect of the buildings of the State and public housing fund shall be concluded in writing, on the basis of the accommodation order, between the lessor, namely, the organisation managing the maintenance of the building, and the tenant, namely, the citizen in whose name the voucher has been provided. Accommodation in the buildings of the State and public housing fund shall be used in accordance with the accommodation tenancy agreement. 22. According to Article 53, the tenant’s family members who live with him shall equally enjoy all the rights and bear all the responsibilities stemming from the accommodation tenancy agreement. 23. According to Article 54, the tenant’s family members include his spouse, their children and parents. Other individuals may be recognised as the tenant’s family members, if they live with the tenant and run a common household. 24. According to Article 55, the tenant has the right, with the consent of members of the family residing with him, to accommodate his spouse, children, parents and other persons in the accommodation occupied by him. Persons who have been accommodated in the accommodation according to this Article shall acquire the right of use of that accommodation equally with other persons residing there, unless some other agreement has been reached, at the time when these persons were accommodated, between the tenant and members of his family residing with him. 25. According to Article 59, in case of the tenant’s or his family member’s temporary absence, the accommodation shall be kept for them for a period not exceeding six months. A person may lose his right of use of accommodation by a court decision as a result of being absent for a period exceeding the prescribed time-limit on the basis of an application filed by the tenant or other permanent users of the accommodation in question. 26. According to Article 23 § 2, the place of residence of minors under the age of fourteen shall be considered the place of residence of their lawful representatives, such as, inter alia, their parents. 27. According to Article 163 § 1, the right of use implies the possibility afforded by law to reap the useful natural qualities of a property and to “benefit” from it. 28. According to Article 225 § 1, as in force at the material time, the family members of the owner of accommodation and other individuals have the right to use the accommodation, if that right has been registered in accordance with the procedure prescribed by the Law on the State Registration of Property Rights. 29. According to Article 225 § 2, as in force at the material time, the right of use of accommodation shall originate, be implemented and terminated through a notarised written agreement with the owner. If no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value. 30. In accordance with Article 225 § 4, as in force at the material time, a person enjoying the right of use of accommodation can demand that any person, including the owner, eliminate the breaches of his right in respect of the accommodation. 31. According to Paragraph 20, flats in buildings of the State and public housing fund shall be sold as private property to the tenants of the flats in question and their family members indicated in Article 54 of the Housing Code, if there is written consent from all the adult family members. The flat may be sold to them as a common property, if they so wish. 32. According to Paragraph 20, as in force at the material time, registration and deregistration of citizens shall be implemented for the purpose of ensuring necessary conditions for the enjoyment by them of their rights and freedoms as well as for the performance of their obligations before the State and other citizens. 33. According to Paragraph 21, as in force at the material time, citizens shall be registered at only one address at their temporary or permanent place of residence. 34. According to Paragraph 22, as in force at the material time, accommodation in respect of which a citizen does not have the right of ownership, tenancy or sub-tenancy, and which is not his permanent place of residence shall be considered his temporary place of residence. 35. According to Paragraph 23, as in force at the material time, the place where a citizen lives permanently or predominantly shall be considered his permanent place of residence. 36. According to Paragraph 29, a citizen’s application to be registered at a temporary place of residence can be refused if there is no written consent from, inter alia, the owner of the accommodation. Minor children shall be registered, irrespective of whether there is written consent from the owner, at the place of registration of one of the parents or their lawful representative. 37. According to Paragraph 39, the registration of minors below the age of sixteen who live with their parents shall be made through a relevant entry in the accommodation card or the parent’s registration card on the basis of the parents’ identity documents and the minor’s birth certificate. 38. According to Paragraph 44, the registration of citizens registered at a temporary or permanent place of residence shall be cancelled in case of, inter alia, change of place of residence, death, or if the documents and information which served as a basis for the registration were false. The authorities in charge of registration shall cancel the citizen’s registration at the permanent place of residence on the basis of documents within three days and make a relevant entry in his passport.
| 1
|
train
|
001-86473
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
GOLD v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr Leigh Stuart Gold, is a British national who was born in 1943 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 13 June 1999. In December 2000, the applicant made a claim for widows’ benefits. On 10 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The 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
|
001-5227
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,000
|
BIJLEVELD v. THE NETHERLANDS
| 4
|
Inadmissible
|
Elisabeth Palm
|
The applicant is a Dutch national, born in 1958, and living in Leiden. She is represented before the Court by Ms A.N.H.M. Spruit, a lawyer practising in Rotterdam. A. The applicant and her husband have two sons, born in 1988 and 1991 respectively, and two daughters, born in 1994 and 1997 respectively. Pursuant to the relevant rules of Dutch law, these children bear the surname of the applicant’s husband. As the applicant and her husband wished their sons to bear the surname of their father and their daughter to bear the surname of the applicant, the applicant filed a request on 12 September 1994 to change the surname of her, at that time still unborn, daughter. On 24 November 1994, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request. The applicant’s subsequent appeal to the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 23 May 1996. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It recalled that the State Secretary had based the refusal of the applicant’s request on a finding that the relevant rules on the chance of surnames did not foresee in a request like the applicant’s one and that it had not been established that there were such special circumstances on the basis of which a strict application of the relevant rules would not be acceptable ex aequo et bono. It further noted that the Regional Court had also not found such circumstances. Insofar as the applicant argued that the Dutch rules on surnames are contrary to Article 26 of the International Covenant on Civil and Political Rights in that they amount to a discriminatory treatment between men and women, the Administrative Law Division held that the request at issue only concerned one of the applicant’s children whereas no such request had been made for her other two children. The refusal at issue was not found to be discriminatory as it achieved that all children having the same parents bear the same surname and that therefore no difference between boys and girls was made. Moreover, in the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code (Burgerlijk Wetboek), the legislator had, in the meantime, created the possibility for parents to choose themselves which of their respective surnames their children will bear, albeit with the restriction that all of their children must bear the same surname. It held that this restriction was in conformity with its consideration as to the alleged discriminatory character of the refusal of the applicant’s request. As to the applicant’s argument that the refusal of her request was in violation of Article 8 of the Convention, the Administrative Law Division held that there was no interference, as such, with the applicant’s rights under this provision in that the refusal did not alter the applicant’s personal situation or her family life with her daughter. As to the question whether the Netherlands were under a positive obligation under Article 8 of the Convention to grant the applicant’s request, it was held that the applicant’s personal interest, i.e. the continuation of her family name by her daughter’s surname, was outweighed by the general interest in preserving the stability required in the legal rules governing names (“de handhaving van de nodige stabiliteit in het namenrecht”) and that, therefore, the Netherlands authorities were not under a positive obligation to grant the applicant’s request. B. Relevant domestic law and practice Until 1 January 1998, a child born in wedlock or a child whose father had recognised his paternity automatically obtained the father’s surname. Only limited possibilities existed to obtain change of one’s surname. On 1 January 1998, as a result of the entry into force of the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code, the rules governing surnames were changed. Under the new situation, married parents may make a joint formal declaration, either before or when formally registering the birth of their first child, stating whether the child will bear the surname of the father or the mother. This declaration will continue to apply to any children born subsequently to the couple. In the absence of any declaration, a child will automatically obtain the father’s surname. If the parents are not married, the child will obtain the mother’s surname; also where the father has recognised his paternity. If unmarried parents wish their child to bear the father’s surname, a joint formal declaration to this effect must be made at the time of the father’s recognition of his paternity. The change in the law also included transitory rules in respect of children born before 1 January 1998, provided that the oldest child, at the time the parents make their formal declaration, has not yet attained the age of twelve. These transitory rules remained in force until 1 January 2000. Under these transitory rules, parents may make a joint formal declaration to the effect that their child or children bear the mother’s surname. Any children born subsequently to the couple will then automatically obtain the mother’s surname.
| 0
|
train
|
001-72135
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,005
|
LOVE v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Josep Casadevall;Nicolas Bratza
|
The applicants (see attached Appendix) are British nationals. s, may be summarised as follows. The applicants were, at the material time, serving members of the British armed forces. They claim that, following an investigation into their sexual orientation, they were each discharged from the armed forces pursuant to the policy against homosexuals in the armed forces on the dates listed in the attached Appendix. The applicants submitted a claim to the employment tribunal (“the ET”) arguing that their dismissal, and the circumstances leading to it, breached the Sex Discrimination Act 1975 (“the 1975 Act”). As a result of the House of Lords' judgment MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) dated 19 June 2003, the ET struck out Mr Bullet's case (14557/05) and dismissed (by consent) the remaining applications on the dates listed in the attached Appendix. On 27 September 1999 the Ministry of Defence ended its policy of excluding homosexuals from the British armed forces following the delivery of judgments in Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96, 27 September 1999) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, ECHR 1999-VI). On 24 January 1996 Mr Perkins, who had also been dismissed from the Royal Navy in 1995 on grounds of his homosexuality, applied to the High Court for leave to take judicial review proceedings on the basis that the Ministry of Defence policy was “irrational”, that it was in breach of Articles 8 and 14 of the Convention and that it was contrary to the EU Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (“the Equal Treatment Directive”). On 30 April 1996 the European Court of Justice (“the ECJ”) decided that transsexuals were protected from discrimination arising from their gender reassignment under European Community law and, in particular, by the Equal Treatment Directive (P. v. S. and Cornwall County Council [1996] I.R.L.R 347). On 3 July 1996 Mr Perkins was granted leave by the High Court. On 13 March 1997 the High Court referred to the ECJ pursuant to the then Article 177 of the Treaty of Rome the question of the applicability of the Equal Treatment Directive to differences of treatment based on sexual orientation (R. v. Secretary of State for Defence, ex parte Perkins, 13 March 1997). On 17 February 1998 the ECJ found that the refusal of travel concessions to a worker living with a person of the same sex could not be regarded as discrimination based on sex prohibited by the EU Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (“the Equal Pay Directive”) (Grant v. South West Trains Ltd [1998] I.C.R. 449). Consequently, on 2 March 1998 the ECJ enquired of the High Court in the Perkins case whether it wished to maintain the Article 177 reference. After a hearing between the parties, the High Court decided to withdraw the question from the ECJ (R. v. Secretary of State for Defence, ex parte Perkins, 13 July 1998). Leave to appeal was refused. This Act gave effect in domestic law to the Equal Treatment Directive. Section 1(1)(a) of the 1975 Act provides: “A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if - (a) on the ground of her sex he treats her less favourably than he treats or would treat a man.” Section 2(1) provides that section 1, and the provisions of Part II and III of the Act relating to sex discrimination against women, are to be read as applying equally to the treatment of men, with the requisite modifications. Section 5(3) of the Act provides: “A comparison of the cases of persons of different sex ... under section 1(1) ... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” Section 6(2) provides that it is unlawful for a person to discriminate against a female employee by dismissing her or subjecting her to any other detriment. If sexual harassment occurs in an employment context, it is considered “detriment” within the meaning of Section 6(2) of the Act. 4. House of Lords judgment on the 1975 Act On 19 June 2003 the House of Lords found in MacDonald (AP) (Appellant) v. Advocate General for Scotland (Respondent) (Scotland) that the word “sex” in the 1975 Act meant “gender”. It also found that the correct comparison was between the homosexual male applicant and a homosexual woman. These two conclusions meant that the claim of sex discrimination and sexual harassment before it fell away: in both cases, the applicant would not have been treated any differently to a female homosexual.
| 0
|
train
|
001-114163
|
ENG
|
SVK
|
ADMISSIBILITY
| 2,012
|
LESOOCHRANÁRSKE ZOSKUPENIE VLK v. SLOVAKIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
|
1. The applicant association was established under Slovak law in 1993 and is registered in Tulčík. 2. The applicant association was represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice. 3. 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. 4. The applicant is an association under the Associations of Citizens Act (Law no. 83/1990 Coll., as amended). It has its own legal personality, distinct from that of its members. 5. The preamble to its constitution states that the applicant association regards a forest as a living being that commands adequate respect (clause 2), that the applicant association was established in order to save the natural forests of the planet, and that that salvation constitutes an essential duty of the current generation to future generations (clause 4). 6. Pursuant to Article 2 § 5 of its constitution, the applicant association’s mission is to put into practice the ideas mentioned above, inter alia, by: - direct action aimed at preventing the destruction of natural forests in particular; - representation of the legally recognised interests of its members in proceedings that touch upon the mission of the applicant association; - entering into decision-making processes that have an impact on forest economy activities, above all the creation of forest economy planning; - assistance in the preparation of documentation to determine the long-term goals and tasks of the forest economy and thereby contribute to enhancing the role of forests; and - detection of, and adequate reaction to, incidents involving a threat to health, property, nature and the environment. 7. The applicant association considers its to fall under the category of “public” and “concerned public”, that is to say public affected or likely to be affected by, or with an interest in, environmental decision-making, within the meaning of Article 2 §§ 4 and 5 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) (see “Relevant international material” below). 8. The High Tatra is a mountain range on the border between Slovakia and Poland. It is part of the Eastern Tatra Mountains, which, together with the Western Tatra Mountains, form the Tatra National Park (“the TANAP”). 9. The TANAP and its territory are protected under the Nature and Landscape Protection Act (Law no. 543/2002 Coll., as amended) (“the NLP Act”) and Government Directive no. 58/2003 Coll., which established the TANAP. 10. The forest, land and resources located in the TANAP are administered by Štátne lesy TANAP-u (“ŠL TANAP”), a body established by the Ministry of Agriculture and linked to the national budget (príspevková organizácia). 11. On 19 November 2004 high winds in the area comprising the High Tatra caused substantial damage to the forest, inter alia in the areas comprising the National Natural Reserves of the Kôprová and Tichá valleys. 12. Various administrative proceedings were held, mainly under the NLP Act and the Forests Act (Law no. 326/2005 Coll., as amended), in order to address the consequences of the disaster. 13. The applicant association made a number of requests to various authorities responsible for environmental protection that it be informed of any proceedings pending before such authorities concerning the protection of the environment. These included a request in reliance on the NLP Act, made on 28 January 2003 to the Ministry of the Environment; a request in reliance on the NLP Act, made on or around 27 April 2005 to the Poprad County Office of the Environment (Obvodný úrad životného prostredia); and a request in reliance on the Forests Act, made on 16 July 2007 to the Poprad County Forestry Office (Obvodný lesný úrad). 14. As a result of the above-mentioned requests, the applicant association participated in some proceedings and sought to participate in others. Its participation was in the procedural capacity of a party (účastník konania) to or a participant (zúčastnená osoba) in the proceedings, within the meaning of Articles 14 and 15a of the Administrative Procedure Code (Law no. 71/1967 Coll., as amended) (“the APC”). As a general rule, unlike a party to proceedings, a participant has no right of appeal. 15. Further details concerning the applicant association’s participation in the proceedings ensuing the natural disaster and the procedural status of parties and participants are set out below. 16. On 30 November 2004 the Tatranská Lominica branch of the ŠL TANAP applied for a general derogation from the protective conditions applicable to the environment in the High Tatra, with a view to addressing the effects of the disaster. In so doing they also sought to obtain approval under section 16(1)(b) of the NLP Act (as applicable at that time) to interfere with forest coppice and to damage vegetation and soil cover in the areas affected by the disaster for the same purpose. 17. Under section 82(3) of the NLP Act, as applicable at that time, the applicant association had the status of a party to those proceedings. Following an amendment to the applicable regulations (see paragraph 35 below), the procedural status of environmental associations such as the applicant association was reduced to that of a participant. 18. On 26 April 2005 the Prešov Regional Office of the Environment (Krajský úrad životného prostredia) ruled that the application of ŠL TANAP was subject to an environmental impact assessment (EIA) under the EIA Act (Law no. 127/1994 Coll., as amended, which was replaced with effect from 1 February 2006 by Law no. 24/2006 Coll.) and that the proceedings be stayed until ŠL TANAP had submitted such an assessment. 19. On 31 May 2006 the Prešov Regional Office of the Environment ruled that unless ŠL TANAP submitted the final EIA by 20 June 2006, the proceedings would be discontinued. 20. On 21 September 2006 the Prešov Regional Office of the Environment discontinued the proceedings because ŠL TANAP had failed to submit the final EIA. The decision was upheld on 18 May 2007 by the Ministry of the Environment following an appeal by ŠL TANAP. 21. On 20 November 2006 the Tatranská Lomnica branch of ŠL TANAP requested that the forestry authority concerned declare a state of emergency and take measures to reduce the risk of an outbreak of bark beetle in the forests of the Kôprová and Tichá valleys. 22. Had the applicant association been invited to take part in the proceedings, it would have enjoyed the procedural status of a participant under section 67(4) of the Forests Act (Law no. 326/2005 Coll., as amended). 23. On 5 April 2007 the County Forestry Office ordered ŠL TANAP to carry out preventive measures under section 28(1)(i) of the Forests Act with a view to reducing the risk of the spread of bark beetle in the forest of Podbanské, in particular by cutting down infected trees in the wooded area affected by the disaster. 24. The applicant association was not involved in the proceedings. The decision became final on 10 April 2007. 25. On 11 June 2007 the applicant association challenged the decision of 5 April 2007 by way of a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd). 26. The applicant association argued that the impugned decision should have been preceded by a derogation from, or approval of, non-compliance with environment protection measures under the NLP Act. If that had happened, the applicant association would have had the status of a party to the proceedings under that Act. However, the decision of 5 April 2007 was taken without prior derogation or approval, and thus without the applicant association’s involvement. This was contrary to the applicant association’s right of access to court and justice, and to its constitutional right to a good environment. 27. On 1 April 2008 the Constitutional Court declared the complaint inadmissible. It found that the Forests Act accorded the applicant association the procedural status of a participant in, and not a party to, the proceedings in question. That being recognised, the Constitutional Court observed that the applicant association had had the opportunity to seek recognition of its position as a participant under the terms of section 67(4), (5) and (6) of the Forests Act. However, it had failed to seize that opportunity as it had requested that it be informed of proceedings under the Forests Act only on 16 July 2007 (see paragraph 13 above), that is to say after the end of the proceedings (see paragraph 24 above). 28. Furthermore, the Constitutional Court noted that the applicant association had been directly concerned with the subject matter of the proceedings but had failed to assert a claim to that effect. If it had done so, it would have had the status of a party to the proceedings, which would have allowed it to challenge the impugned decision by lodging an administrative appeal and, as appropriate, seeking judicial review. 29. Finally, the Constitutional Court held that the right to a good environment applied only to individuals and not to legal entities such as the applicant association, which therefore could not assert that right. The decision was served on the applicant association on 22 April 2008. 30. The object of the NLP Act is to determine the jurisdiction of the administrative and municipal bodies as well as the rights and duties of legal entities and individuals in protecting nature and landscape, with a view to contributing to the preservation of the diversity of conditions and forms of life on the Earth. It is also the object of the Act to provide conditions for the sustaining, renewal and rational use of natural resources, protection of natural heritage, maintaining the character of landscape, and achieving and sustaining ecological stability (section 1). 31. Unless provided otherwise, proceedings under the Act are subject to the APC (section 81(1)) (see below). 32. Under section 82(3), as applicable until 30 November 2007, associations of citizens whose objective for the previous year had been environmental protection had the status of parties to proceedings under the Act, provided that they announced their participation within seven days of being informed of the proceedings. 33. A group of Members of Parliament submitted a bill that was enacted with effect from 1 December 2007 (Law no. 454/2007 Coll.) amending the NLP Act, inter alia, so that associations of citizens referred to under section 82(3) of the Act would have the status only of participants in proceedings. 34. Under section 82(6) and (7), an association referred to in section 82(3) can request that the authority concerned inform it of any administrative proceedings before that authority with potential implications for the protection of nature and the environment under the Act. The authority is then duty bound to inform the association of any such proceedings within seven days of their commencement or, as the case may be, of the request. 35. On 21 October 2011 the National Council of the Slovak Republic amended the environment legislation, including the NLP Act. The amendment entered into force on 1 December 2011as Law no. 408/2011 Coll. Among other changes, environmental associations were again accorded the status of party to the proceedings (amended section 82(3), (6) and (7)). It was acknowledged that the purpose of this change was, inter alia, to ensure that such associations had access to remedies under Article 9 § 3 of the Aarhus Convention and that, until that time, the applicable rules of procedure had lacked provisions for such access. It was also observed that, following the judgment of the Court of Justice of the European Union of 8 March 2011 in case no. C-240/09 (see below), the jurisprudence of the Supreme Court had settled so as to interpret the applicable procedural rules in conformity with the European rules (see judgment of the Supreme Court in case no. 3Sžp5/41/2009) and to accord the associations in question the procedural status of parties (see report on the bill by the Agriculture and Environment Committee of the National Council and Joint Report of that Committee, together with the Committees of the National Council for Constitutional Affairs, Economy, Construction and Transport). 36. The Forests Act defines forest land and its protection, determines the ownership of forest land and the use of forests, and governs professional management of forests, support for a sustainable forest economy, jurisdiction of the State administrative agencies and State supervision of forestry, and sets out sanctions for breaches of the Act (section 1(1)). 37. The purpose of the Act is to preserve, develop and protect forests, to create the economic conditions for a diverse, professional and sustainable forest economy, and to ensure that the interests of society and those of forest owners are in harmony (section 1(2)). 38. Unless provided for otherwise, proceedings under the Act are subject to the APC (section 67(1)) (see below). 39. Associations whose aim is linked to the use and protection of forest property are not parties to the proceedings. Nevertheless, they can act as participants in the proceedings provided that they announce their participation within seven days of being informed of the relevant proceedings (section 67(4)). 40. Under section 67(5) and (6), an association referred to in section 67(4) can request that the authority concerned inform it of any administrative proceedings before that authority with potential implications for its interests, and the authority is duty bound to inform the association of any such proceedings within seven days of their commencement or, as the case may be, of the request. 41. A party to proceedings is a person whose rights and legally protected interests or duties are to be the subject matter of the proceedings or whose rights, legally protected interests or duties can be directly affected by the decision. A person who claims that his or her rights, legally protected interests or duties would be affected by the decision may also be a party to the proceedings, unless and until the opposite is established (Article 14(1)). 42. On 1 January 2004 an amendment (Law no. 527/2003 Coll.) to the Administrative Procedure Code entered into force which, inter alia, introduced the procedural category of participant in the proceedings. Under Article 15a of the amended Code, a lex specialis can stipulate the conditions in which someone other than a party to the proceedings has the right to take part in the proceedings in full or in part. That person is called a participant. Unless a lex specialis accords a participant further rights, his or her position is limited to the right to be notified when proceedings commence and of other submissions by the parties, the right to take part in an oral hearing and in an in situ inspection, and the right to adduce evidence and to add to the material underlying the decision. 43. The explanatory report (dôvodová správa) on the amendment submitted with the bill suggested that the creation of the procedural category of participant in administrative proceedings had been in response to the existing practice whereby, in particular in the area of environmental protection, associations of citizens and associations of legal entities took part in proceedings. Due to the lack of an appropriate procedural framework, for practical reasons such associations had been given the status of parties to the proceedings. However, that was contrary to the rules concerning parties, because the rights and duties of such associations had not been decided upon in the proceedings. Participation in the proceedings of persons other than the parties was advisable and would be significantly more frequent, especially in proceedings that involved public or group interests, for example in the construction of major industrial enterprises, the use of genetic technologies and the licensing of public works. 44. Chapter (Časť) 5 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) governs the administrative judiciary. In accordance with its provisions, administrative tribunals review the lawfulness of decisions taken by public administrative authorities on the basis of administrative-law actions under Section (Hlava) 2 of that Chapter and administrative-law appeals under Section 3 of that Chapter. 45. Judicial review of administrative decisions and procedures by way of administrative-law actions under Section 2 of Chapter 5 requires that the matter be resolved by a decision that has become final and binding (právoplatnosť), after all ordinary remedies have been exhausted (Article 247 § 2). 46. The parties to proceedings on administrative-law actions are the claimant and the defendant (Article 250 § 1), the former being the individual or the legal entity who alleges that, as a party to the relevant administrative proceedings, his, her or its rights have been restricted by the decision and conduct of an administrative authority. The claimant may, however, also file an administrative-law action on the grounds that he, she or it had not been treated as a party to the administrative proceedings in question when although he, she or it should have been (Article 250 § 2). 47. Details concerning the Aarhus Convention are set out below. The Parliament of the Slovak Republic agreed to accede to the Aarhus Convention on 23 September 2005 and declared that, under Article 7 § 5 of the Constitution, the Convention has priority over the Constitution. 48. The Aarhus Convention was published in the Collection of Laws under no. 43/2006 and entered into force in respect of Slovakia on 5 March 2006. 49. In an unrelated set of proceedings, relying on the Aarhus Convention, the applicant association of the present case sought recognition of its standing as a party to proceedings concerning the request of a hunting association for derogation from certain provisions of the NLP Act. The applicant association was unsuccessful before two administrative and one judicial level of jurisdiction. 50. The applicant association lodged an appeal with the Supreme Court. In dealing with that appeal, on 22 June 2009 the Supreme Court asked the Court of Justice of the European Union for a preliminary ruling on the following questions: “1. Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, given that the principal objective pursued by that international treaty is to change the classic definition of locus standi by according the status of a party to proceedings to the public, or the public concerned, as having the direct effect of an international treaty (‘self-executing effect’) in a situation where the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted Community legislation in order to transpose the treaty concerned into Community law? 2. Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, which has become a part of Community law, as having the direct applicability or direct effect of Community law within the meaning of the settled case law of the Court of Justice? 3. If the answer to the first of the second question is in the affirmative, is it then possible to interpret Article 9(3) of the Aarhus Convention, given the principal objective pursued by that international treaty, as meaning that it is necessary also to include within the concept ‘act of a public authority’ an act consisting in the delivery of decisions, that is to say, that the right of public access to judicial hearings intrinsically also includes the right to challenge the decision of an administrative body, the unlawfulness of which lies in its effect on the environment? 51. The request was registered under file no. C-240/09. 52. On 15 July 2010 Advocate General Sharpston delivered an opinion with the following conclusions: “... 101. I therefore suggest that, in answer to the questions referred by the [Supreme Court], the Court should rule as follows: (1) The questions referred are inadmissible except in so far as they relate to Article 9(3) of the Aarhus Convention. (2) It is for the national courts to determine whether Article 9(3) of the Aarhus Convention has direct effect within their own legal order in circumstances in which the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted legislation in order to incorporate that specific provision of the treaty concerned into European Union law in respect of the obligations that it imposes on the Member States. (3) Article 9(3) of the Aarhus Convention should be interpreted as including within the concept of ‘act of a public authority’ an act consisting of the delivery of a decision. The right of public access to judicial review, within the constraints permitted by Article 9(3), includes the right to challenge a decision of an administrative body which is alleged to contravene provisions of the Member State’s national law relating to the environment. If the Court should take the view that it has jurisdiction to rule on the direct effect of Article 9(3) of the Aarhus Convention: (4) Article 9(3) of the Aarhus Convention does not have direct effect as a matter of EU law.” 53. On 8 March 2011 the Grand Chamber of the Court of Justice of the European Union delivered a judgment. It held that “Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 does not have direct effect in European Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law. 54. On 7 July 2011, following the judgment of the Court of Justice of the European Union of 8 March 2011 (see the preceding paragraph), the Supreme Court quashed the challenged administrative decisions and held that, on the basis of that judgment, and with a view to ensuring effective protection of the environment, the applicant association had the right of action against administrative decisions, which may be contrary to European Union law, and that, consequently, it was to be accorded the procedural status of a party (file no. 3 Sžp/41/2009). This position has since become generally accepted. 55. The United Nations Economic Commission for Europe “Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters” (the Aarhus Convention) was adopted on 25 June 1998 and entered into force on 30 October 2001. In its Preamble, the Parties to the Convention, inter alia: - recognise that “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations” - consider that “to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledge[s] in this regard that citizens may need assistance in order to exercise their rights, - recognise that “in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, - and also recognise “the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings”. 56. Article 1 of the Aarhus Convention defines its objective and provides as follows: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” 57. Pursuant to Article 2 §§ 4 and 5, which contain definitions, “public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups, while “concerned public” means the public affected or likely to be affected by, or having an interest in, environmental decision-making. For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law are deemed to have an interest. 58. Article 6, which deals with public participation in decisions on specific activities, provides as follows: “1. Each Party: (a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I; (b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; ... 2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of: (a) The proposed activity and the application on which a decision will be taken; (b) The nature of possible decisions or the draft decision; ... (d) The envisaged procedure, including, as and when this information can be provided: (i) The commencement of the procedure; (ii) The opportunities for the public to participate; 3. The public participation procedures shall include reasonable time frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making. 4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.” 59. Article 9 concerns access to justice and provides, inter alia, that: “3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. 4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.” 60. Article 15 of the Aarhus Convention on review of compliance requires a meeting of the Parties to establish arrangements for reviewing compliance with the Convention. A Compliance Committee has been created for that purpose. 61. On 17 December 2010 the Compliance Committee adopted findings and recommendations upon completion of proceedings triggered by a non-governmental organisation that alleged that Slovakia had failed to comply with its obligations under Article 6 of the Aarhus Convention in connection with the construction of two units of a nuclear power plant. 62. One of the disputed issues was whether a 2008 construction permit was, in fact and substance, a new construction permit or rather, as treated for the purposes of the administrative proceedings at domestic level, an update of a previous construction permit of 1986. 63. In paragraph 55 of its report, the Committee stressed that “although each Party is given some discretion in [these cases] to determine where public participation is appropriate, the clause “mutatis mutandis, and where appropriate” [used in Article 6 § 10 of the Convention in relation to the use of the Convention in respect of reconsideration and update of existing operating conditions] does not imply complete discretion for the Party concerned to determine whether or not it was appropriate to provide for public participation”. 64. The Committee rather considered, in paragraph 56 of its report, that: “the clause ‘where appropriate’ introduces an objective criterion to be seen in the context of the goals of the Convention, recognizing that ‘access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns’ and aiming to ‘further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment’. Thus, the clause does not preclude a review by the Committee on whether the above objective criteria were met and whether the Party concerned should have therefore provided for public participation in the present case.” 65. The Committee found, at paragraph 57, that: “when the authority reconsidered or updated the operating conditions for an activity of such a nature and magnitude, and being the subject of such serious public concern, as this nuclear power plant, with the changes and increased potential impact on the environment as presented to the Committee, public participation would have been appropriate. This conclusion is not countered by the fact that most, if not all, changes in the 2008 construction permit lead to stricter requirements than those set in the 1986 permit. Thus, by failing to provide for public participation according to article 6, paragraphs 2 to 9, the Party concerned failed to comply with article 6, paragraph 10 of the Convention.” 66. However, dealing with a general question of the compatibility of the relevant Slovak laws with the Convention, the Committee was unable to “conclude that Slovak law on public participation and EIA in general also fails to comply with article 6 of the Convention.”
| 0
|
train
|
001-66611
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,004
|
SARAC v. TURKEY
| 4
|
Inadmissible
|
Georg Ress;Mark Villiger
|
The applicant, Ms Selal Saraç, is a Turkish national who was born in 1970 and lives in Germany. She is represented before the Court by Mr M. Demir, a lawyer practising in Germany. The facts of the case, as submitted by the parties, are as follows. On 18 September 1995 at about 2 a.m. the applicant’s house in Nusaybin was raided by police officers from the Nusaybin police headquarters in order to arrest the applicant on suspicion of PKK membership and harbouring PKK members. The applicant had been taken into custody several times in the past, namely in the autumn of 1991, on 21 March 1993 and on 15 August 1994. During the arrest she was subjected to a body search in the presence of her children, husband and other family members. The applicant, her husband and three of her relatives were put in a police vehicle and taken to a doctor for a medical examination. The doctor stated that they were in good health and they were subsequently taken to the police headquarters in Nusaybin. At 3 p.m. the same day the applicant was taken to her house by police officers in order to conduct a search. She took the police officers to the cellar of the house and showed them a bomb which had been given to her by a member of the PKK. The bomb was subsequently destroyed by bomb disposal teams. She was then taken back to the Nusaybin police headquarters. During her period of detention at Nusaybin police headquarters, the applicant was stripped naked and blindfolded. She was hosed down with cold water, hung from her arms, beaten with a police truncheon and electric shocks were administrated to her sexual organs. Two days after her arrest, the applicant was transferred to Mardin police headquarters. During her detention at Mardin police headquarters, the applicant was allegedly blindfolded, stripped naked, held under cold water, given electric shocks, beaten, and raped by a village guard and a police commissioner. She was also forced to walk in a room filled with ice. While in Mardin, the applicant was taken to a doctor at the Mardin State Hospital who did not medically examine her but gave her painkillers to relieve her pain. She was then brought back to the Nusaybin police headquarters where she was detained for eleven days during which time she was stripped naked and was interrogated every night at 1 a.m. On 6 October 1995 a statement was taken from the applicant by police officers while she was still in custody. In her statement, the applicant admitted that she had let the PKK members use her cellar as a shelter, and maintained that the bomb which was found there had been put there by another woman. On 12 October 1995 the applicant was brought before the public prosecutor. In her statement, she denied her police statement alleging that it had been taken under duress. She maintained that PKK terrorists had never stayed in her cellar and that the cellar had been designed as a shelter during the Gulf War to protect her family from any possible chemical attack by Iraq. As to the bomb found in the cellar, the applicant stated that it had been given to her by a woman whom she did not know and that she had not been aware that it was a bomb. The same day, the applicant was placed in detention on remand. On 26 October 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant together with twelve other accused persons. She was accused of aiding and abetting members of an illegal organisation, an offence defined in Article 169 of the Criminal Code. On 3 April 1996 she was released pending trial. On 6 April 1996, some three days after her release, the applicant’s house was raided by police officers from the Nusaybin police headquarters and the applicant was taken into custody. She was hung from her arms and hit repeatedly on the head with truncheons as a result of which she lost consciousness. While she was unconscious, her feet were burnt by cigarettes. Following this, she was raped with a truncheon on two occasions. She was threatened by the police officers that if she refused to work as an informer for the police, she would be killed. The applicant refused to work as an informer. She was then taken by car to an isolated place and abandoned. On 19 April 1996 the applicant went to the Human Rights Foundation where she was medically examined. Following medical examinations carried out between 22 and 24 June 1996 in two different hospitals and a Nuclear Medical Centre in Istanbul, and gynaecological and neurological tests, x-rays, thorax graphics, scintigraphic imaging and examinations by an ear, nose and throat consultant as well as a psychiatrist, the doctors drafted a report dated 15 August 1996. It was concluded that the applicant’s allegations of ill-treatment, such as post-traumatic stress, depression, marks on her feet caused by cigarette burns and a pelvic complaint, were compatible with the medical findings. On 5 September 1996 the applicant’s two legal representatives filed a complaint with the Istanbul public prosecutor. In their petition they submitted the applicant’s allegations of ill-treatment. They also gave the names of the village guard who had allegedly raped her during her police custody. On 11 December 1996 the Diyarbakır State Security Court found the applicant guilty of aiding and abetting members of an illegal organisation and sentenced her to three years and nine months’ imprisonment. The applicant’s appeal against the judgment was rejected by the Court of Cassation on 17 November 1997. The Government submitted that the applicant was taken into custody on two occasions from 23 September to 18 October 1994 and from 18 September to 12 October 1995 respectively, on suspicion that she was aiding and abetting members of the PKK. However the Government denied that the applicant had been arrested on 6 December 1996. In this respect they submitted that the custody records did not mention her name. Concerning the applicant’s police custody from 18 September until 12 October 1995, the Government maintained that she was held in Nusaybin Police Headquarters from 18 September to 19 September and then she was transferred to Mardin Police Headquarters, where she was held until 1 October 1995. She was subsequently transferred back to Nusaybin Headquarters, where she was held until 12 October 1995. The Government further contended that the applicant was taken for a medical examination on 18 September 1995 and, according to the medical report, there was no sign of injury on her body. It was noted that she had a heart condition. Another medical report was issued on 12 October 1995 by the Nusaybin Health Clinic, which concluded that the applicant had not suffered physical abuse. The Government further maintained that the applicant had lodged a criminal complaint with the Istanbul public prosecutor on 23 August 1996. On 23 September 1996 the public prosecutor requested that the Nusaybin Police Headquarters submit information about the applicant’s alleged police custody, and that all relevant doctor reports and official documents be conveyed to the public prosecutor’s office. Furthermore, on 10 October 1996 the public prosecutor took a statement from F.A., a village guard, who was accused by the applicant of having raped her. F.A. denied the charges against him. On 17 December 1996, the applicant’s lawyer gave a statement to the public prosecutor, and asserted that she would convey the relevant medical reports and other evidence in the shortest possible time. Despite being notified, the applicant refused to come to the public prosecutor’s office to give a statement. Moreover, the documents promised by the applicant’s representative were never conveyed to the public prosecutor. Accordingly, on 3 March 1997 the public prosecutor delivered a decision of non-jurisdiction on account of insufficient evidence. The applicant did not appeal against this decision. The Government further submitted that on 18 September 1995 a search was conducted in the applicant’s house, as a result of which a shelter and a bomb were found. On 6 October 1995 the applicant gave a statement to the police, and described in detail her involvement with the PKK. On 12 October 1995 the applicant was taken before the public prosecutor, and subsequently before the Nusaybin Magistrate’s Court in Criminal Matters. She was remanded in custody. With an indictment dated 27 October 1995 the Diyarbakır public prosecutor instigated criminal proceedings against the applicant and accused her of aiding and abetting an illegal organisation under Article 169 of the Criminal Code. On 3 April 1996 the applicant was released pending trial. On 11 December 1996 the first instance-court found the applicant guilty as charged and sentenced her to three years’ and nine months’ imprisonment. On 17 November 1997, the Court of Cassation rejected the applicant’s request for appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with domestic law and general principles of law. A description of the domestic law may be found in the Nuray Şen v. Turkey decision (no. 41478/98, 30 April 2002).
| 0
|
train
|
001-5700
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,001
|
PORTER v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British national, born in 1941 and living in Buckinghamshire. She is represented before the Court by Mr T. Christie of the National Romani Rights Association. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and her husband, who are both gypsies, purchased a plot of land in 1984 and moved to live there in their caravans. Applications made for planning permission for either of their caravans or for a dwelling were refused by the South Buckinghamshire District Council (the Council). The site lay within the Green Belt. The applicant has been involved in procedures challenging the refusal of planning permission for some years. In the latest appeal against the refusal of planning permission, the Planning Inspector held in his decision of 6 October 1998 inter alia “4. PPG2 makes it clear that development not falling within the categories of exceptions against development in the Green Belt is “inappropriate” development and should not be approved except in very special circumstances. Para. 3.2 of PPG2 makes it clear that the very special circumstances to justify inappropriate development will not exist unless the harm by reason of the inappropriateness and any other harm is clearly outweighed by other considerations... 5. Having regard to the above established planning policy background and the representations made, and from my inspection of the appeal property and its surroundings, I consider that the main issue in this case is whether the retention of the mobile home and its associated outbuildings would be inappropriate development in the Green Belt, and if so whether there are any very special circumstances which outweigh the harm caused by such development. 6. Inappropriate development comprises all development except for a limited number of specified exceptions. The proposed retention of a new residential unit and the associated outbuildings does not constitute one of the identified exceptions... 7. I turn now to whether there are very special circumstances in this case which outweigh the harm caused by such inappropriate development. You indicate... the fact that the development is unobtrusive in form and... the gypsy status of the <applicant and her husband>. ... 9. The appeal site is located close to the boundary between the Green Belt and the north-western tip of the developed area of Iver. Given this location, I accept the Council's view that it is particularly vulnerable to pressure from the expansion of this adjoining area. As such, the continued openness of the site and that of the tract of land of which it forms part is of considerable importance in ensuring that the adjoining area does not expand and coalesce with the developed area of Slough to the west. Although the area contains a number of existing buildings it remains predominantly rural in character and largely undeveloped. However <the applicant's> development, by virtue of its design, nature and siting constitutes a cluttered and urban form of development. This I consider... is both harmful to the rural and open character of the Green Belt and to the visual amenities and landscape of this part of Colne Valley Park. ... 10. ...With respect to the accommodation needs of <the applicant>, I have taken into account that there are 4 authorised gypsy caravan sites in South Bucks consisting of a total of 66 pitches having a capacity for accommodating 132 caravans. In January 1998, 109 caravans of an estimated 63 families were parked on these pitches. 13 ...I do not find the fact of <the applicant's> infirmity or of the suitability of horse-keeping and breeding in the countryside to be very special reasons for allowing the retention of residential use in the Green Belt. There is no convincing reason why the use could not be carried out and secure permanent accommodation found elsewhere on land outside the Green Belt. 16. I have taken into account all other matters raised in the written representations including the support given to <the applicant> locally but there is nothing of sufficient substance to outweigh those considerations which led me to the decision in this case. 17. For the above reasons... I hereby dismiss the appeal...” The Council took proceedings to obtain an injunction against the applicant and her husband. On 27 January 2000, the High Court ordered the applicant to remove the caravans. Following the applicant's appeal, the Court of Appeal on 6 June 2000 adjourned the matter pending further argument and with a view to reviewing the matter in the light of the Human Rights Act 1998 entering into force on 2 October 2000. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State's decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector's decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. ... 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: - to check the unrestricted sprawl of large built-up areas; - to prevent neighbouring towns from merging into one another; - to assist in safeguarding the countryside from encroachment; - to preserve the setting and special character of historic towns; and - to assist in urban regeneration by encouraging the recycling of derelict and other urban land. ... 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. ... 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. ... 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”
| 0
|
train
|
001-84482
|
ENG
|
HRV
|
CHAMBER
| 2,008
|
CASE OF PILCIC v. CROATIA
| 3
|
Violation of Art. 3;Non-pecuniary damage - award
|
Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens
|
4. The applicant was born in 1951 and is presently serving a prison sentence in Lepogalva State Prison. 5. Following the institution of criminal proceedings against the applicant, he was apprehended on 31 July 2001 and placed in pre-trial detention in Zagreb County Prison (Okružni zatvor Zagreb), where he had stayed until 24 February 2003. After that date, having being convicted of murder, attempted murder, forgery and robbery, he was sent to serve the remainder of his sentence of thirty years and six months' imprisonment in Lepoglava State Prison. 6. According to medical documentation submitted by the parties, the applicant suffers from kidney stones, varicose veins, liver damage and a number of spinal ailments such as scoliosis (curvature of the spine), lordosis (inward curve of the lower back), discopathy (cervical disc injury) and discarthrosis (structural and functional failure of the discal joint). 7. The applicant's medical record, kept in Lepoglava State Prison, and additional medical documentation submitted by the parties provides the following information: 8. A copy of a medical report drafted at Zagreb Prison Hospital on 24 January 2002 specifies that the applicant was suffering from one stone in his right ureter (ureters are ducts that carry urine from the kidneys to the urinary bladder) measuring about 3-4 millimetres, and two stones in his left kidney, each measuring about 1.5 centimetres. It was recommended that the applicant be given painkillers and be seen by a urologist. 9. After being incarcerated in Lepoglava State Prison the applicant was seen by a prison doctor for his kidney and spinal ailments on five occasions during the period from 28 February to 28 May 2003. The applicant was regularly given urological tea for his kidney ailment and, in addition, on each occasion he was given various spasmolytics to prevent or relieve spasms. For the pain associated with his spinal ailments, the applicant was prescribed painkillers, including two different types of soothing gels. On 28 May 2003 the applicant was seen by a urologist in Varaždin, who found a stone in the applicant's left kidney and recommended his hospitalisation. 10. From 29 May to 4 July 2003 the applicant was hospitalised in Zagreb Prison Hospital, where a medical report was drafted, specifying that the applicant was suffering from three stones in his left kidney, measuring 1 centimetre each. It was recommended that surgery be carried out. The report notes that the applicant had been put on the waiting list of the Rebro Hospital in Zagreb and that the exact date of the operation was yet to be determined. 11. From his return to Lepoglava State Prison in July 2003 until 26 September 2005 the applicant was seen by the prison doctor on sixty-five occasions; on twenty of these he was given spasmolytics for the pain associated with his kidney ailment. He was also regularly given urological tea as well as painkillers for his spinal ailment. 12. The applicant was again hospitalised in Zagreb Prison Hospital from 26 to 30 September 2005. A medical report of 30 September 2005 specifies that the kidney stones from which the applicant was suffering required surgery, although not urgently, as they could not be treated by ultrasound waves (lithotripsy). 13. From his return to the prison until 31 March 2006 the applicant was seen by the prison doctor on twenty-nine occasions. Within that period he was given spasmolitycs for the pain associated with his kidney ailment on fourteen occasions. On 4 November 2005 the applicant underwent urological tests in the Zagreb Prison Hospital laboratory. On 17 November 2005 the applicant refused to go to Zagreb Prison Hospital. On 20 February 2006 a nurse from the prison reported that, during a telephone conversation with a surgeon from Zagreb Prison Hospital, she had been told that the applicant should not be sent there because they were not going to carry out the surgery. On 2 March 2006 the applicant again underwent urological tests in Zagreb Prison Hospital. 14. On 31 March 2006 the applicant was seen by a urologist in Varaždin Hospital. The diagnosis of kidney stones was confirmed and surgery in this respect was recommended, although not urgently. 15. From his return to the prison until 26 October 2006 the applicant was seen by the prison doctor on thirty-four occasions. Within that period he was given spasmolytics for his kidney aliment on six occasions. On several occasions he asked that the recommended surgery in connection with his kidney ailment be carried out. 16. The applicant was again hospitalised in Zagreb Prison Hospital from 26 October to 17 November 2006. A report drawn on the latter date specifies that the applicant was suffering from kidney stones and that there was no possibility of carrying out the relevant operation in the Zagreb Prison Hospital; it could only be carried out in an ordinary hospital. The applicant had been offered surgery for his varicose veins in Zagreb Prison Hospital, which he had refused, insisting on his return to the prison. 17. On his return to the prison the applicant was seen by the prison doctor on twenty-six occasions, mostly in connection with his spinal ailment. On one occasion he was given spasmolytics for his kidney ailment. He was prescribed a supplementary diet (pojačani obrok) from 1 December 2006 until 1 February 2007 and from 4 May to 1 August 2007. 18. On 30 August 2006 the applicant petitioned both the Varaždin County Court judge responsible for the execution of sentences and the Head Office of the Prison Administration complaining about the lack of adequate medical care for his various health problems, including those mentioned in paragraph 6 above. 19. The Head Office of the Prison Administration replied to the applicant's allegations by a letter of 12 December 2006, the relevant parts of which read as follows: “... Your medical record shows that since your arrival at Lepoglava State Prison on 24 February 2003, you have received regular treatment by the prison doctor. On 28 February 2003 it was noted that you suffered from kidney stones and were on that account twice hospitalised in [Zagreb] Prison Hospital. It was further noted that you suffered from back-pain and varicose veins on your right shin. During your hospitalisation from 29 May to 4 July 2003 it was recommended that surgery be carried out and you were put on the waiting list of the Rebro Hospital in Zagreb. Owing to frequent pain in the kidney area you were again hospitalised in [Zagreb] Prison Hospital from 26 to 30 September 2005 where a specialist established that your kidney stones could be treated by ultrasound. You continued to receive regular treatment by the prison doctor and were prescribed adequate medical therapy. On 17 November 2005 you refused to be hospitalised and said that you would report when you wished to be hospitalised. Since you had refused hospitalisation, on 20 February 2006 it was communicated from [Zagreb] Prison Hospital that you were not going to be operated and it was recommended further that you be seen by a urologist in Varaždin. A prescription was issued for consultation with a urologist and prior laboratory tests. Laboratory tests showed the presence of blood in urine and signs of liver damage. On 31 March 2006 you were seen by a urologist who found alterations in your kidneys, but established no need for an urgent surgical intervention. A CT [computer tomography] of your abdomen was planned and carried out on 20 April 2006. It showed no pathological alterations. You were twice seen by an internist in Lepoglava [State] Prison, who recommended that arrangements be made between the prison authorities and [Zagreb] Prison Hospital. On 21 June 2006 you were sent for an X-ray examination in connection with frequent back-pain. Discopathy and discarthrosis were diagnosed. Deforming spondylosis was in an advanced stage. On 16 October 2006 a prescription for your hospitalisation in [Zagreb] Prison Hospital was issued, but you refused hospitalisation. Owing to frequent pain in your left kidney and your back you agreed to be hospitalised in [Zagreb] Prison Hospital from 26 October to 17 November 2006, when laboratory tests were carried out as well as an ultrasound examination of your liver, cholecyst, bile ducts, pancreas, spleen and kidneys. An X-ray examination showed that your heart and lungs were healthy. An X-ray examination of your abdomen showed two round calcareous shadows in the lower pole of your left kidney, which was an indication of the [presence of] stones. Laboratory tests showed further even and sufficient urinary flow in both kidneys. The ureters had adequate flow, lumen width and porosity; the urinary bladder was normal. The previously recommended surgery, despite having been scheduled for your stay at the hospital, was not carried out. Possible surgery on your varicose veins was not carried out since you refused it, and you were returned to the prison at your request. A CT [computer tomography] of your spine was recommended and the exact date was to be determined. A prescription in that respect was issued on 20 November 2006. In our opinion, regular [medical] checks are needed in the Lepolgava [State] Prison infirmary as well as regular intake of the prescribed therapy, and an arrangement for another hospitalisation in [Zagreb] Prison Hospital is soon to take place with a view to carrying out the surgery for your kidney stones. In view of the above [considerations] it has been established that you received adequate medical care in Lepoglava [State] Prison.” 20. The judge responsible for the execution of sentences likewise answered the applicant's allegation by a letter of 13 December 2006, the relevant parts of which read as follows: “As to your complaint lodged on 31 August 2006 ... concerning your allegations that you had been denied hospital treatment in connection with a number of diseases ... I reply as follows: ... The medical documentation submitted shows that, as early as 2003, you were hospitalised in [Zagreb] Prison Hospital in connection with kidney stones, pain in the back and varicose veins on your right shin. It was recommended that surgery be carried out, you were put on the waiting list of the Rebro Hospital [in Zagreb] and that the exact date of the operation was to be communicated. Owing to repeated pain in the kidney area and in order to continue the treatment, in 2005 it was established that the stones were to be broken by ultrasound. You then reported to the Lepoglava [State] Prison infirmary and received regular therapy for pain. On 17 November 2005 you were offered hospitalisation. However, it was communicated from Zagreb Prison Hospital not to send you there because you were not to be operated. On 31 March 2006 you were seen by a urologist in Varaždin, who established the cause of your kidney ailment and indicated that there was no need for urgent surgery. After that arrangements for your hospitalisation in [Zagreb] Prison Hospital took place and you were hospitalised from 26 October to 17 November 2006. There you were examined and laboratory [tests] showed toxic damage to your liver and the presence of stones in your kidneys. An x-ray showed that your heart and lungs were healthy and that you had so-called nephroliths in your kidneys. According to [Zagreb] Prison Hospital, all treatment available there had been exhausted and in order to continue your treatment in an outside hospital it was necessary for an agreement to be reached between the prison and the hospital. There was a possibility that surgery be carried out in [Zagreb] Prison Hospital at the same time as surgery for your varicose veins, which you declined. You were returned to the prison where it was recommended that a CT [computer tomography] of lumbosacral spine be carried out, and a prescription was issued in that connection on 20 November 2006. The doctor also recommended regular checks in the prison infirmary and regular intake of prescribed therapy, and that an arrangement be made between the prison and the [Zagreb] Prison Hospital for your hospitalisation and eventual surgery for the kidney stones. Therefore, your complaints concerning the alleged denial of hospital treatment are unfounded because the medical documentation shows that care was taken of your [need for] ambulant and hospital treatment. Your allegations concerning the prison authorities' hatred towards you are entirely unfounded. ...” 21. The applicant also submitted a copy of a letter of 15 September 2006 drafted by the registry of the Constitutional Court, stating that his application lodged with that court on 12 September 2006 had not been suitable for examination. 22. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows: “No one shall be subjected to any form of ill-treatment...” 23. The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, while the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows: “(1) Inmates shall have the right to complain against an act or decision of a prison employee. (2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...” “(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” “(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...” 24. The Committee of Ministers Recommendation No. Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies): Section 46.1 of the recommendation provides as follows: “Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.”
| 1
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train
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001-79633
|
ENG
|
NOR
|
ADMISSIBILITY
| 2,007
|
MJELDE v. NORWAY
| 3
|
Inadmissible
|
Christos Rozakis
|
The applicant, Mr Per Harald Mjelde, is a Norwegian national who was born in 1965 and lives in Oslo. He was represented before the Court by Mr V. Strømme, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney at the Attorney General’s Office (Civil Affairs). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the Chief Executive Officer and a member of the Governing Board of the company Næringslivets Innkjøpsorganisasjon Ltd, which was taken into bankruptcy in 1996. In this context, on 25 November 1997, the Oslo Probate and Bankruptcy Court (skifterett) inter alia found (i) that the applicant had failed to operate advance tax deduction through a separate bank account and had been grossly negligent in this respect, in breach of sections 4, 5, 5A and 51 of the Tax Payment Act 1952 (skattebetalingsloven); (ii) that there was reasonable ground for suspecting the applicant of having taken up a loan in the company in breach of sections 12-10 and 17-1 last sub-section of the Limited Liability Companies Act 1997 (aksjeselskapsloven) and (iii) embezzlement of the estate in breach of Articles 281 and 283A of the Penal Code. The Probate and Bankruptcy Court found reasonable ground for suspicion that such criminal acts as mentioned in section 142(1) of the Bankruptcy Act 1984 (konkursloven) had occurred. Moreover, under section 142(2) it found that his business conduct had been inappropriate to such a degree as to make him unsuited to establish a new limited liability company or to take part in such a company. Therefore, under section 142(1) and (2), the court ordered that he be disqualified (konkurskarantene) for a period of 2 years from establishing or taking on responsibilities for the governing board of such a company. In addition, under section 142(4) it extended the order to prohibiting the applicant from continuing existing responsibilities of this nature. The Probate and Bankruptcy Court’s judgment contained the following reasoning: “Pursuant to section 142(1) item 1, see sixth sub-section, item 2, of the Bankruptcy Act, a disqualification order may be imposed on [the applicant] as day-to-day manager of the company if there is ‘reasonable ground’ for suspecting him of a criminal act in connection with the bankruptcy or the activities that led to insolvency. Further, a disqualification order may be imposed pursuant to section 142 (1) item 2 ... if there is reason to presume that, on the ground because of unsound business conduct, the person is unfit to establish a new company, etc. There are sufficient grounds to impose a disqualification order if one of the conditions is fulfilled. The taxation legislation contains provisions requiring separate tax deduction accounts in order to ensure that companies do not make use of funds that belong to the public authorities. Under sections 4, 5 and 5a of the Tax Payment Act, the amounts that are to be paid into tax deduction accounts are the part of taxable remuneration which is not to be retained by persons liable to pay tax (i.e. employees, etc), but which is to be paid as advance tax deductions. The employer has the responsibility for collecting advance tax deductions from employees. In principle, advance tax deductions should not go through a company’s operating accounts, but be paid directly into a tax deduction account, see section 11 of the Tax Payment Act. It is therefore insufficient to argue that there was adequate liquidity in the company both before and after the bankruptcy. The point is not whether the company was in a position to meet its obligations, but whether the amounts in question had in fact been set aside. In this connection, it is important to note that the company never had any formal right to make use of the advance tax deductions. Any exemption from criminal liability would have to be based on the grounds that the amounts that were not set aside were in fact paid at the correct time, see section 51, subsection 3 of the Tax Payment Act. This is not the case here. The requirements for strict criminal liability under section 51 of the Tax Payment Act must be regarded as being fulfilled. With respect to whether [the applicant]’s actions fulfil the subjective requirements for liability, section 51 of the Tax Payment Act lays down intent or gross negligence. It is established that [the applicant], as general manager, was grossly negligent in not ensuring that the payments in question were actually made. The fact that he delegated the task of deducting tax payments in advance does not exempt him from criminal liability. As regards the withdrawal of funds for personal use, the court finds that there is reasonable ground for suspecting that loans were raised in contravention of section 12-10 of the Limited Liability Companies Act. It has been claimed that the loans in question were within the framework of the company’s free equity, but the court cannot see that any security has been provided. This is an offence that is subject to penal sanctions, see section 17, last sub-section, of the Limited Liability Companies Act. The loans were advanced to [the applicant], and the requirements for both strict and subjective criminal liability must be considered to have been fulfilled. Furthermore, the court finds that there is just cause for suspecting criminal withholding of assets from the estate pursuant to Article 281 of the Penal Code. Under Article 281, an attempt to withhold assets is sufficient to incur criminal liability. The court finds that there is reasonable ground for suspecting [the applicant] of attempting to withhold assets from the estate, since it is a fact that the computer equipment has not been transferred to the estate as required. Here too, the requirements for both strict and subjective liability are found to be fulfilled. As regards the question of embezzlement of funds paid to the company by Stavanger Energi, the court notes that this has been reported to the police by their letter of 6 November 1997. This letter indicates that the police consider there to be reasonable ground for suspecting [the applicant] of criminal acts. As regards whether the company operated at the creditors’ expense and how this relates to Article 283 A of the Penal Code, the court finds that in retrospect, it can be established that the company did operate at the creditors’ expense. However, the court does not have sufficient information to state with certainty whether there is reasonable ground for suspecting that the requirements for subjective criminal liability for violation of Article 283 A of the Penal Code are fulfilled. However, the court has found that there is reasonable ground for suspecting a number of other offences, and therefore does not consider it necessary to make a final decision on this question in order to determine whether or not a disqualification order should be imposed. Another question is whether this type of short trading in electricity can be considered to be sound business practice. In this connection, we cannot set such strict standards for documentation of [the applicant]’s subjective view of the matter. The court will return to this question below. The court finds that there is reasonable ground for suspecting [the applicant] of offences such as are mentioned in section 142(1) item 1, of the Bankruptcy Act. It finds that the balance of probability is that [the applicant] is liable to punishment for one or more of the acts to which the Administrators has called attention. Thus, the conditions for imposing a disqualification order on [the applicant] pursuant to section 142(1) item 1, of the Bankruptcy Act are fulfilled. The court finds that business conduct in this case has been so unsound that [the applicant] must be considered unfit to form or take part in the management of a new company, see section 142 (1) item 2, of the Bankruptcy Act. Particular importance is attached in this respect to the general disregard shown for companies legislation. This applies in particular to the provisions of the Limited Liability Companies Act relating to withdrawal of funds for personal use and borrowing from one’s own company. Furthermore, a number of the financial transactions made in the company’s name appear to have been carried out in [the applicant]’s personal interest. These include the purchase of a number of vehicles not conventionally used by a limited liability company of this type. For example, expensive motorcycles, sports cars and pleasure boats were purchased. In connection with an evaluation of business conduct, it is of little importance whether these were intended for use by [the applicant] himself or by his employees. In the court’s opinion, such transactions do not give a more favourable impression of the way the company was managed. Despite the way the power market developed in 1996, [the applicant] allowed Næringslivets Innkjøpsorganisasjon to continue trading in electricity, even though the company did not have contracts for purchases of electricity to cover its sales. The company did not have sufficient funds for these transactions. The transactions thus became speculation at the purchaser’s risk, and in the final analysis at the purchaser’s expense. The company sold goods that it knew or should have known could not be delivered to the purchaser if electricity prices continued to rise. Short trading of this kind is acceptable if the company is in a strong enough financial position, which was not the case here. If the company does not have sufficient funds, its customers incur losses because they have to go out on the market and buy electricity at a higher price. In the court’s opinion, this cannot be in accordance with sound business practice. [The applicant] has a history of several bankruptcies and is involved in several bankruptcy proceedings at present. He can therefore be described as a serial bankrupt, so that he belongs to the category which disqualification is specifically intended to deal with. The court has found no circumstances indicating that it would be unreasonable to impose a disqualification order. In the assessment of reasonableness it is important that the conditions of both item 1 and item 2 of section 142 (1) of the Bankruptcy Act are deemed to be fulfilled. Nor can the court see that disqualification would be particularly unreasonable for [the applicant] on the grounds that he considers himself to be an entrepreneur and claims that disqualification would deprive him of the right to work. A disqualification order does not prohibit a person from working. [The applicant] could take up employment in a company or establish a company with unlimited liability to its creditors. The reason for issuing a disqualification order is that [the applicant] is considered unfit to establish a limited liability company. Since the conditions of section 142(2) item 1, are fulfilled, the court further finds that, pursuant to section 142(4) of the Bankruptcy Act, [the applicant] should be removed from any existing offices in the management of companies, and he is therefore obliged to withdraw from any positions such as those mentioned in section 142 (3) and (5) of the Bankruptcy Act.” This was the third time a disqualification order had been imposed on the applicant, who had been involved in several bankruptcies in the past. On 4 March 1998 the Borgarting High Court (lagmannsrett) rejected an appeal by the applicant against the Probate and Bankruptcy Court’s judgment and upheld the latter’s findings under section 142(1) and (2) and, apparently also under (4), of the Bankruptcy Act. The High Court stated: “The High Court does not find it established that the Probate and Bankruptcy Court has based its decision on erroneous facts or that the decision suffered from other errors that could lead to it being quashed. Against the background of what emerges from the Administrators’ report, the High Court agrees with the Probate and Bankruptcy Court that there is reasonable ground for suspecting [the applicant] of breach of several penal provisions. It relates to breach of Articles 283A(2) item 2 and 281 of the Penal Code, section 51 of the Tax Payment Act and the taking up of loan in breach of section 12-10, see 17-1 last sub-section, the Limited Liability Companies Act. The conditions for disqualification under section 142(1) item 1 are therefore present, as the criminal offences refer to the bankruptcy and the activities that led to insolvency. The High Court further agrees with the Probate and Bankruptcy Court that the management of the company at issue can be characterised as so indefensible that [the applicant] must be deemed unsuited to form a new liability company and take part in such a company, with the meaning of section 142 (1) item 2. Having regard to the debtor’s conduct and the circumstances as a whole, the High Court finds that it seems reasonable, under section 142 (2), to subject him to a disqualification order. Reference is made to the Probate and Bankruptcy Court’s extensive reasoning, with which the High Court agrees in the main, and to the fact that [the applicant], according to the Administrators’ report, has been insolvent in also connection with a number of bankruptcies in the past and has also previously been subjected to disqualification. Therefore the Probate and Bankruptcy Court’s decision is upheld.” The applicant did not appeal against the above judgment by the High Court which became final. Subsequently, on 8 September 1999, the applicant was charged on four counts of aggravated embezzlement inter alia in breach of Articles 255, 256, 281 and 288 of the Penal Code; section 2(2) of the Value Added Tax (VAT) Act 1969 (merverdiavgiftsloven); and section 51 of the Tax Payment Act. On 16 November 2000 he was in addition charged of aggravated breach of confidence (grovt utroskap) under Articles 275 and 276 of the Penal Code. On 27 April 2001, the Oslo City Court (byrett) acquitted the applicant of all but one of the charges mentioned above, namely a charge of aggravated embezzlement, and sentenced him to 2 years’ imprisonment and to loss for 5 years of his right to run a business or to occupy a leading position in a company or be a member of a company board (Article 29(2) of the Penal Code). On appeal by both the prosecution and the defence, the High Court, by a judgment of 11 October 2002, increased the sentence to 3 years, finding the applicant guilty also on the additional count of aggravated breach of confidence. In his appeal to the Supreme Court the applicant requested, firstly, that the case be dismissed (avvist), arguing with reference to Article 4 of Protocol No. 7 to the Convention that the disqualification order barred the subsequent prosecution in relation to the same matters. Secondly, the applicant appealed against his conviction for aggravated embezzlement under Articles 255 and 256 of the Penal Code, challenging the High Court’s interpretation of the law and reasoning. On 23 September 2003 the Supreme Court rejected both of his appeal grounds. In so far as the submission under Article 4 of Protocol No. 7 was concerned the Supreme Court, referring to the reasoning in its judgment pronounced in a similar case on the same date, that the imposition of the disqualification order under sections 142(1), (2) and (4) did not bar subsequent prosecution and conviction. The parallel judgment became the subject of an application (no. 12277/04) lodged under the Convention by Mr Yngvar Storbråten against Norway, which is being dealt with simultaneously with the present case. An English translation of the Supreme Court’s reasoning is reproduced in the Court’s decision in the case of Mr Storbråten, delivered on the same date as the present decision. In so far as relevant, section 142 of the Debt Reorganisation and Bankruptcy Act of 8 June 1984 No. 58 (the Bankruptcy Act) read: Section 142 -Conditions for imposing a disqualification order “If a debtor’s estate is the subject of bankruptcy proceedings, the district court may impose a disqualification order on the debtor if 1) there is reasonable ground for suspecting the person concerned of a criminal act in connection with the bankruptcy or the activities that led to insolvency, or 2) if it must be presumed that for reasons of unsound business conduct, the person in question is unfit to establish a new company or to serve as a director or general manager (managing director) of such a company. In taking a decision on this matter, importance shall be attached to whether, having regard to the debtor’s conduct and the circumstances as a whole, it appears reasonable to impose a disqualification order. The imposition of a disqualification order means that, for a period of two years from the opening of bankruptcy proceedings, the debtor may not establish such a company as mentioned in the fifth sub-section, or undertake the office or de facto exercise the powers of a member or deputy member of a board of directors or managing director of such a company. The district court may decide that the two-year period shall start from the date when the court takes its decision. In cases mentioned in the first sub-section, item 1, the district court may decide that disqualification shall also entail that the debtor shall be removed from any such offices as mentioned in the third sub-section held in such companies as mentioned in the fifth sub-section. The term company in sub-sections 3 and 4 means a limited liability company, a public limited liability company, a branch office of a foreign company, a business foundation, a housing construction cooperative, a housing co-operative, a company aimed at promoting its members’ consumer interests (consumer co-operative), a mutual insurance company or a State company.” For a summary of the legislative history of the provisions on disqualification under Norwegian law, reference is made to paragraphs 21 to 31 of the Supreme Court’s judgment quoted in the above-mentioned decision in the parallel Storbråten case. The Government provided some additional information, inter alia what is summarised here below. In the individual assessment of reasonableness to be carried out under section 142(2), account was to be had to such factors as the cause of the bankruptcy, the debtor’s conduct during the bankruptcy proceedings and the time element. In the event of a significant and unwarranted delay from the opening of the bankruptcy proceedings until the submission of a request for a disqualification order, the court might conclude that it would be unreasonable to impose a disqualification order. In the preparatory works to the Bankruptcy Act 1984, the Ministry of Justice had stressed that the rules would make it possible to stop persons who repeatedly were involved in limited liability companies which went bankrupt, and where there was reason to suspect improper business conduct. It had also been emphasised that disqualification orders should function as a supplement to loss of entitlement (rettighetstap), a form of punishment pursuant to Article 29 of the Penal Code. In this context, the Ministry had pointed to the advantages of the fact that a disqualification order could be imposed shortly after the opening of the bankruptcy proceedings, whilst it normally would take longer to investigate and prosecute possible criminal offences. The possibility of swift action was necessary to achieve the preventive purpose of the measure. The duration of disqualification period, ordinarily two years, could be extended if the public prosecutor in a criminal case had requested or was contemplating requesting the trial court to sentence the person in question to a loss of entitlement pursuant to the Article 29 of the Penal Code. The disqualification period could then be extended until the court had decided the criminal case. The competent court could remit a disqualification order if any of the parties so requested and there was relevant new information. If a person subjected to a disqualification order was later acquitted in criminal proceedings for an offence which constituted the basis for a disqualification order, or further investigation showed that no such criminal offence had been committed, the public prosecutor was to request that the disqualification order be lifted (Norsk Retstidende 2002-789, Appeals Leave Committee of the Supreme Court). A disqualification order could be imposed by a court of first instance (tingretten) or by the probate and bankruptcy courts (skifteretten). Such a measure was usually taken on the basis of written proceedings. However, the parties had the right to request an oral hearing. In his or her report to the probate and bankruptcy court, the liquidator was to provide information on whether, in his or her opinion, there were circumstances suggesting that a disqualification order should be imposed. Both the bankruptcy estate (represented by the liquidator) and the prosecuting authority had a right to intervene as parties in the proceedings concerning the disqualification order. The opposing party would be the debtor, board member etc. against whom the order would apply. It was rare that the prosecution or the bankruptcy estate intervened as a party to the proceedings. The court’s decision would, accordingly, normally be taken only on the basis of the information and recommendation in the liquidator’s report, and the information and objections provided by the defendant. Under section 143A of the Bankruptcy Act, a failure to comply with a disqualification order was a criminal offence punishable by up to four months’ imprisonment and/or fines.
| 0
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train
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001-72317
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ENG
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CZE
|
CHAMBER
| 2,006
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CASE OF D.H. AND OTHERS v. THE CZECH REPUBLIC
| 2
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No violation of Art. 14+P1-2
| null |
8. The applicants’ details are set out in the Appendix. 9. Between 1996 and 1999 the applicants were placed in special schools (zvláštní školy) in Ostrava, either directly or after a period in an ordinary primary school (základní školy). Special schools are a category of specialised school (speciální školy) and are intended for children with learning disabilities who are unable to attend “ordinary” or specialised primary schools. By law, the decision to place a child in a special school is taken by the head teacher on the basis of the results of tests to measure the child’s intellectual capacity carried out in an educational psychology and child guidance centre and requires the consent of the parent or legal guardian of the child. 10. The material before the Court shows that the applicants’ parents had consented to and in some instances expressly requested their children’s placement in a special school. A written decision in the appropriate form was issued by the head teachers of the schools concerned and the applicants’ parents were notified of it. The decisions contained instructions on the right to appeal, a right which none of those concerned exercised. 11. On 29 June 1999 the applicants received a letter from the school authorities informing them of the possibilities available for transferring from a special school to a primary school. It appears that four of the applicants (nos. 5, 6, 11 and 16) were successful in aptitude tests and now attend ordinary schools. 12. In the review and appeals procedures referred to below, the applicants were represented by a lawyer, acting on the basis of signed written authorities from their parents. 13. On 15 June 1999 all the applicants apart from applicants nos. 1, 2, 10 and 12 (see Appendix) asked the Ostrava Education Authority (Školský úřad) to reconsider, outside the formal appeal procedure, the administrative decisions to place them in special schools (přezkoumání mimo odvolací řízení). They argued that their intellectual capacity had not been reliably tested and that their representatives had not been sufficiently informed of the consequences of consenting to their placement in a special school. They therefore asked the Education Authority to revoke the impugned decisions, which they maintained did not comply with the statutory requirements and infringed their right to education without discrimination. 14. On 10 September 1999 the Education Authority informed the applicants that, as the impugned decisions complied with the legislation, they did not satisfy the conditions for bringing proceedings outside the appeal procedure. 15. On 15 June 1999 applicants nos.1 to 12 in the Appendix lodged a constitutional appeal in which they complained, inter alia, of de facto discrimination in the general functioning of the special education system. In that connection, they relied, inter alia on Articles 3 and 14 of the Convention and Article 2 of Protocol No. 1. While acknowledging that they had not appealed against the decisions to place them in special schools, they alleged that they had not been sufficiently informed of the consequences of placement and argued (on the question of the exhaustion of remedies) that their case concerned continuing violations and issues that went far beyond their personal interests. In their grounds of appeal, the applicants explained that they had been placed in special schools under a practice that had been established in order to implement the relevant statutory rules. In their submission, that practice had resulted in de facto racial segregation and discrimination that was reflected in the existence of two independent educational systems for members of different racial groups, namely special schools for the Roma and “ordinary” primary schools for the majority of the population. That difference in treatment was not based on any objective and reasonable justification, amounted to degrading treatment and had deprived them of the right to education (as the curriculum followed in special schools was inferior and pupils in special schools were unable to return to primary school or to obtain a secondary education other than in a vocational training centre). The applicants argued that they had received an inadequate education and an affront to their dignity and asked the Constitutional Court (Ústavní soud) to find a violation of the rights they had relied on, to quash the decisions to place them in special schools, to order the respondents (the special schools concerned, the Ostrava Education Authority and the Ministry of Education) to refrain from any further violation of their rights and to restore the status quo ante by offering them compensatory education. 16. In their written submissions to the Constitutional Court, the special schools concerned pointed out that all the applicants had been enrolled on the basis of a recommendation from an educational psychology and child guidance centre and with the consent of their representatives; furthermore, the representatives had been duly informed of the relevant decisions and none of them had decided to appeal. According to the schools, the applicants’ representatives had been informed of the differences between the special-school curriculum and the primary-school curriculum. Regular meetings of teaching staff were held to assess pupils (with a view to their possible transfer to primary school). They added that some of the applicants (nos. 5 to 11 in the Appendix) had been advised that there was a possibility of their being placed in primary school. The education authority pointed out in its written submissions that the special schools had their own legal personality, that the impugned decisions contained advice on the right of appeal and that the applicants had at no stage contacted the schools inspectorate. The Ministry for Education denied any discrimination and said that parents of Roma children tended to have a rather negative attitude to school work. It asserted that each placement in a special school was preceded by an assessment of the child’s intellectual capacity and that parental consent was a decisive factor. It further noted that there were 18 educational assistants of Roma origin in schools in Ostrava. 17. In their final written submissions, the applicants pointed out (i) that there was nothing in their school files to show that their progress was being regularly monitored with a view to a possible transfer to primary school, (ii) that the reports from the educational psychology and child guidance centres contained no information on the tests that were used and (iii) that their recommendations for placement in a special school were based on grounds such as an insufficient command of the Czech language, an over-tolerant attitude on the part of the parents or an ill-adapted social environment. They also argued that the gaps in their education made a transfer to primary school impossible in practice and that social or cultural differences could not justify the alleged difference in treatment. 18. On 20 October 1999 the Constitutional Court dismissed the applicants’ appeal, partly on the ground that it was manifestly unfounded and partly on the ground that it had no jurisdiction to hear it. It nevertheless invited the competent authorities to give careful and effective consideration to the applicants’ proposals. (a) With regard to the complaint of a violation of the applicants’ rights as a result of their placement in special schools, the Constitutional Court held that, as only five decisions were actually referred to in the notice of appeal, it had no jurisdiction to decide the cases of the applicants who had not appealed against the decisions concerned. As to the five applicants who had lodged constitutional appeals against the decisions to place them in special schools (nos. 1, 2, 3, 5 and 9 in the Appendix), the Constitutional Court decided to disregard the fact that they had not lodged ordinary appeals against those decisions, as it agreed that the scope of their constitutional appeals went beyond their personal interests. However, it found that there was nothing in the material before it to show that the relevant statutory provisions had been interpreted or applied unconstitutionally, since the decisions had been taken by head teachers vested with the necessary authority on the basis of recommendations by educational psychology and child guidance centres and with the consent of the applicants’ representatives. (b) With regard to the complaints of insufficient monitoring of the applicants’ progress at school and of racial discrimination, the Constitutional Court noted that it was not its role to assess the overall social context and found that the applicants had not furnished concrete evidence in support of their allegations. It further noted that the applicants had had a right of appeal against the decisions to place them in special schools, but had not exercised it. As to the objection that insufficient information had been given about the consequences of placement in a special school, the Constitutional Court considered that the applicants’ representatives could have obtained the information by liaising with the schools and that there was nothing in the file to show that they had made any enquiries about the possibility of transferring to a primary school. The Constitutional Court therefore ruled that this part of the appeal was manifestly ill-unfounded. 19. Prior to 18 February 2000, section 19(1) provided that to be eligible for secondary-school education pupils had to have successfully completed their primary-school (základní škola) education. Following amendment no. 19/2000, which came into force on 18 February 2000, the amended section 19(1) provided that to be eligible for secondary-school education pupils had to have completed their compulsory education and demonstrated during the admission procedure that they satisfied the conditions of eligibility for their chosen course. 20. Section 31(1) provided that special schools (zvláštní školy) were intended for children with learning disabilities that prevented them from following the curricula in ordinary primary schools or in specialised primary schools (speciální základní škola) intended for children suffering from sensory impairment, illness or disability. 21. Article 2 § 4 of the Decree laid down that the following schools were available for children and pupils suffering from mental disability: specialised nursery schools (speciální mateřské školy), special schools, auxiliary schools (pomocné školy), vocational training centres (odborná učiliště) and practical training schools (praktické školy). 22. Article 6 § 2 stipulated that if during the child’s or the pupil’s school career there was a change in the nature of his or her disability or if the specialised school was no longer adapted to the level of disability, the head teacher of the school attended by the child or pupil was required, after an interview with the pupil’s representative, to recommend the pupil’s placement in another specialised school or in an ordinary school. 23. Article 7 stipulated that the decision to enrol or place a child or pupil in, inter alia, a special school was to be taken by the head teacher, provided that the child’s or pupil’s parents or legal guardian consented. The head teacher was entitled to consult sources such as the parents or legal guardian, the school attended by the pupil, educational psychology and child guidance centres, hospitals or clinics, authorities with responsibility for family and child welfare and health centres. The educational psychology and child guidance centre was responsible for assembling all the documents required to reach a decision and required to make a recommendation to the head teacher regarding the type of school. 24. In the section of the report that dealt with the policy aspects of education and training, ECRI stated that public opinion appeared sometimes to be rather negative towards certain groups, especially the Roma/Gypsy community and suggested that further measures should be taken to raise public awareness of the issues of racism and intolerance and to improve tolerance towards all groups in society. It added that special measures should be taken as regards education and training of the members of minority groups, particularly members of the Roma/Gypsy community. 25. With regard to the access of Roma children to education, ECRI said in this report that it was concerned that Roma children continued to be sent to special schools which, besides perpetuating their segregation from mainstream society, severely disadvantaged them for the rest of their lives. The standardised test developed by the Czech Ministry of Education for assessing a child’s mental level was not mandatory and was only one of a battery of tools and methods recommended to the psychological counselling centres. As far as the other element required in order to send a child to a special school – the consent of a parent or legal guardian of the child – ECRI observed that parents making such decisions continued to lack information concerning the long-term negative consequences of sending their children to such schools, which were often presented to parents as an opportunity for their children to receive specialised attention and be with other Roma children. ECRI also said that it had received reports of Roma parents being turned away from regular schools. ECRI also noted that the School Act had entered into force in January 2000 and provided the opportunity for graduates of special schools to apply for admission to secondary schools. According to various sources, that remained largely a theoretical possibility as special schools did not provide children with the knowledge required in order for them to attend regular schools. There were no measures in place to provide additional education to students who had gone through the special school system to bring them to a level where they would be adequately prepared for regular secondary schools. ECRI had received very positive feedback concerning the success of ‘zero grade courses’ (preparatory classes) at preschool level in increasing the number of Roma children who attended regular schools. It expressed its concern, however, over a new trend to maintain the system of segregated education in a new form – this involved special classes in mainstream schools. In that connection, a number of concerned actors were worried that the new draft Schools Act created the possibility for even further separation of Roma through the introduction of a new category of special programmes for the ‘socially disadvantaged’. Lastly, ECRI noted that despite initiatives taken by the Ministry of Education (assistant teachers, training programmes for teachers, revision of the primary school curriculum), the problem of low levels of Roma participation in secondary and tertiary level education described by ECRI in its second report persisted. 26. The document stated that the Government had adopted measures in the education sphere that were focused on providing suitable conditions especially for children from socially and culturally disadvantaged environments, in particular the Romany community, by opening preparatory classes in elementary and special schools. It was noted that “Romany children with average or above-average intellect are often placed in such schools on the basis of results of psychological tests (this happens always with the consent of the parents). These tests are conceived for the majority population and do not take Romany specifics into consideration. Work is being done on restructuring these tests”. In some special schools Romany pupils made up between 80% and 90% of the total number of pupils. 27. The Czech Republic accepted that the Roma were particularly exposed to discrimination and social exclusion and said that it was preparing to introduce comprehensive anti-discrimination tools associated with the implementation of the EU Council Directive implementing the principle of equal treatment. New legislation was due to be enacted in 2004. In the field of Roma education, the report said that the State had taken various measures of affirmative action in order to radically change the present situation of Roma children. The Government regarded the practice of referring large numbers of Roma children to special schools as untenable. The need for affirmative action was due not only to the sociocultural handicap of Roma children, but also to the nature of the whole education system, its inability to sufficiently reflect cultural differences. The draft new Schools Act would bring changes to the special education system (transforming “special schools” into “special primary schools”), providing the children targeted assistance in overcoming their sociocultural handicap. These included preparatory classes, individual study programmes for children in special schools, measures concerning preschool education, an expanded role for assistants from the Roma community and specialised teacher-training programmes. As one of the main problems encountered by Roma pupils was their poor command of the Czech language, the Ministry of Education considered that the best solution (and the only realistic one) would be to provide preparatory classes at the preschool stage for children from a disadvantaged sociocultural background. The report also cited a number of projects and programmes that had been implemented nationally in this sphere (‘Support for Roma integration’, ‘Programme for Roma integration/Multicultural education reform’, and ‘Reintegrating Roma special school pupils in primary schools’).
| 0
|
train
|
001-24029
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,003
|
MONTCORNET DE CAUMONT v. FRANCE
| 1
|
Inadmissible
| null |
The applicant, Mr Robert Montcornet de Caumont, is a French national who was born in 1930 and lives in Briançon. He was represented before the Court by Mr E. de Caumont, of the Paris Bar. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was prosecuted for exceeding the speed limit authorised outside built-up areas (173 k.p.h. instead of the permitted 130 k.p.h.) at Peyrolles on 1 June 1992. In a judgment delivered on 16 December 1992, the Aix-en-Provence Police Court acquitted him, finding that there was insufficient evidence to convict. On an appeal by the prosecution, the Aix-en-Provence Court of Appeal reversed that judgment on 5 May 1994 and found the applicant guilty of exceeding the speed limit. It imposed a fine of 3,000 French francs and disqualified him from driving for one month. In its judgment, it held, inter alia: “The aforementioned particulars in the incident report which served as the basis for the prosecution show that it was indeed the accused's vehicle, whose registration number and make were correctly noted, which was intercepted after its speed had been recorded. The gendarmes' findings are not refuted by the accused's bare denials ... Consequently, ... this Court reverses the judgment appealed against and, there being no need to order additional investigations, finds the accused guilty as charged.” The applicant appealed on points of law but, in a judgment delivered on 22 February 1995, the Court of Cassation dismissed his appeal. The applicant's conviction therefore became final and on 22 April 1996 the Finance Department of the City of Marseilles issued a formal demand for payment of the fine that had been imposed by the Aix-en-Provence Court of Appeal in its judgment of 5 May 1994. The applicant applied to the Aix-en-Provence Court of Appeal for relief under the Amnesty Act (Law no. 95-884 of 3 August 1995). The application was rejected by the Court of Appeal in a judgment of 15 December 1997, in which it found: “The offence the applicant has been found guilty of is excluded from the Amnesty Act by virtue of section 25(10) of that Act.” The applicant appealed to the Court of Cassation. In a single ground of appeal, he relied on Article 6 § 1 of the Convention and “the rights of the defence as a whole”, essentially arguing that the Court of Appeal had not given adequate reasons to explain why the offence did not qualify for an amnesty under the Act. In his submission, he was entitled to an amnesty, as the only way he could be deprived of that right was by the retrospective application of the Amnesty Act. In a judgment delivered on 21 September 1999 and served on 21 December 1999, the Court of Cassation dismissed the appeal. “The following shall be excluded from the scope of this Act: ... (10) The minor road-traffic offences referred to in sub-paragraph 2 of Article R. 256 of the Highway Code as worded on 18 May 1995.” This provision was worded as follows under the decree of 23 November 1992, which came into force on 18 May 1995: “Any breach of the Articles listed below ... shall give rise to the automatic deduction of points as follows: 1. Six points shall be deducted for relatively serious offences [délits] under the following Articles: ... 2. Four points shall be deducted for minor offences under the following Articles: ... – ... exceeding the speed limit by 40 k.p.h. or more; 3. Three points shall be deducted for minor offences under the following Articles: ... 4. Two points shall be deducted for minor offences under the following Articles: ... 5. One point shall be deducted for minor offences under the following Articles: ... I. – This decree shall enter into force on 1 December 1992. II. – (a) The number of points to be deducted for offences proved ... prior to 1 December 1992 shall continue to be calculated in accordance with the provisions of the aforementioned decree of 25 June 1992. (b) The number of points to be deducted for offences committed before 1 December 1992 but not proved until after that date shall be calculated in accordance with the provisions of this decree. III. – The number of points allotted to each driving licence on 30 November 1992 shall be doubled on 1 December 1992.”
| 0
|
train
|
001-110271
|
ENG
|
GBR
|
CHAMBER
| 2,012
|
CASE OF BALOGUN v. THE UNITED KINGDOM
| 4
|
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)
|
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
|
5. The facts of the case, as submitted by the applicant, may be summarised as follows. 6. The applicant, who was born in 1986, claims to have arrived in the United Kingdom at the age of three years old. However, there is no official record of his presence until 1994, when he was eight years old. He first came to the notice of the Secretary of State for the Home Department on 21 December 1994, when the family court sought clarification of the applicant’s immigration status, while considering an application for a residence order in respect of the applicant by his aunt. 7. The applicant’s aunt made an application for indefinite leave to remain in the United Kingdom, on the basis of her long stay, and with the applicant listed as her dependant, on 24 January 2003. While this application was under consideration, a further application for indefinite leave was made on behalf of the applicant by Southwark Social Services. This application stated that the applicant had been thrown out by his aunt on 12 January 2002 and placed in foster care. It also mentioned that the applicant claimed to have been the victim of beatings by his aunt and her boyfriend since the age of three. Indefinite leave to remain was granted to the applicant, outside the immigration rules, on 1 December 2003. The applicant lived in foster care from 2002 until he was eighteen, when he began to live alone in council accommodation. 8. The applicant was convicted on 21 February 2007, at the age of twenty, of two counts of possession of Class A drugs with intent to supply. He pleaded guilty on the basis that he had been coerced into letting his premises be used for the preparation and sale of drugs by a group of people whom he feared because of a previous attack in 2005, in which the applicant had been shot. He was sentenced to three years’ imprisonment, and on 18 October 2007 was notified of the Secretary of State’s intention to deport him. The Secretary of State found that there was no evidence that the applicant had been present in the United Kingdom since the age of three. His aunt had stated that he had been left with her by his mother at the age of five, and the first official record of his presence was when he was eight years old. Even allowing for his long stay in the United Kingdom, only four years had been with valid leave. It was believed that he was in contact with his mother, who remained in Nigeria, and that as he had lived alone since attaining the age of majority, the applicant was evidently independent and capable of adapting to new circumstances. It was not accepted that he had family life in the United Kingdom. 9. The applicant appealed against the decision to deport him and his appeal was dismissed by the Asylum and Immigration Tribunal on 13 March 2008. The Tribunal noted the applicant’s previous criminal record: he had been convicted of possession of Class A and Class B drugs in February 2004; handling stolen goods in April 2004; and possession of Class C drugs in June 2005. 10. The Tribunal also noted his claim to be in a relationship of some years’ duration, but observed that he had never mentioned his girlfriend in previous applications to the Home Office, and that he and his girlfriend had given mutually inconsistent evidence at the hearing. It was not therefore accepted that he was in a serious or permanent relationship. He had no contact with the aunt with whom he had previously lived, but had another aunt in the United Kingdom whom he claimed was a surrogate mother to him. However, the Tribunal found that he could not be as close to this aunt as he claimed, given that she had not taken him in when he had been thrown out, and that it was clear from her evidence at the hearing that she had been unaware of his criminal conviction. The applicant’s relationship with his half-brother in the United Kingdom was found to have been similarly exaggerated. The Tribunal concluded that the applicant did not have any protected family life in the United Kingdom. With regard to his private life, while it was accepted that he had been in the country since a young age and had been educated there, as well as gaining some work experience, it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life. It appeared that his mother still lived in Nigeria and, even if contact had been lost, as claimed by the applicant, there was no reason why it could not be re-established. Whilst the applicant would have practical difficulties in relocating to Nigeria, he could re-establish his private life there. The Tribunal took into account the case of Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006XII, in finding that, on balance, and having due regard to the public interest, the applicant’s deportation was proportionate. 11. A deportation order against the applicant was signed on 14 October 2008. The applicant made an application to have the order revoked on human rights grounds, which was rejected by the Secretary of State on 3 June 2009 on the basis that all matters raised by the applicant had previously been considered by the Asylum and Immigration Tribunal. An application for judicial review of this decision was refused on 30 October 2009. The High Court, in refusing the application, stated that the applicant had no family life in the United Kingdom, and that the interference with his private life was proportionate. The applicant did not renew his application for judicial review. 12. The applicant was taken into immigration detention on 10 November 2009 and directions for his deportation to Nigeria were set on 12 November 2009 for 19 November 2009. On 13 November 2009 the applicant sought interim measures from this Court under Rule 39 of the Rules of Court to prevent his deportation. He submitted with his application a report from a specialist psychiatric registrar dated 14 September 2009, which stated that the applicant had attempted suicide on 13 August 2009, after being notified of the refusal of his human rights application by the Secretary of State. He had then been held as an in-patient until 7 September 2009. The report also stated that the applicant had continued to express feelings of despair throughout his in-patient treatment. He was described as suffering from moderate depression. 13. On 18 November 2009, the Acting President of the Fourth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Nigeria pending the Court’s decision. Rule 39 was initially applied by the Acting President for a period of two weeks, in order to give the Government the opportunity to comment on the applicant’s mental health history and to state whether any special measures had been put in place to alleviate the risk of suicide prior to and during his proposed removal. 14. By letter dated 2 December 2009, the Government informed the Court that they had not previously been aware of the applicant’s attempted suicide, but had now considered the psychiatric report of 14 September 2009. As regards the logistics of the applicant’s removal, the Government stated that all appropriate measures to protect the applicant from risk were already in place at the centre at which he was detained. Trained members of staff were aware of the applicant’s situation and the applicant was under constant supervision. As to the risk during removal, the contractor effecting removal would be informed and a suitable escort would be provided, including a medical escort if deemed necessary. The applicant would be escorted up until the point of arrival in Nigeria. The Government also considered that there were sufficient mental health facilities in Nigeria, which would be available to the applicant if needed. The Government therefore invited the Court to lift the interim measure which had been indicated in respect of the applicant. However, on 8 December 2009, the Acting President decided to prolong until further notice the interim measure under Rule 39. 15. The applicant notified the authorities in the immigration detention centre that he had taken an overdose of paracetamol on 29 December 2009. He was assessed by the medical team and found only to have taken a few tablets. No further concerns as to his well-being appear to have been raised and the applicant was released from immigration detention on 13 January 2010. He does not claim to have made any further attempts at suicide. 16. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. 17. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision, inter alia, on the grounds that the decision is incompatible with the Convention. 18. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. 19. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides: “353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” A fresh claim, if it is accepted as such by the Secretary of State, and if refused, gives rise to a fresh right of appeal on the merits. If submissions are not accepted as amounting to a fresh claim, their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim. 20. In J. v. Secretary of State for the Home Department [2005] EWCA Civ 629, the Court of Appeal considered the case of a Sri Lankan national suffering from depression and post-traumatic stress disorder, who had made a suicide attempt upon learning that his claim for asylum had been refused, and who claimed that he would commit suicide if it appeared that he would be removed to Sri Lanka. Lord Justice Dyson, delivering the judgment of the court, held that the correct test as to whether there was a real risk in terms of Article 3 in a suicide case was, as in other Article 3 cases involving expulsion, whether there were strong grounds for believing that the person, if returned, would face a real risk of torture, inhuman or degrading treatment or punishment. 21. The Court of Appeal went on to expand upon the nature of the test. It required firstly, that the treatment that the person was at risk of suffering should reach a minimum level of severity. Secondly, there must be a causal link between the act or threatened act of removal or expulsion and the treatment relied upon as breaching Article 3. The court also found, thirdly, that because of the “foreign” nature of expulsion cases, the threshold for what would meet the threshold of Article 3 would be particularly high and higher still when the treatment did not result from the direct or indirect actions of the authorities of the receiving State but from a naturally occurring physical or mental illness. Fourthly, a risk of suicide could, in principle, form the basis of a successful claim under Article 3. Fifthly, an important factor in determining whether removal would breach Article 3 in the case of an applicant who claimed to be suicidal was whether his or her alleged fear of ill-treatment in the receiving State, if such a fear was at the root of the risk of suicide, was objectively well-founded. A fear found not to be objectively well-founded would weigh against a finding of a real risk of a violation of Article 3. Finally, the Court of Appeal also considered it to be of considerable relevance whether the removing and/or receiving States had effective mechanisms in place to reduce the risk of suicide. The existence of such mechanisms would also weigh heavily against a finding of a violation of Article 3 as a result of removal. 22. The Court of Appeal further held that the correct approach to an alleged risk of suicide in an expulsion case was to consider the risk in three stages, namely, in the United Kingdom, in transit, and in the receiving State. The threshold for Article 3 in respect of the risk in the receiving State was higher than it was in respect of the risk in the United Kingdom. In the case of the particular appellant, the Court of Appeal found that the Asylum and Immigration Tribunal had been correct to find that the risk of suicide in the United Kingdom would be adequately managed by the relevant authorities; that the Secretary of State would provide appropriately qualified escorts and as such mitigate the risk of suicide whilst in transport; and that in light of the finding that the applicant’s fears of return to Sri Lanka were not objectively well-founded, and that he would have family support and access to adequate medical treatment in that State, the risk of suicide in Sri Lanka would not reach the very high threshold of Article 3.
| 0
|
train
|
001-104293
|
ENG
|
RUS
|
CHAMBER
| 2,011
|
CASE OF KRAVTSOV v. RUSSIA
| 4
|
Violation of Art. 6-1
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
5. The applicant was born in 1965 and lives in the town of Yelizovo, the Kamchatka Region. He is a military serviceman. 6. On 22 March and 20 May 2004 the Pacific Ocean Fleet Military Court (“the Fleet Court”), sitting in Vladivostok, in the final instance dismissed the applicant's claims against his commanding officers. 7. On 22 July 2004 the Fleet Court in the final instance allowed the applicant's other claim. It made the following order: “The commanding officer of military unit no. 27120 shall provide [the applicant] with data about the constitutive elements of his monetary allowance paid to him from 1 January 2003 until 13 March 2004, as well as about reasons and grounds for him being deprived of bonus in 2003”. 8. The Fleet Court's judgment of 22 July 2004 was final and immediately enforceable. 9. On 4 April 2005 the bailiffs of the Kamchatka Regional Department of the Federal Court Bailiffs Service (“the Regional Department”) commenced the enforcement proceedings. They requested the commanding officer to enforce the judgment of 22 July 2004 in the applicant's favour voluntarily within a five-days period. 10. Meanwhile, on 1 April 2005 the 35th Garrison Military Court (“the Garrison Court”), sitting in Petropavlovsk-Kamchatskiy, allowed another claim lodged by the applicant. It ordered the commanding officer of the military unit no. 51401 to provide the applicant with an annual leave starting from 29 May 2005. The judgment of 1 April 2005 was not appealed against and became final and enforceable on 15 April 2005. 11. On 10 June 2005 the bailiffs of the Regional Department commenced the enforcement proceedings. They requested the commanding officer to enforce the judgment of 1 April 2005 in the applicant's favour voluntarily within a five-days period. The judgment was enforced before October 2005. 12. On 4 June 2009 the commanding officer of the military unit no. 27120 wrote to the applicant providing him with the relevant information, as he had been ordered to do by the Fleet Court's judgment of 22 July 2004. The letter of 4 June 2009 indicated that it was sent in compliance with the judgment of 22 July 2004. It was received by the applicant on 8 June 2009. 13. Domestic law and practice on execution of the judgments delivered against the State and its entities are summarised in Burdov (no. 2) v. Russia (no. 33509/04, §§ 23-24, ECHR 2009-...). 14. The 2010 legislation introducing a new domestic remedy in respect of an alleged violation of one's right to enforcement of a judgment within reasonable time is summarised in Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 15-20, 23 September 2010, and Balagurov v. Russia (dec.), no. 9610/05, 2 December 2010. 15. On 23 December 2010 the Joint Plenary of the Supreme Court of the Russian Federation and the Supreme Commercial Court of the Russian Federation adopted a resolution interpreting the above-mentioned legislative provisions. It is reiterated in the resolution that the legislation in question is applicable only in respect of the monetary awards payable from the public funds pursuant to a contractual or legal provision (paragraph 1).
| 1
|
train
|
001-97979
|
ENG
|
FRA
|
GRANDCHAMBER
| 2,010
|
CASE OF MEDVEDYEV AND OTHERS v. FRANCE
| 1
|
Preliminary objection dismissed (ratione materiae);Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - award
|
Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger
|
9. The applicants were crew members on a merchant ship named the Winner, registered in Cambodia. The ship had attracted the attention of the American, Spanish and Greek anti-drug services when the Central Office Against Illegal Drug Trafficking (l’Office Central de Répression du Trafic Illicite des Stupéfiants – “the OCRTIS”), a ministerial body attached to the Central Police Directorate of the French Ministry of the Interior, requested authorisation to intercept it. The OCRTIS suspected the ship of carrying large quantities of drugs, with the intention of transferring them to speedboats off the Canary Islands for subsequent delivery to the coasts of Europe. 10. In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government’s agreement for the French authorities to take action, in the following terms: “The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands. The Ministry of Foreign Affairs and International Cooperation takes this opportunity to renew its assurance of its high esteem.” 11. In a diplomatic telegram dated the same day, the French embassy in Phnom Penh passed on the information to the Ministry of Defence in Paris. 12. The commander of the French frigate Lieutenant de vaisseau Le Hénaff, which lay at anchor in Brest harbour and had been assigned a mission off the coast of Africa, was instructed by the French naval authorities to locate and intercept the Winner. The frigate left Brest harbour the same day to search for and intercept the Winner, with the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea, on board for the duration of the mission. On 10 June 2002, during a technical stopover in Spain, three experts from the OCRTIS also boarded the frigate. 13. On 13 June 2002, at 6 a.m., the French frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde, several thousand kilometres from France. It was not flying a flag, but was identified as the Winner. The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat. While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact, its crew jettisoned a number of packages into the sea; one of the packages, containing about 100 kilos of cocaine, was recovered by the French seamen. After several warnings and warning shots fired under orders from France’s maritime prefect for the Atlantic went unheeded, the French frigate fired a shot directly at the Winner. The merchant ship then answered by radio and agreed to stop. When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a “warning shot” was fired at the ground, but the bullet ricocheted and the crew member was wounded. He was immediately evacuated onto the French frigate, then transferred to Dakar hospital, where he died a week later. 14. Under orders from the maritime prefect and at the request of the public prosecutor in Brest, a tug with a military doctor on board was sent from Brest to tow the Winner back to Brest harbour, escorted by the frigate Commandant Bouan. Because of its poor state of repair and the weather conditions, the ship was incapable of speeds faster than 5 knots. 15. The crew of the Winner were confined to their quarters under military guard. The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the French forces. According to the applicants, the coercive measures were maintained throughout the voyage, until they arrived in Brest. 16. On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking involving Greek nationals. 17. On 24 June 2002 the Brest public prosecutor’s office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed. 18. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew were handed over to the police, acting under instructions dated 25 June 2002 from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights. 19. On the same day, the applicants were presented to an investigating judge at the police station in Brest, to determine whether or not their police custody should be extended. The reports submitted to the Grand Chamber by the Government show that certain applicants met one of the investigating judges (R. André) at 5.05 p.m. (Mr Cabrera Leon), 5.10 p.m. (Mr Sage Martínez), 5.16 p.m. (Mr Balaban), 5.25 p.m. (Mr Manolache), 5.34 p.m. (Mr Petcu) and 5.40 p.m. (Mr Dodica), and the other applicants (Mr Medvedyev, Mr Bilenikin and Mr Boreas) were heard by the second investigating judge (B. Simier) at an unspecified time. The applicants were presented to the same investigating judges again the following day, 27 June 2002 (Mr Sage Martínez at 5.05 p.m., Mr Cabrera Leon at 5.10 p.m., Mr Manolache at 5.20 p.m., Mr Balaban at 5.28 p.m., Mr Dodica at 5.35 p.m. and Mr Petcu at 5.40 p.m.; the times for the other three applicants are not known). 20. On 28 and 29 June 2002 the applicants were charged and remanded in custody pending trial (Mr Petcu, Mr Dodica, Mr Balaban and Mr Manolache on 28 June, and Mr Medvedyev, Mr Bilenikin, Mr Boreas, Mr Cabrera Leon, Mr Sage Martínez and two other crew members – Mr Litetski and Mr Theophanous – on 29 June). 21. The applicants applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed, submitting that the French authorities had acted ultra vires in boarding the Winner, as the ship had been under Cambodian jurisdiction and Cambodia was not party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, and also that they had not been brought “promptly” before a judge, as required under Article 5 § 3 of the Convention, when the Winner was intercepted. 22. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. After retracing the details of the operations, including the fact that “on 13 June at 6 a.m. the French frigate spotted a merchant ship – first on its radar, then visually – travelling at slow speed and flying no flag, and identified it as the Winner”, it pronounced judgment in the following terms: “Considering that the international effort to combat drug trafficking is governed by three conventions: the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on [10] December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988; while France has signed and ratified all three conventions, Cambodia has not signed the Vienna Convention, Article 17 § 3 of which provides for derogations from the traditional principle of the ‘law of the flag State’. Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in Article 92 of the Montego Bay Convention, the authority of a State on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the State’s own law are respected as Article 108 of that Convention, on ‘Illicit traffic in narcotic drugs or psychotropic substances’, stipulates: 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. Considering that, based on that text and ‘with reference’ to the earlier United Nations Convention of 30 March 1961 against international drug trafficking, the French authorities were within their rights to request Cambodia’s cooperation with a view to obtaining that country’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved; that as the provisions of the Vienna Convention do not apply to Cambodia, it was for that State to ask the French authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion; that the diplomatic telegram sent by the French embassy on 7 June 2002, which actually mentions the reasoned request submitted by the OCRTIS, suffices to establish the existence of an agreement given without restrictions or reservations by the government of Cambodia for the planned interception and all its consequences, and is authoritative until proven otherwise; that on this point the applicants cannot contend that the document does not meet the formal requirements of Article 17 § 3 of the Vienna Convention concerning bilateral agreements between parties, when they are also arguing that the Vienna Convention is not applicable to Cambodia because it has not signed it; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the Cambodian government’s agreement to the French embassy. Considering, on the other hand, that in proceeding to intercept the Winner it was the duty of the French authorities to comply with the procedures provided for both in the Vienna Convention signed by France – in particular to ‘take due account of the need not to endanger the safety of life at sea, the security of the vessel and its cargo’ – and in the Law of 15 July 1994, as amended by the Law of 29 April 1996 adapting French law to Article 17 of the Vienna Convention, Articles 12 et seq. of which define the sphere of competence of commanders of naval vessels and the procedures for the search, reporting, prosecution and judgment in the French courts of drug trafficking offences committed at sea. Considering that the reports drawn up by the commander of the Lieutenant de vaisseau Le Hénaff, duly authorised by the maritime prefect for the Atlantic, which are authoritative until proven otherwise, state that when the frigate drew within sight of the Winner, off the Cape Verde islands, the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship, in breach of the rules of international law, and to stop his ship, but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on board the speedboat; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard, one of which was recovered and found to contain a large quantity of cocaine; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship, the commander of the frigate acted in strict compliance with: – the provisions of Article 17 § 4 of the Vienna Convention under which, if evidence of involvement in illicit traffic is found after a ship has been boarded and searched, appropriate action may be taken with respect to the vessel and the persons and cargo on board, – the provisions of the Law of 15 July 1994 as supplemented by the Law of 29 April 1996, which, in its general provisions (Articles 1 to 10) regulates recourse to coercive measures comprising, if necessary, the use of force in the event of refusal by a ship to submit to control and also, in the particular case of the fight against drug trafficking (Articles 12 to 14), makes provision for the implementation of the control and coercion measures provided for under international law. Considering that, regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the French naval authorities, and to the attitude of the crew members, who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard, the members of the commando unit who boarded the ship found themselves in the presence of large-scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission; that they were obliged to use their weapons in response to the resistance put up by one of the ship’s crew; that it cannot be claimed that Article 13 of the Law of 15 July 1994 as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘the inspection and coercion measures provided for in international law’, and Article 17 § 4 (c) of the Vienna Convention against Illicit Traffic in Narcotic Drugs [and Psychotropic Substances] expressly mentions taking ‘appropriate action with respect to the persons on board’; that although the nature of these measures is not specified, the text at least provides for the possibility for the competent naval authorities to limit, if necessary, the freedom of the boarded ship’s crew to come and go, otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised; that it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force; that consequently, confining the members of the crew of the Winner – all but the wounded man, who was transferred to the frigate – to their cabins under the guard of the commando unit, so that the ship could be safely taken over and rerouted, fell within the appropriate measures provided for in Article 17 § 4 (c) of the Vienna Convention. Considering that the Law of 15 July 1994 necessarily requires some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it is impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge; and, that being so, that the restrictions placed on the movements of the boarded ship’s crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the European Convention on Human Rights and did not amount to unlawful detention; and that it should be noted that as soon as the Winner docked in Brest, its crew were handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge. Considering also that the French courts have jurisdiction under the Law of 15 July 1994 as amended. ... the grounds of nullity must accordingly be rejected [and] there is no reason to disallow any other documents from the proceedings, which are lawful.” 23. In a judgment of 15 January 2003, the Court of Cassation dismissed an appeal lodged by the applicants in the following terms: “... in so far as Cambodia, the flag State, expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action was taken against the persons on board, who were lawfully taken into police custody as soon as they landed on French soil, the Investigation Division has justified its decision.” 24. On 28 May 2005, the Ille-et-Vilaine Special Assize Court found three applicants – Mr Boreas, Mr Sage Martínez and Mr Cabrera Leon – and one other crew member, S.T., guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years’, ten years’, three years’ and eighteen years’ imprisonment. However, Mr Boreas and S.T. were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking. The Assize Court acquitted the other six applicants and O.L., another crew member, of the charges against them. 25. In a judgment of 6 July 2007, the Loire-Atlantique Assize Court, examining an appeal lodged by Mr Boreas, Mr Sage Martínez and S.T., upheld the conviction and sentenced them respectively to twenty, twelve and seventeen years’ imprisonment. On 9 April 2008 the Court of Cassation dismissed an appeal on points of law lodged by S.T. and Mr Boreas. 26. In a note of 9 September 2008, in reply to a request submitted by the French embassy in Phnom Penh on 3 September 2008, the Ministry of Foreign Affairs and International Cooperation of Cambodia confirmed that its diplomatic note of 7 June 2002 had “indeed authorised the French authorities to intercept and carry out all necessary operations for the inspection, seizure and legal proceedings against the ship Winner, flying the Cambodian flag, but also against all the members of its crew”. 27. The relevant provisions of the United Nations Single Convention on Narcotic Drugs of 30 March 1961, to which France is a party, read as follows: “Having due regard to their constitutional, legal and administrative systems, the Parties shall: (a) Make arrangements at the national level for coordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such coordination; (b) Assist each other in the campaign against the illicit traffic in narcotic drugs; (c) Cooperate closely with each other and with the competent international organisations of which they are members with a view to maintaining a coordinated campaign against the illicit traffic; (d) Ensure that international cooperation between the appropriate agencies be conducted in an expeditious manner; and (e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel; (f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by Article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and (g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.” 28. The relevant provisions of the United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) (to which Cambodia is not a party) read as follows: “1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.” “1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with Articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under Article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorised ships or aircraft clearly marked and identifiable as being on government service.” 29. The relevant provisions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (“the Vienna Convention”) (to which France is a party but not Cambodia) read as follows: “1. The Parties shall cooperate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea. 2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them. 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorisation from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorise the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board. 5. Where action is taken pursuant to this Article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State. 6. The flag State may, consistent with its obligations in paragraph 1 of this Article, subject its authorisation to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility. 7. For the purposes of paragraphs 3 and 4 of this Article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorisation made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this Article shall promptly inform the flag State concerned of the results of that action. 9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this Article. 10. Action pursuant to paragraph 4 of this Article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect. 11. Any action taken in accordance with this Article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.” 30. The relevant provisions of this agreement, signed by twenty-two member States of the Council of Europe (but not by France) and ratified by thirteen, read as follows: “The member States of the Council of Europe, having expressed their consent to be bound by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on 20 December 1988, hereinafter referred to as ‘the Vienna Convention’, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Convinced of the need to pursue a common criminal policy aimed at the protection of society; Considering that the fight against serious crime, which has become an increasingly international problem, calls for close cooperation on an international scale; Desiring to increase their cooperation to the fullest possible extent in the suppression of illicit traffic in narcotic drugs and psychotropic substances by sea, in conformity with the international law of the sea and in full respect of the principle of right of freedom of navigation; Considering, therefore, that Article 17 of the Vienna Convention should be supplemented by a regional agreement to carry out, and to enhance the effectiveness of the provisions of that Article, Have agreed as follows: ... Section 3 – Rules governing action 1. Having received the authorisation of the flag State, and subject to the conditions or limitations, if any, made under Article 8, paragraph 1, the intervening State may take the following actions: i. a. stop and board the vessel; b. establish effective control of the vessel and over any person thereon; c. take any action provided for in sub-paragraph ii of this Article which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof; d. require the vessel and any persons thereon to be taken into the territory of the intervening State and detain the vessel there for the purpose of carrying out further investigations; ii. and, having established effective control of the vessel: a. search the vessel, anyone on it and anything in it, including its cargo; b. open or require the opening of any containers, and test or take samples of anything on the vessel; c. require any person on the vessel to give information concerning himself or anything on the vessel; d. require the production of documents, books or records relating to the vessel or any persons or objects on it, and make photographs or copies of anything the production of which the competent authorities have the power to require; e. seize, secure and protect any evidence or material discovered on the vessel. 2. Any action taken under paragraph 1 of this Article shall be without prejudice to any right existing under the law of the intervening State of suspected persons not to incriminate themselves. 1. Where, as a result of action taken under Article 9, the intervening State has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel, or both, it may so proceed. ... 1. Actions taken under Articles 9 and 10 shall be governed by the law of the intervening State ...” 31. This agreement between continental and island States of the Caribbean area (Costa Rica, the Dominican Republic, France, Guatemala, Haiti, Honduras, the Netherlands, Nicaragua and the United States of America) in respect of the Vienna Convention, lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for States to be able to consent in advance to intervention by the other States Parties on ships flying their flags. 32. It allows a State Party to take coercive action, even in the territorial waters of another State Party, by delegation of the latter State. There are three possibilities: – systematic authorisation; – authorisation if no answer is received from the flag State within four hours of another Party submitting a request for intervention; – express authorisation for the intervention, which corresponds to the current legal situation under the Vienna Convention. 33. The draft law thus allows the States to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters. 34. The relevant provisions of Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea, as amended by Law no. 96-359 of 29 April 1996 on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, read as follows (version applicable at the material time): “Part II: Special provisions adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988. The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part I of the present Law and by the following provisions. These provisions shall apply not only to ships flying the French flag, but also: – to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State; – to ships displaying no flag or having no nationality. Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the maritime prefect, who shall inform the public prosecutor’s office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this Law.” 35. In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention: “The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of the Defence Code and by the provisions of the present Part of this Law. These provisions shall apply not only to the ships mentioned in Article L. 1521-1 of the Defence Code, but also: – to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention; – to ships displaying no flag or having no nationality.” 36. In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on “Exercise of the State’s law enforcement powers at sea”, by adding the following final sentence: “During transit subsequent to rerouting, the officers mentioned in Article L. 1521-2 may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.” 37. In its report on the draft of this Law, the Foreign Affairs Committee stated (extract from Report no. 280 (2004-05), dated 6 April 2005): “B. THE DRAFT LAW 1. Secure the procedures (a) Delete the reference to the Vienna Convention on drug trafficking In the case involving the Winner, a ship flying the Cambodian flag that was stopped by the French navy off the coast of West Africa, the Court of Cassation did not deem it necessary to rely on the Vienna Convention, to which Cambodia was not party, to find that the stopping of the ship with the consent of the flag State in the particular case of drug trafficking had been lawful. It found it sufficient to rely on Article 108 of the Montego Bay Convention, which provides: ‘Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.’ On the other hand, when carrying out the interception, a State Party to the Vienna Convention which stops such a ship – in this case, France – must comply with the rules laid down therein and may thus rely on the provisions of Article 17 of the Vienna Convention, concerning coercion measures. In this case the Court found that the jurisdiction of the flag State was not exclusive when it assented to a request to intervene. It appears preferable, however, to delete the reference to the Vienna Convention, in so far as inspection and coercion measures may be carried out on the strength of other international instruments, including the regional cooperation agreements concluded on the basis of the Vienna Convention, such as the San José Agreement of 10 April 2003 when it enters into force. (b) State exactly what the coercion measures involve The draft law also says that during transit subsequent to rerouting, the duly authorised officers of the State may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.”
| 1
|
train
|
001-86504
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,008
|
THOMAS v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
|
The applicant, Mr William Thomas, is a British national who was born in 1941 and lives in Essex. 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 13 September 1999. In January 2001, the applicant made a claim for widows’ benefits. On 26 January 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The 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
|
001-105446
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,011
|
MULDER-VAN SCHALKWIJK v. THE NETHERLANDS
| 4
|
Inadmissible
|
Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
|
1. The applicant, Ms Hendrika Wilhelmina Mulder-van Schalkwijk, is a Netherlands national who was born in 1952 and lives in Utrecht. She was represented before the Court by Ms N.A. de Leon-van den Berg, a lawyer practising in Utrecht. 2 3. The applicant is the widow of the late Mr Marinus Antonius Mulder. Mr Mulder was born in 1954. He died on 11 March 2007 of a gunshot wound. 4. The applicant and her late husband lived in the Ondiep district of Utrecht. At the relevant time, Ondiep was an inner-city area beset by social problems including disorder caused by juvenile street gangs. 5. In the evening of 11 March 2007, towards eight o’clock, the applicant telephoned the police to report a disturbance caused by a group of youths outside the front door of the Mulders’ residence. Mr Mulder and his friend, Mr T.W., both of whom had been drinking heavily, got into a fight with the youths, who would not be persuaded to take themselves elsewhere. They were fought to the ground. Both were hurt. Mr Mulder was bleeding from his nose and from the back of his head. They were freed by the applicant and by Mr T.W.’s daughter, Ms S.W. 6. Mr Mulder then went indoors where the applicant attended to his injuries. Mr Mulder then grabbed a baseball bat which he kept in the hallway of his house and took it back into the street with him. His attackers having left, he smashed the baseball bat against the ground; it broke into two pieces. 7. Mr Mulder was passed by a police officer on a motorcycle. He tried to attract the officer’s attention but the officer did not stop. Two other police officers rode by on motorcycles; both failed to stop when signalled by Mr Mulder and turned the nearest corner. Annoyed at their failure to heed his signals, Mr Mulder then followed them around the corner. 8. One of the two motorcycle-borne police officers who had followed the first was an officer identified in the documents made available to the applicant only as Officer W201 (his real name, where it appeared, being blacked out). 9. Questioned afterwards, Officer W201 stated that he had been stationary but still astride his motorcycle, which he was in the process of parking on its side stand, when he had seen a man with a bloody face and wearing a wild expression approach him holding a large knife above his body in an underhand grip, poised to strike downwards. Caught in an awkward position and fearing that the man would stab him in the neck, where he was protected by neither his protective clothing nor his helmet, Officer W201 had drawn his service pistol and fired at close range. 10. The applicant states that Officer W201 fired entirely without warning in a situation where Mr Mulder posed no immediate threat. 11. The bullet hit Mr Mulder in the chest, passing through his heart and out through his back. Mr Mulder staggered a few paces, dropped the knife and fell to the ground. Other police officers, who had by now arrived on the scene, tried to resuscitate him but were unsuccessful. After the arrival of the ambulance, a few minutes later, the ambulance crew determined that life was extinct and there was nothing more to be done; they covered Mr Mulder’s body with a white sheet and left. 12. The site was immediately cordoned off by the police. It proved necessary to restrain members of the public, some of whom tried to force their way through the cordon while others called the police officers “murderers” and “killers”. 13. At 9.30 p.m. the same evening an officer of the National Police Internal Investigations Department (rijksrecherche) was ordered to take over the investigation from the Utrecht police force. The officer arrived on the scene at 9.55. 14. Technical investigations were carried out on the spot by forensic experts of the Amsterdam-Amstelland police force between 9.30 p.m. that evening and 3.30 a.m. the following morning. This is reflected in an official National Police Internal Investigations Department report. 15. Beginning on 12 March 2007, overall responsibility for the investigation was vested in a public prosecutor (officier van justitie) of the Utrecht Regional Court who had no ties with the police station to which Officer W201 belonged. It was this public prosecutor who ordered officer W201’s identity to be withheld from the public in view of the likelihood of threats to his safety. 16. Beginning on 18 March 2007 the investigation was conducted by the Amsterdam-Amstelland police force, though still under the responsibility of the National Police Internal Investigations Department. 17. On 11 March 2007, at 8.47.44 p.m., the applicant telephoned the police to report a group of rowdy youths outside her front door. Her husband, Mr Mulder aforementioned, and his friend Mr T.W. were trying to persuade the youths to leave; this however was proving difficult because the group was growing bigger as other youths, summoned by telephone, joined them. The police telephonist informed the applicant that there would be a police presence shortly; in the meantime, if things got out of hand, the applicant was to call again using the emergency number. 18. At 8.54.09 p.m. a woman whose name and telephone number are not recorded called the police on the emergency number to report that fighting had broken out. This information was passed on to a police patrol unit. 19. At 8.56.13 p.m. a woman whose name and telephone number are not recorded called the police on the emergency number to report fighting at a slightly different location (just around the corner from the first reported fight). This too was passed on to patrolling police officers. 20. At 8.57.08 p.m. a patrolling police officer, having arrived on the spot, reported that a fight had taken place between two gangs of youths. 21. At 8.57.35 p.m. a police officer reported a man with a knife. Almost immediately afterwards, the police officer asked for an ambulance to be sent immediately as there had been a shot fired. 22. Interviews of witnesses began the day after the fatal shooting. Except as otherwise stated, all witnesses were interviewed by an officer or officers of the National Police Investigation Department; their statements, in so far as relevant to the case before the Court, are summarised below. 23. The first to be interviewed was Officer O., at five minutes past midnight. He had arrived at the same time as Officer W201 on a motorcycle and had witnessed events from close by. He had seen a man with a knife making stabbing movements and run towards Officer W201. He had seen Officer W201 draw his service weapon and fire. He estimated the distance between the two at the time when the shot was fired as one metre. Officer W201 had tried to resuscitate the man but had desisted when he saw someone approach him with a piece of wood. Officer O. had taken Officer W201 across the road and made him sit down on the kerb, and had reported the events to the police station by radio. 24. Mr T.W. was interviewed at 1.55 a.m. He had got into the fight with the youths alongside Mr Mulder. He had seen Mr Mulder leave his house holding a shiny object and pursue the youths around the corner, where the police officers on motorcycles had already gone. He had then heard a bang from around the corner; when he arrived there, Mr Mulder was lying on the ground with a policeman trying to resuscitate him. 25. Police Officer H., interviewed at 1 p.m., stated that he had heard a colleague on the radio call out that there was someone brandishing a knife. He had arrived after the shot had been fired and had tried to resuscitate him. 26. Police Officer W201 was heard as a witness, but cautioned that he was not required to incriminate himself. He stated that he had had to draw his weapon three weeks before, when a burglar who had been caught red-handed had threatened him with a screwdriver and a crowbar; he had managed to resolve the situation without firing by kicking the man to the ground. A few years earlier he had disarmed someone of a cocked pistol with which the latter had just committed a robbery; this had required Officer W201 to threaten to draw his own service weapon. 27. On the evening of 11 March 2007 Police Officer W201 had been patrolling with Police Officer O. on a BMW F650 motorcycle. His service pistol had a round chambered. When trouble was reported in the area where the shooting later took place, he had gone there, followed by Officer O. Arriving there, he had seen a group of people and had heard shouting; he had stopped to investigate. As he was shifting gear into neutral and making to park the motorcycle on its side stand, a man had come running towards him from the right, shouting threats and abuse. After checking that the motorcycle was in neutral gear, Officer W201 had looked up and seen that the man was five or six metres away. The man’s face had been covered in blood, he had been wearing a furious expression and he had brandished a knife with a large blade. Officer W201 had pointed at the man and shouted at him to drop the knife; the man had not reacted but had continued towards Officer W201. Feeling threatened, and holding the motorcycle upright against his left leg, he had drawn his pistol and fired. The man had staggered and fallen, still holding the knife. Officer W201 had then parked the motorcycle on its side stand and had attempted to administer first aid. It was only then that he realised that he had shot the man. There had been a smell of alcohol. 28. Officer W201 remembered little after that. Police colleagues had taken him off to the police station. 29. Officer H., interviewed at 3 p.m., had been the first police motorcyclist to arrive in the area. He had pursued a youth, then returned when he had heard about a knife. He had seen a man lying on the ground. He had seen Officer W201’s motorcycle parked on its side stand. He had helped administer first aid to the man. 30. Officer O. was interviewed a second time at 3.15. He confirmed his earlier statement and that of Officer W201. He added that he too had drawn his service pistol. 31. Officer S., a woman police officer, was questioned at 5.30 p.m. She had arrived after the shot had been fired. She and another woman police officer, Officer Ha., had followed the applicant home to take a statement from her. The applicant had told her about the trouble caused by the youth gangs and about Mr Mulder’s tendency to become aggressive when drunk. Others had been in the house at that time; the atmosphere had turned threatening and the two police officers had had to be escorted out of the house. 32. Officer Ha. was interviewed the following day, 13 March 2007, at 10.10 a.m. She had arrived after the shot had been fired and had helped to cordon off the area. She had met the applicant, who had told her that Mr Mulder had come home drunk and there was a baseball bat missing from the hallway. She had accompanied the applicant home; when other inhabitants of the neighbourhood started to arrive, the atmosphere had turned emotional. 33. Ms V.P., interviewed on 13 March 2007 at 10.15 a.m., was the wife or companion of Mr T.W. She had been told by her daughter, Ms S.W., that Mr T.W. and Mr Mulder had been beaten up and Mr Mulder had been shot. 34. The applicant was interviewed on 13 March 2007 at 2.15 p.m. She stated that the neighbourhood had deteriorated since the decision had been taken to demolish it; longtime residents had left and youth gangs, previously unknown, had come from elsewhere to make trouble. 35. She related how she had called the police to complain about the youths in front of her house. She described the fight between Mr Mulder and told how Mr Mulder had gone after the youths with the baseball bat. She had heard the shot, but not seen it fired. She had been very surprised to learn that Mr Mulder had had a knife; she did not understand and was not aware of a knife being missing from her kitchen. 36. Ms S.W., interviewed on 14 March 2007 at 9.45 a.m., was the daughter of Mr T.W. She confirmed her father’s statement. She described the way in which Mr Mulder had held the knife in an underhanded grip, behind his forearm; she had tried to take it from him but had not been able to. 37. Mr F.D., interviewed on 15 March 2007 at 3.03 p.m., lived across the street from the applicant and Mr Mulder. He had seen Mr Mulder fight the youths, enter his home and come back outside with a piece of wood and he had seen the three police officers pass on motorcycles. He had heard, but not seen, the shot fired; he had heard a woman screaming; and he had seen the police raise a tent. 38. Ms C.B., an eleven-year-old girl, was interviewed on 15 March 2007 by a female vice squad officer belonging to the Flevoland police force, with a male vice squad officer of the Utrecht police force in attendance. She stated that she had followed the events from her bedroom window. She said, without being asked, that the police officer had held a weapon and pointed it at a man who had not been holding a knife. Under questioning, she stated that the police officer had held the weapon in both hands and the man might perhaps have been holding a knife after all. She had not seen the police officer straddling a motorcycle. This interview was transcribed by an officer of the National Police Internal Investigations Department. 39. Ms M.J.M. was interviewed on 16 March 2007 at 10.28 a.m. She lived just across the road from the applicant and Mr Mulder. She had seen a group of people including two women. One of the women had been wearing a blouse in a red and white floral pattern; Ms M.J.M. had subsequently been told that that was the wife of the later victim, holding a knife. Her sister-in-law, visiting with her husband, had drawn her attention to it. She had heard the shot, but not seen it. 40. Ms J.H., interviewed on 16 March 2007 at 10.40 a.m., lived in the same street as the applicant and Mr Mulder. She had seen two police motorcyclists passing and had heard the shot fired. Very shortly afterwards she had seen a young woman get into a car and drive away. This woman had been wearing something pink or red. 41. Ms M.P., who was interviewed on 16 March 2007 at 2.05 p.m. by the Utrecht police (i.e. not by the National Police Internal Investigation Department), was the Mulders’ next-door neighbour. She had seen Mr Mulder getting beaten up by the youths. She had seen the baseball bat but no knife, and she had not seen the applicant holding anything. 42. Mr M.T., interviewed on 16 March 2007 at 2.39 p.m. also by the Utrecht police, had witnessed a man being beaten up. He had gone home to go to bed. He had later been woken by his wife who had told him that Mr Mulder had been shot dead. 43. Mr M., interviewed on 16 March 2007 at 4.40 p.m. by the Utrecht police, was the companion of Ms M.P. He had witnessed the fight, but had seen neither a baseball bat nor a knife. 44. Ms M.P. was interviewed anew on 22 March 2007 at 3 p.m., this time by an officer of the National Police Internal Investigation Department. She confirmed the statement which she had made earlier to the Utrecht police. 45. Ms M.J.M., who had said earlier that she had seen a woman with a knife, was interviewed again on 28 March 2007 at 1.55 p.m. She again stated that she had seen a woman with a knife, wearing a blouse in a floral design, standing next to another woman whom she could not identify. She had not seen the knife handed over. She drew a picture showing the two women in front of the house inhabited by the applicant and Mr Mulder. 46. Mr P.C.M. was interviewed on 28 March 2007 at 6.52 p.m. He had been visiting his sister Ms M.J.M. He had seen two men and two women, he had seen a man striking the ground with a baseball bat, which a woman had picked up and taken indoors. He had seen a police officer pass on a motorcycle and a man shouting to draw his attention, and he had heard a shot shortly after the police officer had turned the corner. 47. Ms S.H. was interviewed on 28 March 2007 at 7.55 p.m. She was the wife of Mr P.C.M. and sister-in-law of Ms M.J.M. She had seen a woman with a knife during the fighting. She had seen another woman pick up the baseball bat. She had seen the police officers on motorcycles turn the corner and heard the shot. 48. The applicant was interviewed again on 2 may 2007 at 10.10 a.m. She stated that she had got Mr Mulder out of the fight and taken him indoors to clean him up. He had been drunk. He had picked up a baseball bat and taken it out, then broken it on the pavement. She had then picked up the longer piece and disposed of it. 49. The first police officer had ridden past on a motorcycle. Mr Mulder had tried to make him stop and shouted to draw his attention. Two others had ridden past. Mr Mulder had gone after them, followed by the applicant. The applicant had just turned around to close the door when she had heard the shot fired. She had run to the corner. She had seen Mr Mulder lying on the pavement. A police officer had stopped her getting any closer. 50. The applicant had been wearing black trousers and a sweater in black and white stripes. Ms S.W. had been wearing tight trousers and, as she recalled, a brown sweater. She knew nothing of a blouse in a red and white floral print and there had been no other women present. 51. When it was suggested to her that Ms S.W. might have had a knife, she stated that she had not seen any knife that evening. Ms S.W. and Mr T.W. had told her about the knife afterwards. 52. Interviewed again later that day, the applicant stated that she had moved to another dwelling. She was prepared to show her kitchen knives to the police. Photographs of knives were included in the file. 53. Mr T.W. was interviewed anew on 4 May 2007 at 10 a.m. He had seen Mr Mulder holding a baseball bat in his left hand and a knife in his right. He did not remember where the applicant and Ms S.W. had been at that moment. Nor did he recognise the knife. He had been drunk that night. 54. Ms S.W. was interviewed on 9 May 2007 at 11.45 a.m. She and the applicant had intervened in the fight. After fighting had stopped, she had seen Mr Mulder holding a baseball bat. He had gone round the corner. She thought that the applicant might have gone back indoors at that point. She had seen a police officer pass on a motorcycle and had tried to wave him down. At that point she had seen Mr Mulder holding a knife. She had tried unsuccessfully to take it from him. He had been holding it by the grip, blade upwards, inside his lower arm. He had been overwrought. She did not know where the knife had come from; maybe from one of the youths. Nor did she understand how Officer W201 could have felt threatened; she thought the distance between him and Mr Mulder had been approximately five metres, but she admitted that she had not seen the shot fired. 55. Officer E.V. had submitted a written statement (see below). Interviewed on 23 May 2007 at 3.30 p.m., he stated that he had seen Mr Mulder get drunk and become aggressive in a football club canteen. 56. Ms J.H. was interviewed a second time on 7 June 2007 at 1.30 p.m. She stated that she had seen a woman aged between 22 and 27, wearing grey and pink, run after the youths, get into a car and drive away at high speed. 57. Ms B.C.Z. was interviewed on 12 June 2007 at 1.45 p.m. She had been visiting her friend Ms J.H. She had heard two shots fired. She and Ms J.H. had gone to the window. They had seen a woman leaving the house of the applicant and Mr Mulder; the woman had got into a car and driven off, then returned later with a man in a different car. Together they had entered the applicant’s home. 58. Police Officer W201 was interviewed by the investigating judge (rechter-commissaris) on 27 June 2007. He confirmed what he had said earlier. He was still very upset by what had happened. 59. Officer B.H. submitted a written statement, dated 15 March 2007, of the events as he had witnessed them. He had been patrolling in a police car when he was informed of the disturbance caused by the youths. He had heard shouts about a knife on the police radio. Having arrived, he learned that a man had been shot; the man had been breathing heavily. He had tried to resuscitate the man. When the ambulance arrived, it had driven over the knife. The man having died in the meantime, the ambulance crew had covered the body with a white sheet and left. 60. Officer B.H. had later gone into the applicant’s home; he and woman police officers S. and Ha. had been able to leave only with difficulty. They had been addressed as “killers” by persons present in the house. 61. Officer E.V. submitted a written statement dated 16 March 2007. He had known Mr Mulder personally. Mr Mulder had told him about the nuisance caused by the youth gangs; Officer E.V. had advised him to call the police or mobilise the neighbourhood to involve the police in the matter. Mr Mulder had subsequently told him that the annoyance caused by the youth gangs had decreased as a result. 62. Officer He. submitted a written statement also dated 16 March 2007. He had been the emergency aid co-ordinator at the time. He had been patrolling in a car when he had heard shouting about a knife on the radio, and later that there had been a shooting incident. Arriving at the scene of the incident, he had seen a man lying in the recovery position and a motorcycle parked next to him. He had been directed towards Officer W201, who had been seated on the kerb across the street and obviously in great distress. He had had Office W201 taken to the police station and had had the area cordoned off in order to preserve it for forensic investigation. He had had Officer O. removed to a different police station from that where Officer W201 had been taken, so that he could be de-briefed. When the situation threatened to get out of hand – he mentioned a professional criminal who had telephoned his henchmen – he had summoned up reinforcements. 63. Officer Ha. submitted a written statement dated 19 March 2007. It relates how she and her woman colleague S. had accompanied the applicant to her home. The applicant had told them that she had called the police in anticipation of her husband’s return, expecting him to be drunk, and had described the fight with the youths. Mr Mulder had gone back into the house, after which the baseball bat had been gone. She had heard, but not seen, the shot. When other people had crammed into the applicant’s home, the atmosphere had turned aggressive. 64. Skin and clothing samples taken from Mr Mulder’s body were tested by a forensic expert of the Amsterdam-Amstelland police force for the presence and concentration of gunshot residue. In a report dated 7 May 2007 it was determined that the fatal shot had been fired from a distance of between half a metre and one metre and a half. 65. Officer W201’s service weapon and the spent cartridge and bullet found at the scene of the shooting incident were examined by a forensic expert of the Amsterdam-Amstelland police force. A report dated 9 May 2007 concluded “with virtual certainty” (met aan zekerheid grenzende waarschijnlijkheid) that the cartridge and bullet had been fired using that particular weapon. 66. Mr Mulder’s body was subjected to autopsy at the Netherlands Forensic Institute (Nederlands Forensisch Instituut; “NFI”) on 13 March 2007. Following the autopsy, the body was released to Mr Mulder’s next-of-kin for disposal. 67. Samples of body tissue and fluids were taken and examined by a toxicologist. In the resulting report, dated 29 May 2007, it is stated that alcohol was found in Mr Mulder’s femoral blood, in a concentration of 2.25 milligrammes per millilitre, and in his urine, in a concentration of 2.75 milligrammes per millilitre. These amounts were quite enough to have influenced Mr Mulder’s consciousness and behaviour. 68. The knife found on the ground close to Mr Mulder’s body was tested at the NFI. In a report dated 20 June 2007 it was found to bear DNA matching that of Mr Mulder. There was a chance of 1 in 200 million that the DNA was someone else’s, and no match had been found among the DNA profiles stored in the national database. 69. Photographs were made of the scene of the incident, both before and after Mr Mulder’s body was removed; some show Mr Mulder’s body, both clothed and naked. Others identify objects such as the spent cartridge, the bullets and blood spots. The investigation file also contained detailed street plans showing the location, in so far as they can be determined, of vehicles and witnesses at relevant times. 70. On 19 April 2007 the National Police Internal Investigations Department officer conducting the investigation sought permission to tap fixed-line and mobile telephones used by witnesses to the shooting incident, including the applicant, Mr T.W. and Ms S.W., in the hope that information thus obtained might clarify, in particular, the identity of the woman whom certain other witnesses had seen holding a knife. 71. A preliminary judicial investigation (gerechtelijk vooronderzoek) was opened on 23 April 2007. 72. On 16 May 2007 the same officer requested the termination of the measures, since they had yielded no usable information. 73. The coroner (lijkschouwer) arrived on 12 March 2007 at 1 a.m. and examined Mr Mulder’s body. He found that the likely cause of death was a gunshot wound caused by a projectile passing through the body. 74. Other official reports summarise interviews by telephone with other witnesses who had known Mr Mulder in life and with the ambulance crew. 75. One report, dated 22 May 2007, relates that further attempts were made to interview Ms S.W. anew but that these had been abandoned after they had proved unfruitful. 76. On 11 July 2007 in the early afternoon officers of the National Police Internal Investigations Department determined the lines of sight from the window of Ms C.B.’s bedroom (see paragraph 38 above). 77. It is also recorded in official reports that the precise trajectory of the bullet could not be determined for lack of sufficient reference points, and that a reconstruction of the incident took place on 1 November 2007 in a shed outside Utrecht. 78. On 24 January 2008 the Advisory Board on Police Use of Firearms (Adviescommissie Politiëel Vuurwapengebruik), informed of the public prosecutor’s provisional intention not to prosecute, issued an advisory opinion. It stated, among other things, that Ms C.B.’s statement was unusable, inter alia because she had volunteered the information that she had not seen any knife without waiting to be asked. Conversely, the statements of Officer W201 and Officer O. were considered plausible. 79. The Advisory Board considered that since Officer W201 had not warned Mr Mulder that he might fire, his use of his firearm had not conformed with official instructions, but it had constituted legitimate self-defence in the circumstances. It was noted in this connection that police officers were expected to resist violence rather than evade it; seen in this light, and even assuming that flight had been an option open to Officer W201, it was completely understandable that Officer W201 had first attempted to persuade Mr Mulder to desist and drop the knife rather than flee. 80. The public prosecutor’s intention not to prosecute Officer W201 was thus endorsed. 81. On 6 March 2008 the public prosecutor wrote to the applicant’s counsel informing him of the decision not to prosecute Officer W201. 82. On 16 May 2008 the applicant, through her counsel, lodged a written complaint against this decision with the Amsterdam Court of Appeal. She alleged that Ms C.B.’s statement (paragraph 38 above) cast doubt on the version of events according to which officer W201 had been constrained in his actions through standing astride his motorcycle. Be that as it might, Officer W201 had placed himself in an awkward position through failing to maintain sufficient distance from Mr Mulder despite the threat posed by the latter. The net result of not prosecuting Officer W201 was moreover to deny the applicant the opportunity to be heard as a victim and claim damages as an injured party. 83. On 20 November 2008, following a hearing in camera during which Officer W201 was heard in the absence of the applicant or her counsel, the Court of Appeal gave a decision declaring the complaint unfounded. It was sufficiently established that Officer W201 had acted in legitimate self-defence; the investigation had been extensive, detailed and independent. 84. The standard service firearm issued to the Netherlands police is a version of the German-made Walther P5 double-action semi-automatic pistol. It fires 9x19 mm (also known as 9 mm parabellum or 9 mm Luger) cartridge rounds. 85. The weapon has a number of safety features, including an internal firing-pin retaining mechanism which prevents the firing-pin from striking the primer of the cartridge unless the trigger is pressed all the way through. This enables the weapon to be carried safely with a round chambered and ready for immediate use while preventing its being fired accidentally. 86. Standing advice to police officers is to carry the weapon with a round chambered so as to have it ready for immediate use in case of need. 87. The relevant domestic law is set out in Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 249-267, ECHR 2007...
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001-97928
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BGR
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CHAMBER
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CASE OF SHISHKOVI v. BULGARIA
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Violation of Art. 3;Violation of Art. 13
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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5. The applicants were born in 1953 and 1978 respectively and live in Sofia. They are father and son. 6. On 8 August 1999 the applicants and friends of theirs were holidaying beside a lake near Sofia. In turns, members of the group were riding a jetboat. On several occasions some of them rode close to a sports centre on the opposite shore. 7. Some time later, unexpectedly, two cars without licence plates arrived at the lakeside location where the applicants' group was situated. Seven men wearing camouflage uniforms got out of the cars, some of them wore vests with “Police” written on the back. The men were armed with sub-machine guns. They started insulting the applicants and their friends and threatening them, both verbally and by pointing their guns at them. The men made the applicants and their friends lie flat on the ground and then hit and kicked them repeatedly. The beating continued for several minutes. At the same time, the men repeatedly shot at the applicants' jetboat. After that they left. 8. On 10 and 11 August 1999 the first applicant was examined by doctors who established that he had four broken ribs, a superficial wound on his left temple and several bruises on his face, back and legs. The second applicant suffered bruises on his face, head and right leg. 9. On 11 August 1999 the applicants complained to the prosecution authorities. On 16 and 19 August 1999 the first applicant lodged additional submissions, stating that he and his son were being followed and that he had been threatened in an attempt to induce him to withdraw his complaints. 10. The prosecution authorities opened criminal proceedings in relation to the beating and, on unspecified dates, brought charges against seven police officers working in the Operative Investigation Directorate, a specialised unit of the Ministry of the Interior. It was established that, at the relevant time, the accused had been dispatched to the area where the beating had taken place, with the task of guarding a Ministry of the Interior training centre and a forest reserve. 11. The prosecution authorities collected witness testimonies from the applicants and their friends, as well as from other witnesses, including eyewitnesses to the beating. They commissioned a ballistic expert and carried out confrontations and identity parades. 12. On an unspecified date the applicants were admitted as civil claimants in the criminal proceedings. 13. Up to June 2003 the investigation had not resulted in indictments against the accused. 14. On an unspecified date after June 2003 the accused, relying on a new Code of Criminal Procedure provision, Article 239a (see paragraph 24 below), requested that their case be brought to court or terminated. 15. In October or November 2003 the prosecution indicted the seven police officers for causing bodily harm and for disorderly conduct. 16. On 19 December 2003 the Sofia Military Regional Court remitted the case, finding that the prosecution authorities had committed procedural violations. In particular, it found that: 1) it was not clear from the indictment whether the accused had been armed with sub-machine or automatic guns during the attack against the applicants; 2) the indictment had been based on insufficient evidence, and, in particular, on no material evidence; 3) two of the witnesses had been examined superficially; and 4) the prosecution had failed to comment on exonerating witness testimony. 17. On 21 January 2004 the prosecution filed a revised indictment against the police officers. 18. In a decision of 26 January 2004 the Military Regional Court established that the procedural violations found earlier had not been remedied. In addition, new deficiencies were identified: 1) the prosecution had not commented on the possibility of bringing charges for the verbal threats; 2) the date of the record of the examination of a witness had been amended, but this had not been certified by a valid signature of the witness; and 3) the records showing that the accused had been notified of the results of the investigation had been printed out on a printer but the respective dates and hours had been added on a typewriter; again, this additional information had not been certified by the accused's signatures. 19. Concluding that the deficiencies thus identified amounted to material procedural breaches within the meaning of Article 239a of the Code of Criminal Procedure (see paragraph 24 below), the Military Regional Court terminated the criminal proceedings. 20. The applicants and the prosecution authorities appealed against this decision arguing that the Military Regional Court had erred in concluding that the prosecution authorities had committed material procedural breaches. On 22 March 2004 those appeals were rejected by the Military Court of Appeal because decisions under Article 239a of the Code of Criminal Procedure were not subject to appeal. 21. Apparently, some internal inquiry into the officers' conduct was carried out by the Ministry of the Interior, but the Court has not been informed of its course and findings. No disciplinary punishments were ever imposed on the police officers allegedly involved in the beating. 22. Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another person. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one. 23. Persons claiming that they have been beaten by police officers can seek damages under the State Responsibility for Damage Act 1988. The remedy has been described in more detail in the Court's judgment in the case of Krastanov v. Bulgaria (no. 50222/99, §§ 45-46, 30 September 2004). 24. In June 2003 the new Article 239a of the Code of Criminal Procedure 1974, in force at the relevant time, introduced the possibility for an accused person to request to have his case examined by a court if the preliminary investigation has not been completed within the statutory time-limit (two years for investigations concerning serious crimes and one year for all other investigations). In such instances, the courts would send the case to the relevant public prosecutor's office with instructions to either enter an indictment against the accused within two months or discontinue the criminal proceedings. If the prosecutor's office failed to take action, or if the case was remitted for material procedural breaches, which were not remedied within a new time-limit of one month, the courts would terminate the criminal proceedings themselves. The alleged victims could not participate in the proceedings under Article 239a of the Code of Criminal Procedure. 25. Under domestic law, as it stood at the relevant time, victims of crimes could only participate in pre-trial proceedings as civil claimants. In this capacity they could acquaint themselves with the case file, present evidence, make requests and appeal against acts of the courts to the extent that this was related to their civil claim.
| 1
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train
|
001-119040
|
ENG
|
RUS
|
COMMITTEE
| 2,013
|
CASE OF SAKHAROVA v. RUSSIA
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
|
Elisabeth Steiner;Linos-Alexandre Sicilianos;Ksenija Turković
|
7. The applicant was born in 1952 and lives in Novocherkassk, the Rostov Region. 8. She is a widow of a military officer. She sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of her pension on account of the increase of the monetary compensation paid in respect of a food allowance. 9. On 18 August 2004 the Justice of the Peace of the 6th Court Circuit of Novocherkassk granted her claim and ordered the military commissariat of the Rostov Region to pay the applicant 17,216.06 Russian roubles (RUB) in pension arrears, as well as to readjust future payments in line with the increase of the food allowance. The claim against the commissariat of Novocherkassk was dismissed. 10. The judgment was not appealed against and entered into force. It has not been executed. 11. According to the Government, at some point the military prosecutor’s office started an inquiry into lawfulness of several sets of court proceedings concerning military pension arrears throughout the Rostov region. 12. On 14 October 2004 the defendant lodged a request for supervisory review of the case. 13. On 13 January 2005 the Presidium of the Rostov Regional Court quashed the judgment on the ground of a violation of substantive law and remitted the case to the President of the Novocherkassk Town Court for the transfer to a different court for a fresh examination. The Presidium found, in particular, that the Justice of the Peace incorrectly calculated the amount of the food allowance, having thus misinterpreted the material law. 14. On 28 April 2005 the Justice of the Peace of the 5th Court Circuit of Novocherkassk discontinued the proceedings on the ground of the applicant’s repeated failure to appear. The applicant did not appeal against the decision, and it entered into force. 15. According to the Government, at some point several unspecified military officials of the Rostov Region had been charged with and convicted of negligent attitude to duties which had caused damage to the State (Article 293 of the Criminal Code of the Russian Federation). The Government did not provide any documents or further details in this respect.
| 1
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train
|
001-77109
|
ENG
|
ISL
|
ADMISSIBILITY
| 2,006
|
GUDMUNDSSON v. ICELAND
| 4
|
Inadmissible
|
David Thór Björgvinsson
|
The applicant, Mr Sigurdur Gudmundsson, is an Icelandic national who was born in 1964 and at the time of lodging the application was serving a prison sentence in Iceland. He is represented before the Court by Mr Sveinn Andri Sveinsson, a lawyer practising in Reykjavik. The Icelandic Government (“the Government”) are represented by their Agent, Mr Thorsteinn Geirsson. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant and his wife, K., ran a private day-care centre at their home in the suburbs of Reykjavík. On Wednesday, 2 May 2001, at 9.00 a.m., a nine month old boy, S., was brought by his mother to the applicant and his wife. During the night the boy had been restless, awake and crying. Usually the boy had a nap twice during the day but that day he refused to sleep before lunch-time and had no appetite. Between 10.30 a.m. and noon the applicant left the centre for a meeting. His pregnant wife was close to giving birth to their child and went to see a doctor at 1 p.m. At around 2 p.m. she returned home and she sat down in the play-room; the applicant took S. to put him to sleep in a pram, placed in the garage. An audio detection device (baby-sitter) was set in motion in the garage. A few minutes later the applicant came back into the apartment. According to the applicant, nothing unusual happened when he put the baby to sleep. He just placed the boy in the pram and the boy immediately fell asleep. The applicant stayed with him for a couple of minutes. His wife stated that she did not see or hear anything unusual while attending to the children who were not sleeping. Two hours later, the applicant tried to wake up the baby, but he was unconscious. His wife took the baby and put him on a changing blanket. She removed the baby’s napkin since it was soiled. The applicant telephoned an emergency service and a few minutes later emergency personnel arrived. S. was taken urgently to hospital. In the morning of Friday 4 May 2001, the baby died. After the formal autopsy was completed on 6 September 2001, the couple was arrested. The relevant report, drawn up by a forensic pathologist, T.S., concluded that S. had died of the so-called Shaken Baby Syndrome. It was found, firstly, that the injuries that appeared to have caused the child’s death must have been caused less than 48 hours before death. Secondly, the baby had lost consciousness immediately after the fatal injuries had occurred. Since the child had been playing in the play room when the applicant’s wife arrived, the incident must have occurred when the applicant put the baby to sleep. Subsequently, the applicant was charged under Article 215 of the Penal Code with having shaken the baby in such a fierce or other manner as to cause his death. He and K. were also charged with offences related to the manner of running of their day-care centre, in that they had undertaken to provide care for many more children (21) than they were allowed (12). This part of the case will not be described further below. Prior to the trial hearing before the Reykjanes District Court, the State Prosecutor obtained the State Medico-Legal Board’s (“the SMLB”) comments on the forensic expert report, which confirmed the conclusions contained in the report. Extensive evidence was submitted to the District Court, including voluminous police investigation files, police reports, forensic pathology documents, and photocopies from medical publications as listed in an attachment to the autopsy report. Statements were received from the applicant and K, and twelve witnesses were heard, which included all the witnesses called by the defence. Expert witnesses K.K., T.S. and O.T., all summoned at the prosecution’s request, also gave oral testimonies and answered questions. According to the applicant, neither the forensic specialist, nor the doctors who had attended to the boy, nor the SMLB in its initial statement mentioned the differences in international medical opinion regarding the Shaken Baby Syndrome. In its judgment of 1 March 2002, the District Court, relying on the evidence given by the prosecutor’s expert witnesses and the conclusions of the SMLB, convicted the applicant of the charges and sentenced him to 3 years’ imprisonment for having shaken S. to death. He was also sentenced to pay ISK 1,000,000 in fines and was ordered to pay compensation to S.’s parents. Subsequently the applicant, represented by a new lawyer (who is also representing him in his application to the European Court), appealed against his conviction and sentence to the Supreme Court. In this context, the defence sent a translation of T.S.’s medical forensic report to a number of foreign medical and forensic experts for comment, eight of whom produced statements which, according to the applicant, indicated that he was not guilty. The cause of S.’s death was fraught with doubt, it not being established that it was the Shaken-Baby Syndrome rather than any other cause that was involved. By a letter of 7 October 2002 to the Supreme Court, the Prosecutor General stated that he considered it imperative, before a final judgment be passed on the merits of the case, to contact the SMLB again in order to obtain an answer to the question whether the medical statements of four of the foreign experts submitted by counsel for the applicant, to the extent that they concerned the alleged cause of death of the baby boy in question, had the effect of changing in any respect the SMLB’s conclusions submitted to the District Court. The Prosecutor general listed 7 questions that in his view should be addressed to the SMLB. He further stated: “The Prosecutor General furthermore respectfully asks the Supreme Court of Iceland to send an enquiry to the forensic pathologist [T.S.], asking her whether the writings of the four above writers and their suggestions and comments relating to the child [S.]’s assumed cause of death, have the effect of changing in any respect the inferences she draws in the autopsy report on the child’s cause of death, cf. pages 427 - 444 of the abstract, all with a view to the points made under items 1-7 above. If granting this request is not deemed possible, the prosecution requests an opportunity to obtain [T.S.]’s testimony as a witness before the Supreme Court on the autopsy of the child [S.]and the assumed cause of his death.” On 10 October 2002 the Supreme Court forwarded the Prosecutor General’s letter of 7 October to counsel for the applicant, giving him an opportunity to comment within two weeks. On 10 October 2002 counsel for the defence replied requesting that 16 questions formulated in his letter be put to the SMLB. His letter then went on as follows: “On the occasion of the Prosecutor General’s letter to the Supreme Court concerning questions to be put to the SMLB, it must be noted that according to Section 5 of the SMLB Act no member of the Board may pass an opinion on a matter on which he has previously taken a stand, personally or in office. The conclusions of the opinions referred to by the Prosecutor General in his letter largely refute the opinion of the SMLB’s Forensic Section of 16 November 2001. By asking for the Board’s observations on the opinions of the foreign experts, the Board is in reality being asked to comment on its own conclusions. A question mark can be placed on how reasonable such an arrangement is. The defence considers at least obvious that all the SMLB’s members who on 14 December 2001 took part in handling the entry from the Forensic Section’s meeting of 16 November lack competency for approving an opinion prepared in response to questions posed by the Prosecutor General, the defence, and, as the case may be, the Court. At the end of his letter, the Prosecutor General requests that [T.S.] will be asked whether the conclusions of the autopsy report should be changed on account of the opinions of the foreign experts. If it is not deemed possible to request her written replies, the Court is asked to call for her oral statement. If the Supreme Court decides to call for [T.S.]’s oral statement, the defence must demand that equality in this respect will be respected, and that the defence will be permitted to obtain the statement of some of the foreign experts who have expressed an opinion of the prosecution’s autopsy report.” On 22 October 2002 the Supreme Court decided, in the light of the fact that the opinions and conclusions of the forensic expert TS were given decisive importance in the District Court’s assessment and that the foreign medial statements had been submitted in particular to challenge those conclusions, to order the SMLB to give a reasoned opinion on 10 specific questions. On 23 October 2003, without awaiting a decision by the Supreme Court, the Prosecutor General addressed seven questions to forensic pathologist TS, which in substance were the same as the first seven questions addressed by the Supreme Court to the SMLB. She replied to the questions on 11 December 2002, concluding that the foreign expert statements did not alter the inference she had drawn in her earlier autopsy report On 16 January 2003 the SMLB replied to each of the questions and, composed of the same members as in the first round, maintained its previous conclusions. It was accompanied by an assessment by two ophthalmologists, E.S. and E.G., of 6 December 2002. On 11 March 2003 counsel for the defence submitted additional observations regarding the phenomenon of “Shaken-Baby Syndrome” and disputing the Prosecutor General’s arguments. In the proceedings before the Supreme Court, the defence maintained that the cause of S’s death could not be determined with any certainty as this was wide open to doubt, and that no medical proof had been obtained of a “Shaken Baby Syndrome” rather than some other cause of death. In this context the applicant chiefly referred to the statements of the foreign experts. This had consisted, firstly, of the opinions of four foreign specialists to whom the defendant’s counsel had sent written material relating to S.’s autopsy and state of health, and additional opinions of three of them after further replies were obtained from forensic pathologist T.S to the questions posed by the Prosecutor General. Secondly, the opinions of four additional experts, who had been delivered the same written material for examination, were submitted. After holding an oral hearing at which the Prosecutor General and counsel for the defence spoke twice, the Supreme Court, by a judgment of 3 April 2003, upheld the applicant’s conviction by the District Court but reduced the sentence to 18 months’ imprisonment. In its judgment the Supreme Court relied on the assessment made by the SMLB and rejected the written foreign expert statements as guesses and speculation. In its judgment the Supreme Court pointed out that the applicant had failed to avail himself of the opportunity under Article 63 of the Code of criminal Procedure to ask it to appoint experts to provide an opinion with a view to refuting the medical inferences provided by domestic medical doctors and experts in the case. The defendant’s collection of evidence had had the effect that the Supreme Court had found it appropriate to seek opinions from the SMLB in addition to those already obtained on the initiative of the Prosecutor General, which was possible under section 2 of the State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”). In a reasoned opinion the SMLB had rejected the theory that S’s death could have been due to infant scurvy or “Barlow’s Disease”, allergic encephalitis, an ophthalmic disease, a bleeding disorder or chronic brain haemorrhage, vaccination, the mother’s epilepsy or her use of the drug Tegretol, or to a digestive disorder resulting in endotoxinemia, acute scurvy and haemorrhage. The SMLB had stated in response to a specific question that all possible examinations had been conducted in order to preclude causes of death other than the one stated in the autopsy report. The Prosecutor General had asked forensic pathologist T.S. substantially identical questions on account of the writings of the foreign experts, and her replies and those of the State Medico-Legal Board were in full harmony. The relevant provisions of the Code of Criminal Procedure (Act No. 19/1991) provide: Article 63 “1. The judge may, as requested by a party or of his own accord, appoint an expert or experts to provide an opinion in a criminal case. 2. The judge may turn directly to any person who has been officially appointed or accredited to give an opinion, provided that the person has the duty of providing the evidence or is willing to do so.” Article 157 “1. Supreme Court cases shall generally be argued orally. The Court may however decide that a case shall be argued in writing, if particular reasons commend this. The Supreme Court may also decide to receive a case for adjudication without separate argumentation if this is requested unanimously by the parties, or if a judgment is appealed against solely with respect to the determination of sanctions. ... 3. The Supreme Court may, to the extent that the Court finds it necessary, decide to take oral evidence, provided that it deems, in the light of the facts, that such [...] evidence may influence the outcome of the case.” Article 159 “... 4. The Supreme Court cannot review the findings of a district court relating to the evidential value of evidence presented orally, except if the witness in question, or the defendant, has provided a statement to the Supreme Court. 5. If the Supreme Court deems possible that the district court’s findings concerning the evidential value of oral evidence presented in court may be erroneous to the extent of affecting the outcome of the case, and the witness or the defendant, as applicable, has not provided an oral statement to the Supreme Court, the Supreme Court may invalidate the district court’s judgment and procedure to the extent necessary for making possible the submission of oral evidence there and a renewed conclusion.” In relation to the statutory provisions quoted above, the Government drew the Court’s attention to two judgments by the Supreme Court, respectively of 3 September 2002 and 12 September 2005, both of which concerned civil proceedings. In the latter judgment, the Supreme Court’s reasoning included the following observations: “According to the respondent’s exposition to the Supreme Court, he considers that the requested expert opinion may be of importance to his defence. In the light of the extensive consequences which the conclusions of the autopsy report may have for the outcome of this case, the respondent cannot be barred from seeking additional expert opinions, and this procedural recourse is adequately provided for in Article 63, the first paragraph, and in Article 65, the third paragraph, of Act No. 19/1991, cf. Chapter IX of the Code of Civil Procedure, Act No. 91/1991. The respondent’s request for a further expert opinion is therefore to be granted. The district court judge will be ordered to appoint in court two experts to provide replies to the questions stated in the respondent’s above request.” In the former judgment, the Supreme Court stated: “According to section 2 (1) and (2) of the SMLB Act, No. 14/1942, the Board’s role includes providing the courts with opinions on medical matters if this is required for a judicial decision. In this respect the SMLB’s role is analogous to the function exercised by an expert providing evidence in accordance with the generally applicable rules of Chapter IX of Act No. 91/1991, cf., in part, Article 60 § 3 of that Act. To the extent that statute law does not provide for any different arrangement, there is no reason not to apply those general rules to persons providing opinions under the auspices of the SMLB. According to Article 65 of Act No. 91/1991, an expert providing evidence shall, at the request of a party, appear in court and give a statement explaining his opinion and matters relating thereto. As regards the provision of such statements, the rules on witnesses in Chapter VIII of the same Act shall apply in so far as appropriate. Act No. 14/1942 contains no provisions to the effect that the members of the Board are exempted from such duty to appear in court.” The State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”), contains inter alia the following provisions: Section 2 “The State Medico-Legal Board shall have the role of providing the courts, the prosecution authorities and the supreme health authorities with expert opinions on medical matters. Among its functions shall be the provision of opinions on any medical certificates submitted to the courts, provided these are sent to the Board in accordance with a judicial decision. The State Medico-Legal Board shall provide the supreme health authorities with its opinions as to the propriety of a particular measure, action or conduct on the part of a doctor, dentist, masseur, pharmacist nurse, midwife or other similar health professional. The State Medico-Legal Board shall provide the supreme health authorities with its opinions relating to health measures of extensive scope, in particular extensive measures taken against the spreading of infectious diseases.” Section 3 “The State Medico-Legal Board shall only attend to matters referred to the Board in accordance with the provisions of Section 2, by the parties stated there. The Board shall not provide opinions on the mental condition or criminal responsibility of any person, unless an expert opinion following suitable examination has already been obtained, provided such examination has been possible. The Board shall not provide an opinion on any person’s cause of death, unless an expert opinion following autopsy, or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death, has already been obtained, provided such evidence can be obtained.” Section 4 “The State Medico-Legal Board shall seek the opinions of outside experts on matters not within the specialist knowledge of its members. Before invalidating a doctor’s certificate the board shall, if possible, offer the doctor in question an opportunity to bring forth his arguments in its support. The Board shall, if possible, consult the person in question, and his professional organisation, on any matters specifically relating to a measure, an action or conduct of a doctor or other health professional (cf. Section 2, the third paragraph), before providing its opinion.” Section 5 “No member of the State Medico-Legal Board shall take part in deciding on a matter relating to himself or his principal, or a matter with respect to which he has previously taken a stand, personally or in official capacity. If the Board becomes unable to exercise its function as a result of some of its expert members being unable to take part in deciding on a matter coming under his speciality, the Minister shall appoint another expert in his stead as the Board may propose, for considering that particular matter.”
| 0
|
train
|
001-72521
|
ENG
|
TUR
|
CHAMBER
| 2,006
|
CASE OF TÜM HABER SEN AND ÇINAR v. TURKEY
| 1
|
Violation of Art. 11;Not necessary to examine Art. 13+11
|
Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych
|
8. Tüm Haber Sen is a trade union, now dissolved, which was active between 1992 and 1995. The application was lodged by its former president, İsmail Çınar, a Turkish national who was born in 1954 and lives in Istanbul. 9. On 16 January 1992 Tüm Haber Sen was formed when its founding document was lodged with the Istanbul Governor's Office, in application of Article 51 of the Constitution. Its statutes referred, inter alia, to the right to conclude collective-bargaining agreements. The founders of Tüm Haber Sen were 851 public-sector contractual staff working in the communications field, in particular for the post office (PTT) and the telecommunications service (Türk Telecom). When it was dissolved the trade union had 40,000 members and 55 local branches. 10. On 20 January 1992 the Istanbul Governor's Office applied to the Şişli public prosecutor's office, seeking the suspension of Tüm Haber Sen's activities and the trade union's dissolution on the ground that State employees could not form trade unions. It referred in its complaint to Article 51 of the Constitution, section 1 of the Trade Union Act (Law no. 2821) and sections 22 and 27 of the State Employees Act (Law no. 657). 11. In a notice of 3 February 1992, the Principal Public Prosecutor called on the Fourth Civil Division of the Şişli District Court to suspend the trade union's activities and to order its dissolution on the ground that under the positive law State employees, who were subject to Law no. 657, were not entitled to form trade unions. 12. In their written observations submitted to the District Court on 26 March 1992, the trade union's representatives argued that the legal provisions in force did not expressly prohibit the formation of trade unions by civil servants and that an obstacle to the exercise of trade-union rights would be in breach of Turkey's international commitments as a signatory to the European Convention on Human Rights, the conventions of the International Labour Organisation, and the European Social Charter. 13. On 15 December 1992 the District Court suspended the trade union's activities and ordered that it be dissolved. 14. The trade union's representatives appealed to the Court of Cassation. 15. On 14 February 1994 the Court of Cassation quashed the District Court's judgment and referred the case back to it. In its reasoning, it stated that the fact that the words “trade union” appeared in the association's title did not make it a trade union in the technical sense, namely that it would be authorised to call strikes and to enter into collective agreements. At the most, the association could be considered as a professional organisation which aimed to protect the interests of its members, who worked in a specified sector. 16. Before the District Court, the representatives of Tüm Haber Sen argued that it ought to be considered as a trade union which was authorised to call strikes and to enter into collective agreements. On 9 November 1994 the District Court, having examined the arguments submitted by the trade union's representatives, upheld its initial judgment. 17. The trade union's representatives again submitted an appeal on points of law. 18. In a judgment of 24 May 1995, the Court of Cassation, sitting as a full court and ruling at last instance, ordered the dissolution of Tüm Haber Sen. It considered that implementation of the right to form trade unions, as set out in the Constitution, required the enactment of a general principles act. In the absence of any statutory provisions governing the legal status of trade unions for civil servants or public-sector contractual workers, the applicant trade union could not claim to have any legal status. Nor could it be considered as an association or as some form of professional organisation, since its leaders expressly presented it as a full trade union. In spite of Turkey's ratification of International Labour Conventions nos. 87 (on freedom of association and protection of the right to organise) and 151 (on protection of the right to organise and the procedures for determining the conditions of employment in the civil service) on 12 July 1993, the Court of Cassation, sitting as a full court, considered that the trade union could not rely on the conventions in question, since they were not directly applicable in domestic law and the legislature had not yet enacted implementing legislation. 19. The judgment was served on the trade union's representatives on 8 June 1995. 20. Between 26 June 1995 and 2 August 1995, all of Tüm Haber Sen's branches and sections were dissolved on the orders of the Ministry of the Interior. 21. The relevant provisions of the Constitution read as follows: “Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in their labour relations. In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation is not in conformity with law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or the association of unions. Everyone shall be free to become a member of or withdraw from membership of a union. No one shall be compelled to become a member, remain a member, or withdraw from membership of a union. Workers and employers cannot hold concurrent memberships in more than one trade union or employers' association. Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union. In order to hold a leadership position in a trade union or federation of trades unions, it is necessary to have worked as an employee for at least ten years. The status, administration, and functioning of trades unions and federations of trades unions should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” “Workers and employers have the right to form trade unions and employers' associations and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations, and to join and withdraw from such entities of their own free will. No one shall be compelled to become a member or withdraw from membership of a union. The right to form a union may only be restricted by law and for the purposes of safeguarding national security and public order and preventing crime, and for the protection of public health and public morals and the rights and freedoms of others. The formalities, conditions and procedures to be applied in exercising the right to form a union shall be established by law. It is not permitted to hold membership of more than one trade union simultaneously within the same sector of employment. The scope of the rights in this area of civil servants who do not have the status of salaried employee, and the exceptions and limitations applicable to them, shall be established by law in line with the nature of the tasks entrusted to them. The statutes, administration and functioning of trade unions and their higher bodies should not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.” “Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work. The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law. It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.” “Workers and employers have the right to conclude collective-bargaining agreements in order to regulate reciprocally their economic and social position and conditions of work. The procedure to be followed in concluding collective-bargaining agreements shall be regulated by law. The unions and federations of unions which the public employees mentioned in the first paragraph of Article 128 will be entitled to found and which do not fall under the scope of the first and second paragraphs of the same Article and also Article 54, may appeal to judicial authorities on behalf of their members and may hold collective-bargaining meetings with the administration in accordance with their aims. If an agreement is reached as a result of collective bargaining, a text of the agreement shall be signed by the parties. This text shall be presented to the Council of Ministers so that administrative or judicial arrangements can be made. If such a text cannot be concluded by collective bargaining, the points of agreement and disagreement shall also be submitted by the relevant parties for consideration by the Council of Ministers. The regulations for the execution of this Article shall be set out in legislation. It shall be forbidden to conclude or apply more than one collective-bargaining agreement in a single place of work for the same period.” “The fundamental and permanent functions required by the public services that the State, State economic enterprises and other public corporate bodies are assigned to perform, in accordance with principles of general administration, shall be carried out by public servants and other public employees. The qualifications of public servants and other public employees, procedures governing their appointments, duties and powers, their rights and responsibilities, salaries and allowances, and other matters related to their status shall be regulated by law. The procedure and principles governing the training of senior administrators shall be specially regulated by law.” 22. Section 22 of the State Employees Act (Law no. 657) of 14 July 1965, which was repealed by Article 5 of Legislative Decree no. 2 of 23 December 1972, stated that civil servants were authorised to establish and join trade unions and professional organisations, in accordance with the procedures set out in special laws. Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities. Section 1 of Law no. 4275 of 12 June 1997 restored the above provision and supplemented it with a number of conditions. The text now provides: “Civil servants shall be authorised to establish trade unions and other federations of professional organisations and to join them in accordance with the procedures set out in the Constitution and by special laws.” Section 27 provides: “Civil servants are forbidden ... to organise, call or spread propaganda about strikes. Civil servants may not take part in a strike ... may not support or encourage strike action.” 23. Article 2 of Convention no. 87 of 1948 (of the International Labour Organisation) concerning Freedom of Association and Protection of the Right to Organise provides: “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” 24. Article 5 of the European Social Charter provides: “The right to organise With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
| 1
|
train
|
001-80170
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF HACI ÖZEN v. TURKEY
| 2
|
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
David Thór Björgvinsson
|
4. The applicant was born in 1943 and lives in Şırnak. 5. The facts surrounding the arrest and detention of the applicant are disputed between the parties. 6. On an unspecified date, the applicant was contacted by two persons in the centre of Şırnak who asked him either to give them money or to help them. They did not specify what they wished the applicant to do. The applicant refused their request. On 11 June 1998, one week after this incident, they again contacted the applicant, asked him to help them and threatened him with death. As the applicant was scared, he followed their instructions. He went near to a cemetery outside the city centre where two armed men appeared. They asked him about the supplies and when the applicant told them that he did not know about the supplies, they beat him. Subsequently, four or five other plain-clothes persons carrying weapons arrived. They tied the applicant’s hands and covered his mouth. One of them had a radio with which he talked to someone whom he addressed as “my commander”. The applicant was then blindfolded, put in a vehicle and taken to the Şırnak provincial gendarmerie command. 7. During his detention in the custody of the gendarmerie the applicant was subjected to ill-treatment. In particular he was stripped naked and beaten. He was also deprived of food and water and was prevented from going to the toilet. The applicant was kept in a small and dark cell, threatened with death and insulted. Furthermore, the gendarmerie officers attempted to rape him. 8. In the evening of 11 June 1998, the applicant’s son, Mehmet Özen, applied to the Şırnak Security Directorate claiming that his father left home at around 8 - 8.30 a.m. to go to their farm and that he was seen by one of their neighbours, Ömer Katar, at around midday being abducted by an armed group of six or seven persons. On 12 June 1998 an official report was drawn up concerning Mehmet Özen’s claim. 9. On 13 June 1998 a similar protocol was drawn up containing Ömer Katar’s statement about the applicant’s arrest. He stated that he had seen the applicant being taken away by seven men who were carrying rifles. Ömer Katar testified that Haci Özen’s hands were tied and that he was being beaten by these men. 10. On 15 June 1998 the applicant was brought before a forensic doctor, Mr Veli Gül. The medical report drafted by the doctor at 1.45 p.m. on the same day referred to the following marks on the applicant’s body: a bruise on the right shoulder, scratches and bruises on the front of his right arm, bruises on the right part of his back, bruises of 2 x 2 cm on his waist, bruises on the front of his left arm, a bruise on the back of his left shoulder, bruises of 2 x 2 cm on his left hip and a trauma of 2 x 0,5 cm on his parietal bone. All the bruises on the applicant’s body were described as purple in colour. 11. On 23 June 1998 the gendarmerie officers drafted a document allegedly containing the applicant’s statements, according to which the applicant admitted to have willingly acted as a courier for the PKK and have fallen and sustained other injuries while trying to escape from the gendarmerie officers on 15 June 1998, the day of his arrest. The applicant was forced to apply his thumbprint to this document. 12. On 24 June 1998 the applicant was examined by the same doctor who noted the presence of the traces of old bruises on his shoulders and arms. 13. On the same day the applicant was brought before the Şırnak public prosecutor. He denied the accusations against him. The statements that he had allegedly made at the gendarmerie command were read to him. The applicant denied that he had made these statements and maintained that he had been forced to sign them. He claimed that he had been threatened with death by two men unless he delivered a bag to some people whose identity was not known to him. 14. After being questioned by the public prosecutor he was brought before the Şırnak Magistrates’ Court (Sulh Ceza Mahkemesi), where he denied the charges against him. He further pleaded not guilty and reiterated his statement that he had made before the Chief Public Prosecutor. The Şırnak Magistrates’ Court ordered the applicant’s detention on remand. The court also took note of the applicant’s allegation that he was threatened with death and decided to refer his complaint to the public prosecutor’s office. 15. On 30 June 1998 the Şırnak public prosecutor issued a decision of non-jurisdiction in respect of the investigation against the applicant holding that the public prosecutor’s office at the Diyarbakır State Security Court had the jurisdiction to conduct this investigation. 16. On 17 August 1998 the Şırnak public prosecutor decided to discontinue the investigation based on Mehmet Özen’s allegation. The public prosecutor found that the applicant had not been abducted as alleged by Mehmet Özen but taken into custody on 15 June 1998 on suspicion of aiding the PKK. 17. On 15 June 1998 the applicant was arrested by officers from the Şırnak provincial gendarmerie command on suspicion of aiding the PKK. Although on 11 June 1998 the applicant’s son lodged a petition with the security directorate and on 13 June 1998 the applicant’s neighbour stated that he had seen the applicant being taken away by seven men, there is no statement indicating that the persons who abducted the applicants had been gendarmerie officers. 18. According to the arrest report signed by four gendarmerie officers, on 15 June 1998, at around 8.30 a.m., following information received by the gendarmerie officers the applicant was captured in a rural area while carrying a bag containing clothes that he was taking to members of the PKK. The applicant was told twice to stop by the officers but he tried to escape. While running, he fell, hit his head and sustained injuries to various parts of his body. 19. On the same day, three officers further drafted a scene of the incident report. According to this report, the applicant was captured at around 4 a.m. following the receipt of information that the applicant was taking supplies to members of the PKK. The officers noted that the applicant had been carrying two bags containing clothes, soap and a carpet and that he had sustained injuries when he fell from a height of 8-10 metres. It is to be noted that neither the arrest report nor the scene of the incident report bears the signature of the applicant. 20. Following his arrest, the applicant was examined by a doctor (see paragraph 10 above) and, subsequently, taken to the Şırnak gendarmerie command where he made statements admitting that he had aided the members of the PKK. The applicant was kept in custody until 24 June 1998. 21. On 9 July 1998 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with aiding and abetting an illegal organisation under Article 169 of the Criminal Code. 22. The first hearing, held before the Diyarbakır State Security Court composed of three judges including a military judge, on 13 July 1998, in the applicant’s absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused. 23. On 21 December 1998 the applicant’s representative stated before the Diyarbakır State Security Court that the applicant was arrested on 11 June 1998. He alleged that the protocols prepared by gendarmerie officers contained false information. He maintained that the medical report of 15 June 1998 established the ill-treatment of the applicant received at the hands of gendarmerie officers. He further complained that the length of the applicant’s detention was excessive. He made an oral complaint against the gendarmerie officers in relation to the ill-treatment of the applicant before the State Security Court and requested the court to notify the public prosecutor’s office concerning their complaint. In reply to the request of the applicant’s representative the State Security Court stated: “It has been decided that the representative of the accused be authorised to lodge a complaint with the public prosecutor’s office where the act took place and that the copy of the hearing minutes be provided if needed.” 24. On the same day, the first-instance court decided to request the Şırnak Assize Court to issue a summons requiring the gendarmerie officers who had signed the arrest and scene of the incident reports to give evidence. 25. At the beginning of the hearing of 8 February 1999, the Diyarbakır State Security Court appointed an interpreter to assist the applicant, noting that he did not have a good command of the Turkish language. 26. On the same day, the applicant made statements before the court with the assistance of the interpreter. He maintained, inter alia, that he was at his farm on the day of his arrest when two persons arrived and asked him to give them money. When he refused their request, they beat him. Subsequently, they tied his hands and covered his mouth and took him to a place, where there were supplies. They then asked him to accept that the supplies belonged to him but he refused. The applicant further denied the accuracy of the arrest and scene of the incident reports. The first-instance court decided to postpone the hearing as the statements of the gendarmerie officers had not been taken. It further ordered the applicant’s release pending trial. 27. On 22 March 1999 the Diyarbakır State Security Court postponed the hearing as the statements of the gendarmerie officers had not been taken. 28. On 10 May 1999 the statements of one of the gendarmerie officers were read out. The applicant’s lawyer maintained before the Court that the contents of these statements and the arrest and scene of the incident reports were contradictory. The court once again postponed the hearing as it had not received the statements of two gendarmerie officers. 29. On an unspecified date, the statements of the two officers were sent to the Diyarbakır State Security Court. 30. On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Diyarbakır State Security Court hearing the applicant’s case was replaced by a civilian judge. 31. At the hearing held on 13 September 1999, the public prosecutor read out his observations on the merits of the case. The hearing was postponed for the preparation of the applicant’s final submissions on the merits of the case. 32. At the hearing held on 27 September 1999 the first-instance court heard the applicant’s lawyer’s final submissions on the merits of the case. On the same day, the court noticed that the applicant’s statements of 8 February 1999 had been taken without the bill of indictment having been read to him. The court therefore requested the Şırnak Assize Court to read out the bill of indictment to the applicant and to take his statements with the assistance of an interpreter. 33. On an unspecified date the applicant made statements before the Şırnak Assize Court with the assistance of an interpreter. These statements were sent to the Diyarbakır State Security Court. 34. At the hearing of 13 December 1999 the public prosecutor and the applicant’s lawyer made their final submissions on the merits of the case. The applicant’s lawyer maintained, inter alia, that the applicant’s arrest and the length of his detention in custody had been unlawful and that he had been subjected to ill-treatment while in custody. 35. On the same day, the Diyarbakır State Security Court convicted the applicant of aiding and abetting the members of the PKK and sentenced him to three years and nine months’ imprisonment. In its judgment, the court relied on the applicant’s confession statements made in the custody of the gendarmerie, the statements of the gendarmerie officers who had drafted the arrest and scene of the incident protocols and the content of the bag that the applicant was allegedly carrying when he was arrested. 36. The military judge sitting on the bench of the Diyarbakır State Security Court was present at one preliminary hearing and six hearings on the merits until June 1999. After the replacement of the military judge with a civilian judge, the first-instance court held four hearings before rendering its judgment in the case. 37. On 20 March 2000 the applicant appealed against the judgment of 13 December 1999. 38. On 18 October 2000 the Court of Cassation dismissed the applicant’s appeal and upheld the judgment of the Diyarbakır State Security Court. 39. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 95-100, ECHR 2004-... (extracts)); Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002); and Öcalan v. Turkey ([GC], no. 46221/99, §§ 5254, ECHR 2005-...).
| 1
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train
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001-114301
|
ENG
|
AUT
|
ADMISSIBILITY
| 2,012
|
ONYEJIEKWE v. AUSTRIA
| 4
|
Inadmissible
|
Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
1. The applicant, Mr Ikechukwu Romanus Onyejiekwe, is a Nigerian national, who was born in 1978 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant requested asylum in Austria on 5 September 2003 under a false name, giving a false date of birth. He claimed that he had fled Nigeria after a violent conflict between two neighbouring villages over land. His mother had been killed in a hospital and he had no family left in Nigeria. 5. On 14 September 2004 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of drug trafficking and attempted drug trafficking, finding that the trafficking had been repeated and large scale in nature, and sentenced him to twenty months’ imprisonment. 6. Thereupon, an exclusion order (Aufenthaltsverbot) was issued against the applicant on 7 October 2004, which became final. 7. On 21 January 2005 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request and ordered his expulsion to Nigeria. The Federal Asylum Office found the applicant’s reasons for having fled Nigeria to be vague, lacking substantiation and thus not credible. 8. The applicant appealed against that decision and notified the Independent Asylum Panel (Unabhängiger Bundesasylsenat) on 31 October 2005 of his real name and date of birth. 9. After having served thirteen months of his prison sentence, the applicant was conditionally released from prison on 28 May 2005. 10. On 2 December 2005 the applicant married an Austrian citizen. 11. On 6 October 2006 the Independent Asylum Panel held a hearing, during which the applicant explained that he had given a false name to the Austrian authorities to protect himself, but that he now wanted to disclose the real reasons for his having fled Nigeria. He continued by stating that he had been a driver for a regional minister who had accused him of having been involved in a plot to kill him in 2003. After the failed assassination attempt, corrupt police officers and soldiers had started to round people up and to arrest them. The applicant himself had gone to a friend’s house and had hidden there for a few days until he had heard that his mother had been shot by the minister’s guards because she would not tell them the applicant’s whereabouts. Thereupon, the applicant had left for Lagos, but it had not been safe there either and he had been shot at. 12. On 19 October 2006 the Independent Asylum Panel dismissed the applicant’s appeal, holding that his story was not credible, as what he had told the Panel was entirely different to what he had told the Federal Asylum Office. Furthermore, his “new” reasons for having fled were again very vague, lacking important details and unconvincing. The Independent Asylum Panel made some observations concerning the general situation in Nigeria and with regard to Decree no. 33, a law penalising “harming the reputation of Nigeria abroad”. It held that while Nigerian citizens who were expelled from another country for having committed a drug-related crime were in principle liable to be punished under Decree no. 33 with a prison sentence, no incident in which an expelled asylum seeker had been arrested at the airport for political motives upon returning to Nigeria had been recorded according to a country information report produced by the German Ministry for Foreign Affairs. With regard to Article 8 of the Convention, the Independent Asylum Panel held that the applicant’s expulsion was justified under the second paragraph of that provision in view of his criminal conviction under the Drug Offences Act. 13. The applicant complained to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), applying for his complaint to have suspensive effect and for legal aid. 14. On 6 December 2006 the Administrative Court granted suspensive effect to the applicant’s complaint. 15. On 16 January 2007 the Constitutional Court refused to grant the applicant legal aid due to the complaint’s lack of prospects of success. 16. Finally, on 9 September 2010 the Administrative Court refused to deal with the applicant’s complaint due to the lack of an important legal issue. That decision was served on the applicant’s counsel on 29 September 2010. 17. The Asylum Act 1997 (Asylgesetz 1997), applicable at the relevant time, governed the conditions under which asylum could be granted to asylum seekers and asylum proceedings. Its Article 8 § 2 provided that after the asylum authority had dismissed an asylum request and had declared expulsion to the asylum seeker’s country of origin permissible, it should combine the dismissal of the request with an expulsion order. 18. Current information on Nigerian Decree no. 33 of 1990 is scarce. The Nigerian National Drug Law Enforcement Agency (“NDLEA”), established by the Decree no. 48 in 1989, points to the National Drug Law Enforcement (Amendment) Decree no. 33 as another measure adopted in dealing with the problem of illegal drugs. As stated on the Agency’s website (www.ndlea.gov.ng), Decree no. 33 prescribes a prison term of five years for persons convicted of trafficking in drugs abroad, and by so doing bringing Nigeria into disrepute. 19. The United Kingdom Border Agency Country of Origin Information Report on Nigeria of 9 July 2010 (“the COI Report”) referred to a BritishDanish fact-finding mission in 2007 and 2008, during which senior officials of the NDLEA were interviewed about the enforcement of Decree no. 33 of 1990. The NDLEA officials had stated that Decree no. 33 had been enforced from 1990 to 2000. Between 1996 and 2000, NDLEA statistical information had shown that 451 Nigerians had been prosecuted and convicted under the provisions of Decree no. 33. The NDLEA officials had further stated that in 2000 the Agency had reviewed the enforcement of Decree no. 33 and had suspended prosecutions under the Decree. This step had been taken in response to public concern that the Agency had prosecuted people who had been convicted of drug offences abroad twice for the same offence. Consequently, since 2001, there had been no prosecutions of returning Nigerians convicted of drug offences abroad under the provisions of Decree no. 33. NDLEA officials had finally explained that immigration officials in Nigeria were normally informed of a deportation before the individual concerned was deported. Once a deportee arrived in Nigeria, NDLEA officers monitored the activities of the individual, but did not take any action to arrest him or her (see page 46 of the COI Report, at paragraphs 13.03 and 13.04).
| 0
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train
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001-103927
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ENG
|
ALB
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CHAMBER
| 2,011
|
CASE OF CAUSH DRIZA v. ALBANIA
| 4
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Violation of Art. 13;Violation of Art. 6-1;Violation of P1-1
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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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6. The applicant was born in 1943 and lives in Fier, Albania. 7. On 20 May 1947 the authorities confiscated the applicant's father's one-storey villa and the appurtenant plot of land measuring 360 sq. m which was situated in the city of Fier. 8. On 6 June 1953 the authorities transferred the confiscated villa and the plot of land to S. 9. Pursuant to the 1993 Property Act, on an unspecified date the applicant and his nine siblings lodged an application with the Fier Commission on Restitution and Compensation of Properties (“the Commission”) seeking the restitution of their father's property. On 27 October 1993 the Commission dismissed their request. 10. The applicant lodged an appeal with the Lushnjë District Court (“the District Court”) claiming that the Commission's decision was unlawful. 11. On 22 February 2000 the District Court recognised the applicant's and his siblings' inherited property rights over the villa and the plot of land. However, the District Court found that, in so far as the plot of land was occupied and in so far as the one-storey villa had been lawfully transferred to S, they were not recoverable by the applicant and his siblings. It awarded them compensation in the amount of 204,902 Albanian leks (“ALL”). 12. The applicant and his siblings appealed arguing that the District Court had wrongly assessed the evidence. 13. On 30 June 2000 the Vlora Court of Appeal (“Court of Appeal”) awarded the applicant and his siblings compensation in-kind for the value of the plot of land as opposed to monetary compensation. The applicant and his siblings appealed. 14. On 18 June 2001 the Supreme Court dismissed the appeal, finding that it did not contain any of the grounds of appeal envisaged by Article 472 of the Code of Civil Procedure. The applicant and his siblings lodged a constitutional appeal with the Constitutional Court. 15. On 10 June 2002 the Constitutional Court, sitting as a bench of three judges, declared the appeal inadmissible. 16. To date, the Court of Appeal decision has not been enforced. 17. The relevant provisions of the Albanian Constitution read: Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “The Constitutional Court shall decide: ... (f) 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.” 18. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007. 19. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows: 20. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015. 21. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices. 22. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007. 23. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification. 24. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation. 25. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act's entry into force, the Government had to approve the list of properties to be allocated to the IkCF. 26. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices. 27. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate's Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure. 28. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision. 29. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015. 30. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF. 31. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties' which had not been the subject of a Commission decision. 32. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices' decisions. 33. According to section 5, the claimant or the State Advocate's Office had the right to appeal against the central Agency's decision within thirty days of its notification to the Tirana District Court. 34. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011. 35. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices. 36. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF. 37. Pursuant to the Property Act, as amended, the Government have adopted a number of by-laws, by way of Council of Ministers' Decisions (“CMDs”) as described below. 38. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions between 2005 and 2009 in respect of the award of financial compensation to former owners. 39. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission's decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency's decision, were eligible to apply for financial compensation. 40. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency's decision that recognised his right to compensation. Only those former owners who had not previously received compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991). 41. Applications were to be examined in chronological order on the basis of the Commission's / regional Agency's decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m. 42. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee. 43. None of those decisions provided for the award of compensation to holders' claims arising out of a final, enforceable court decision. 44. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country. 45. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. 46. The 2006 Property Act provided for the establishment of the IkCF (see paragraph 25 above). The Government have adopted the following CMDs on the procedures for the allocation of properties covered by the IkCF. 47. By decision no. 567 of 5 September 2007 the Government lay down the criteria and the procedures for the determination of State properties covered by the IkCF. Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity. 48. Local and central State institutions are responsible for identifying and drawing up a list of immovable properties in their ownership which could serve as in-kind compensation. The list is submitted to the Agency and its regional offices which are responsible for checking the legal status of each property. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal. 49. By decision no. 868 of 18 June 2008 the Government allocated 17,335 hectares of agricultural land to the IkCF. The Agency is responsible for using it for the compensation of owners in accordance with the criteria prescribed by law. 50. By decision no. 1077 of 18 June 2008 the Government allocated 71,699.3 hectares of forests and pastures to the IkCF. The Agency shall use it for the compensation of owners in accordance with the criteria prescribed by law. 51. By decision no. 1232 of 18 June 2008 the Government allocated twenty-nine objects, mainly warehouses, factories and office buildings, to the IkCF. The Agency is responsible for using it for the compensation of owners in accordance with the criteria prescribed by law. 52. By decision no. 1696 of 24 December 2008 the Government allocated thirty-two objects, mainly warehouses, office buildings and workshops to the IkCF. The Agency is in charge of using it for the compensation of owners in accordance with the criteria prescribed by law. 53. With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows: Article 472 “Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...” Article 480 “An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”
| 1
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train
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001-67167
|
ENG
|
HRV
|
CHAMBER
| 2,004
|
CASE OF CRNOJEVIC v. CROATIA
| 4
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Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
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7. The applicant was born in 1921 and lives in Zagreb. 8. On 6 September 1991 his summer house in Starigrad, Croatia, was blown up by unknown perpetrators. 9. On 7 September 1994 he instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for his damaged property. 10. On 16 November 1995 the Zagreb Municipal Court gave judgment partly allowing the applicant’s claim. 11. On an uncertain date the defendant appealed against the first instance judgment. 12. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 3 September 1997. 13. On 31 July 2003 the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija) entered into force. It provides that proceedings which were stayed pursuant to the Civil Obligations (Amendments) Act 1996 will resume. However, it is uncertain if and when the applicant’s proceedings before the Zagreb Municipal Court have resumed. 14. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows: “Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 15. The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows: “Section 180 of the Civil Obligations Act ... shall be repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.” 16. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 17. The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations.
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train
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001-104662
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ENG
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RUS
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CHAMBER
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CASE OF KERIMOVA AND OTHERS v. RUSSIA
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Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, six month period);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 8;Violation of P1-1;Pecuniary and non-pecuniary damage - award
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Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
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7. The applicants are residents of the town of Urus-Martan in the Chechen Republic. 8. At the material time all the applicants lived at various addresses in Urus-Martan. 9. The first applicant lived with her family in a block of flats at 224 Kalanchakskaya Street. 10. According to the second applicant, she had owned a private house at 15 Dostoyevskiy Street. In support of her submission, the second applicant adduced a certificate from the Urus-Martan Administration (aдминистрация г. Урус-Мартан), dated 2 December 2004, stating that she had lived on real estate measuring 428 square metres at 15 Dostoyevskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the second applicant had any property rights in respect of that estate. 11. According to the third applicant, she had lived with her husband and children in a private house at 25 Mayakovskiy Street. She adduced an extract from a housing inventory (похозяйственная книга) issued by the Urus-Martan Administration on 26 March 2009, stating that she had real estate at 25 Mayakovskiy Street and that the property, measuring 40 square meters, had been built or acquired in 1995. 12. According to the fourth applicant, he had lived with his family in a private house at 24 Mayakovskiy Street. He submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that he had lived on real estate measuring 365 square metres at 24 Mayakovskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the fourth applicant had any property rights in respect of that estate. The fourth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 26 March 2009, stating that he had real estate at 27 Mayakovskiy Street and that the property, measuring 235 square meters, had been built or acquired in 1993. 13. According to the fifth applicant, he had lived with his family in a private house at 19 Dostoyevskiy Street. He submitted a certificate issued by the Urus-Martan Administration on an unspecified date in July 2002, stating that he had lived on real estate measuring 348 square metres at 19 Dostoyevskiy Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the fifth applicant had any property rights in respect of that estate. 14. According to the sixth applicant, he had lived with his family in a private house at 32 Pervomayskaya Street. He submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that he had lived on real estate measuring 310 square metres at 32 Pervomayskaya Street. The certificate indicated that the property had been damaged as a result of the military actions in the Chechen Republic in 1999. It did not specify whether the sixth applicant had any property rights in respect of that estate. The sixth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 27 March 2009, stating that he had real estate at 46 Pervomayskaya Street and that the property, measuring 300 square meters, had been built or acquired in 1978. 15. The seventh to thirteenth applicants are relatives. The seventh applicant is a brother of Mr Vakha Tselstayev and the husband of the eighth applicant. The ninth applicant is Mr Vakha Tseltsayev’s widow, and the tenth and twelfth applicants are their children. The eleventh and thirteenth applicants are Mr Vakha Tseltsayev’s children from a previous marriage. According to them, they all lived at 24 Dostoyevskiy Street. The seventh applicant submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that property measuring 224 square metres at 24 Dostoyevskiy Street had been damaged as a result of the military actions in the Chechen Republic in 1999. The certificate did not specify whether the seventh applicant had any property rights in respect of that real estate. The seventh applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 26 March 2009, stating that he had real estate at 73 Pervomayskaya Street and that this property, measuring 32 square meters, had been built or acquired in 2001. 16. The fourteenth to nineteenth applicants are relatives. The fourteenth and fifteenth applicants are spouses, and the parents of Mr Yakub Israilov and of the sixteenth and seventeenth applicants. The eighteenth applicant is the fourteenth applicant’s nephew, and the nineteenth applicant is the fourteenth applicant’s brother. According to them, they all lived in a private house at 23 Mayakovskiy Street. The fourteenth applicant submitted a certificate from the Urus-Martan Administration, dated 3 July 2002, stating that property measuring 428 square metres at 23 Mayakovskiy Street, had been damaged as a result of the military actions in the Chechen Republic in 1999. The certificate did not specify whether the fourteenth applicant had any property rights in respect of that real estate. The fourteenth applicant also adduced an extract from a housing inventory issued by the Urus-Martan Administration on 27 March 2009, which stated that he had real estate at 23 Mayakovskiy Street and that the property, measuring 60 square meters, had been built or acquired in 1985. 17. In early October 1999 the Russian Government commenced a counter-terrorism operation in the Chechen Republic. 18. On 2 October 1999 the federal military air forces attacked the town of Urus-Martan. One of the bombs hit the block of flats at 224 Kalanchakskaya Street, resulting in its complete destruction and human casualties. In particular, eight residents of the block of flats, including the first applicant’s husband, Mr Adlan Kerimov, and her brother, Mr Lechi Albigov, were killed, and seven residents, including the first applicant and her three minor children were wounded. 19. On 8 October 1999 the first applicant and her three children were issued with a medical certificate confirming that they had sought and obtained medical assistance in connection with their multiple shrapnel wounds. 20. On 19 October 1999 Urus-Martan again came under aerial attack by the federal forces. The bombing resulted in the deaths of six people and injuries to sixteen people, including the tenth, sixteenth and eighteenth applicants, the destruction of thirteen houses and damage to twenty-seven others. 21. Those killed were: (a) Mr Makharbi Lorsanov, born in 1942, the third applicant’s husband; (b) Mr Minkail Lorsanov, born in 1980, the fourth applicant’s son; (c) Ms Aminat Abubakarova, born in 1931, the fifth applicant’s mother; (d) Mr Apti Abubakarov, born in 1974, the sixth applicant’s son; (e) Mr Vakha Tseltsayev, born in 1951, a relative of the seventh to thirteenth applicants (see annex II); (f) Mr Yakub Israilov, born in 1974, a relative of the fourteenth to nineteenth applicants (see annex II). 22. The destroyed and damaged buildings included: (a) the house at 15 Dostoyevskiy Street in which the second applicant lived; (b) the house at 25 Mayakovskiy Street in which the third applicant lived; (c) the house at 24 Mayakovskiy Street in which the fourth applicant lived; (d) the house at 19 Dostoyevskiy Street in which the fifth applicant lived; (e) the house at 32 Pervomayskaya Street in which the sixth applicant lived; (f) the house at 24 Dostoyevskiy Street in which the seventh to thirteenth applicants lived; and (g) the house at 23 Mayakovskiy Street in which the fourteenth to nineteenth applicants lived. 23. On 19 October 1999 the sixteenth and eighteenth applicants were admitted to Urus-Martan hospital in connection with shrapnel wounds sustained during the air strike. They both submitted medical certificates attesting to their injuries. 24. On 21 October 1999 the tenth applicant sought and obtained medical assistance in connection with a shrapnel wound to his right shoulder sustained on 19 October 1999. An entry to that effect was made on the same date in the register of urgent medical assistance at Urus-Martan hospital. 25. On 3 March 2000 a medical death certificate was issued in respect of the fourth applicant’s son. It stated that he had died on 19 October 1999 as a result of multiple shrapnel wounds. On the same date a similar certificate was issued to attest the death on 19 October 1999 of Yakub Israilov, relative of the fourteenth to nineteenth applicants, on account of multiple shrapnel wounds. 26. On 23 March 2001 the Urus-Martan Civil Registration Office issued a death certificate in respect of the sixth applicant’s son, stating that the latter had died in Urus-Martan on 19 October 1999. 27. In the period between 12 and 19 August 2002 the Urus-Martan Civil Registration Office issued death certificates in respect of the third applicant’s husband, the fourth applicant’s son, the fifth applicant’s mother, the seventh to thirteenth applicants’ relative and the fourteenth to nineteenth applicants’ relative. The place and date of their deaths were indicated as Urus-Martan, 19 October 1999. 28. According to the Government, pursuant to Presidential Decree no. 1255c of 23 September 1999, the Russian authorities launched a counter-terrorism operation in the Northern Caucasus for the disarmament and liquidation of illegal armed groups and restoration of constitutional order. The activity of the illegal armed groups was threatening public interests, State security, the territorial integrity of Russia and the lives, rights and freedoms of its citizens in the Chechen Republic and some other areas of the Northern Caucasus. 29. The operation was carried out by the federal armed forces. In late September 1999 the Group “West” was formed under the command of General Major Sh. In the same period the United Air Forces Group was created under the command of General Lieutenant G. In early October 1999 the federal forces commenced the counter-terrorism operation in the Chechen Republic. 30. In the Government’s submission, once the campaign in the Chechen Republic had commenced, the authorities, via the mass-media and leaflets, ordered the illegal fighters to stop their criminal activity and lay down arms and warned the local population of the possible use of aircraft and artillery in case of the organised resistance by the illegal armed groups to the federal forces. In response, the rebel fighters offered fierce armed resistance and organised fortified defence in local settlements, prohibiting the residents from leaving their houses and using them as human shields. 31. According to the Government, in the middle of October the town of Urus-Martan was occupied by Islamic extremists – Wahhabis – amounting to over 1,500 persons. In the Government’s submission, “almost no local residents remained in Urus-Martan as a result of the violence applied to them by the Wahhabis”. The latter based their headquarters in the town and significantly fortified it. In particular, they located their command points in the central part of the town, in school no. 7 and the building of the town administration and kept captives and local residents detained for refusal to collaborate with them in the basements of those buildings. In the Government’s submission, there was a camp of captives and slaves in the town. The illegal fighters also had a number of radio relays and television re-transmitters in the town, and they actively used that equipment for detecting movements of the federal forces. On the outskirts, the rebel fighters located their bases and a centre for subversive training, dug trenches and dugouts, filled pits with oil to be able to explode them on the approach of the federal forces, and organised numerous firing posts in residential buildings. The depth of defence extended to three to four quarters from the outskirts towards the town centre. According to the intelligence data, the extremists were not prepared to surrender and planned violent military actions against the federal troops. 32. In October 1999 the illegal armed groups led active military actions against the federal forces, using surface-to-air missile systems and large-calibre firearms against the federal aircraft. In particular, the extremists attacked the federal aircraft from the roofs of high-rise buildings in Urus-Martan with the result that a number of federal planes and helicopters were shot down and the pilots either killed or captured. Such incidents took place on 1, 3 and 4 October 1999. Also, according to the intelligence data, around 18 October 1999 a new group of approximately 300 fighters arrived at Urus-Martan as reinforcements. 33. In those circumstances, on 18 October 1999 General Major Sh. issued order no. 04, which in paragraph 2 prescribed that the federal aircraft resources be assigned for tactical support to the Group “West” and that the illegal fighters’ bases, ammunition depots and other important targets outside the reach of the federal artillery fire be destroyed by pinpoint aerial strikes. 34. On 19 October 1999, pursuant to that order, two military SU-24 M planes belonging to military unit no. 11731, each laden with eighteen high-explosive fragmentation aerial bombs of calibre 250-270 kg, at 1.30 p.m. and 1.31 p.m. carried out strikes on concentrations of illegal fighters one kilometre to the east of Urus-Martan. This decision was noted down on the tactical map of the United Air Forces Group of the United Group Alignment. 35. At the same time, the planes also carried out bomb strikes on the extremists’ bases in Urus-Martan, including those situated in school no. 7 and the building of the town administration. The planes also bombed rectangle no. 75443 on the eastern outskirts of Urus-Martan where, according to the Government, residential buildings prepared for long-term defence were situated. The residential quarter comprising Dostoyevskiy, Mayakovskiy and Pervomayskaya Streets fell within rectangle no. 75443 and the houses in which the second to nineteenth applicants lived were among the buildings hit by the federal bombers. 36. It does not appear that the first applicant applied personally to law-enforcement agencies in connection with the attack of 2 October 1999. It can be ascertained from the documents submitted that Mr A. Khamzayev, a former resident of Urus-Martan and a lawyer practising in Moscow, complained to various public bodies about this incident on behalf of the first applicant and other victims of the attack of 2 October 1999. He described the circumstances of the strike, listed those killed and wounded and sought to have this incident duly investigated. 37. On 14 April 2001 the Prosecutor’s Office of the Urus-Martan District (прокуратура Урус-Мартановского района – “the district prosecutor’s office”) forwarded Mr Khamzayev’s complaint to the Temporary Office of the Interior of the Urus-Martan District (временный отдел внутренних дел Урус-Мартановского района – “the Urus-Martan VOVD”) for examination. 38. On 18 and 22 June 2001 respectively the Military Prosecutor’s Office of the North Caucasus Military Circuit (военная прокуратура Северо-Кавказского военного округа – “the circuit military prosecutor’s office”) transmitted Mr Khamzayev’s complaint about the attack of 2 October 1999 to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) for examination. The latter was requested to reply to Mr Khamzayev by 10 July 2001. On 4 July 2001 the circuit military prosecutor’s office forwarded a duplicate of Mr Khamzayev’s complaint to the military prosecutor’s office of military unit no. 20102. In a letter of 24 August 2001, similar to those of 22 June and 4 July 2001, the circuit military prosecutor’s office transmitted one more duplicate of Mr Khamzayev’s complaint about the incident of 2 October 1999 to the military prosecutor’s office of military unit no. 20102, requesting it to give a reply by 24 September 2001. 39. In a letter of 25 July 2001 the Prosecutor’s Office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor’s office”) informed Mr Khamzayev that they had examined his complaint concerning an air strike of 2 October 1999 on a house at 224 Kalanchakskaya Street, and that on 23 April 2001 criminal proceedings had been brought under Article 167 § 2 of the Russian Criminal Code (aggravated deliberate destruction of, or damage to, property) in that connection. The letter further stated that the case file had been assigned the number 25268 and that the district prosecutor’s office was carrying out an investigation into the incident. 40. On 25 August 2001 the Urus-Martan VOVD notified Mr Khamzayev that the district prosecutor’s office had opened two criminal cases in connection with an air strike of 2 October 1999 on Kalanchakskaya Street. In particular, on 21 July 2000 criminal case no. 24031 had been opened under Article 105 § 2 of the Russian Criminal Code (aggravated murder), and on 20 October 2000 criminal case no. 24050 had been opened under Article 167 § 2 of the Russian Criminal Code. 41. In a letter of 19 September 2001 the military prosecutor’s office of military unit no. 20102 informed Mr Khamzayev that on 20 October 2000 the district prosecutor’s office had opened criminal case no. 24050 in connection with the air strike of 2 October 1999 on the southern outskirts of Urus-Martan, and that the investigation was currently pending. The letter also stated that there was no evidence of any involvement in the attack of servicemen from the Russian Ministry of Defence or personnel from the interior troops of the Russian Ministry of the Interior. 42. On 11 October 2001 the district prosecutor’s office informed Mr Khamzayev that they had examined his complaints and, in the course of the investigation, would take into account his arguments concerning the actions of the federal servicemen during the attack of 2 October 1999. They also stated that progress reports on the course of the investigation could not be issued for private individuals. 43. On 8 November 2001 the commander of military unit no. 40911 replied to Mr Khamzayev’s complaint of 30 October 2001, stating, inter alia, that the block of flats at 224 Kalanchakskaya Street had not been listed among the targets selected for a strike by the federal air forces, that the latter had not received any orders to carry out such a strike on 2 October 1999, and that there was no available information as to whether there had been transgression by foreign military aircraft into the airspace of the Russian Federation in October 1999. 44. On 19 March 2004 the republican prosecutor’s office replied to Mr Khamzayev’s complaint about the district prosecutor’s office’s failure to act in respect of his requests to institute criminal proceedings in connection with the bomb strike of 2 October 1999. The letter stated, in particular, that on 29 July 2001 the Urus-Martan VOVD had instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code and that at present the investigation in that case was being conducted by the district prosecutor’s office. The letter invited Mr Khamzayev to send his queries concerning the course and results of the investigation to the district prosecutor’s office. 45. In a letter of 25 March 2004, upon Mr Khamzayev’s request, the Urus-Martan Administration furnished him with a notarised copy of eyewitness statements describing the events of 2 October 1999 and certificates confirming the destruction of property at 222 and 224 Kalanchakskaya Street. 46. On 5 April 2004 the first applicant was granted victims status in case no. 25268. 47. On 22 April 2004 the republican prosecutor’s office sent Mr Khamzayev a letter similar to that of 19 March 2004. 48. In a letter of 4 May 2004 the district prosecutor’s office informed Mr Khamzayev that, upon his complaint concerning the bomb strike of 2 October 1999, criminal proceedings in case no. 24031 had been instituted on 21 July 2000 under Articles 105 § 2 and 167 § 2 of the Russian Criminal Code, and that on 19 March 2003 this case had been transferred to the military prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группы войск) for further investigation. 49. In June 2004 Mr Khamzayev died and Ms L. Khamzayeva, his daughter and the applicants’ representative in the proceedings before the Court, replaced him in representing the applicants, and in particular, the first applicant, before the domestic authorities. On an unspecified date she wrote a letter to the military prosecutor’s office of the United Group Alignment enquiring, inter alia, on behalf of the first applicant about the investigation into the attack of 2 October 1999. It is unclear whether any reply followed. 50. According to the Government, the law-enforcement authorities of the Chechen Republic had been notified of the aerial attack of 2 October 1999 firstly on 23 September 2000, when a certain Mr E. filed a written complaint about the damage inflicted on his property during that incident to the district prosecutor’s office. 51. On 20 October 2000 the district prosecutor’s office, upon Mr E.’s complaint, instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code (aggravated deliberate destruction of, or damage to property) in connection with the infliction of damage on Mr E.’s housing and property as a result of a bomb strike on 2 October 1999 by “an unidentified plane”. The case file was given the number 24050. 52. On 20 December 2000 the district prosecutor’s office suspended the investigation in case no. 24050 for failure to establish those responsible. This decision was never challenged or quashed. 53. It appears that on 22 April 2001 a certain Mr K., apparently the first applicant’s relative, complained to the Urus-Martan VOVD about the destruction of his property and the deaths and injuries inflicted on several people as a result of the bomb strike of 2 October 1999. Upon this complaint, on 23 April 2001 the Urus-Martan VOVD instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code. The case file was assigned the number 25268. 54. In the Government’s submission, the preliminary investigation in case no. 25268 had been suspended and resumed on several occasions. On the latest occasion it was stayed on 1 September 2004 owing to a failure to establish those responsible. On 28 November 2008 this decision was set aside by a supervising prosecutor and the investigation in the said case was currently pending. 55. It does not appear that any of the applicants personally sought an investigation into the events of 19 October 1999. It can be ascertained from the adduced documents that it was Mr Khamzayev who, on the applicants’ behalf, actively applied to various public bodies, describing in detail the consequences of the attack. 56. In the period between April 2000 and November 2001 Mr Khamzayev received a number of similar letters from the commander of the Troops of the North Caucasus Military Circuit (командующий войсками Северо-Кавказского военного округа), the Main Headquarters of the Russian Air Forces (Главный штаб Военно-воздушных сил), the acting commander-in-chief of the Air Forces (временно исполняющий обязанности Главнокомандующего Военно-воздушными силами) and the commander of military unit no. 40911. All of them denied any involvement of their personnel in the alleged attack of 19 October 1999 on Urus-Martan, stating that the federal aircraft had not conducted any flights in the vicinity of Urus-Martan or carried out any bomb-missile strikes in October 1999 or later, and that there was no available information as to whether there had been transgression by foreign military aircraft into the airspace of the Russian Federation in October 1999. According to the letters, air strikes were aimed only at targets which had been pre-selected and identified as military and were situated at a distance of at least two or three kilometres from inhabited areas, and that the accuracy of military aircraft excluded any possibility of accidental striking of civilian targets. As regards Mr Khamzayev’s complaints about unexploded bombs found by the residents, he was invited to apply to “a competent body of the Ministry of the Interior” in the vicinity of his domicile. 57. A letter of an acting head of the Headquarters of military unit no. 40911 dated 15 February 2001 stated, in particular, that the aircraft of the Fourth Army of the Air Force and Counter Missile Defence (Четвертая Армия Военно-воздушных сил и противоракетной обороны) had not attacked Urus-Martan or launched an air strike on the residential quarter in question, since they had not possessed any information regarding any military objects in the said area which would warrant such a strike. The letter also stated that the information allegedly received by the first applicant from the military prosecutor’s office, to the effect that on 19 October 1999 two SU-25 military aeroplanes had launched an air strike on Urus-Martan, was inaccurate. 58. On 18 December 2001 the Office of the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit (Аппарат Полномочного представителя Президента РФ в Южном федеральном округе) informed Mr Khamzayev that there had been no military actions in Urus-Martan in October 1999, that illegal armed formations had no military aircraft or bombs and missiles in their arsenal and that in October 1999 no transgression of foreign military aircraft into the airspace of the Russian Federation had been detected. 59. In a letter of 14 November 2002 the commander-in-chief of the Air Forces also informed Mr Khamzayev that, according to a register of combat air missions (журнал учетa боевых вылетов) and tactical map (карта ведения боевых действий), on 19 October 1999 aircraft of the Russian Air Forces had not carried out any bomb strikes at a distance of one kilometre from the south-eastern outskirts of Urus-Martan. 60. It appears that on 7 April 2000 the military prosecutor’s office of military unit no. 20102 decided to dispense with criminal proceedings in connection with the events of 19 October 1999, stating that there was no evidence of involvement of the federal military in the imputed offence, and that the alleged casualties and damage could have been inflicted by fighters of illegal armed formations. 61. On 21 July 2000 the republican prosecutor’s office instituted criminal proceedings in connection with the aerial attack of 19 October 1999 on Urus-Martan, the killing of residents and the destruction of property, under Articles 105 § 2 (a) and (e) (killing of two or more persons committed in a socially dangerous manner) and 167 § 2 of the Russian Criminal Code. The case file was assigned the number 24031 and sent to the district prosecutor’s office for investigation. 62. Between 21 July 2000 and 7 March 2001 the criminal proceedings were suspended and resumed on three occasions (see paragraphs 104-106 below). 63. On 29 April 2001 the district prosecutor’s office referred the file in case no. 24031 to the military prosecutor of military unit no. 20102 for further investigation (see paragraph 108 below). The latter sent the case file to the republican prosecutor’s office on 11 May 2001 (see paragraph 109 below). 64. On 24 May 2001, in the context of civil proceedings for compensation instituted before the Basmannyy District Court of Moscow by Mr Khamzayev in respect of his destroyed house, the district prosecutor’s office furnished the court with a report on the results of the investigation in criminal case no. 24031. The document stated that on 19 October 1999 an unidentified aircraft had carried out a strike on Urus-Martan, with the result that six residents had died, sixteen had been wounded, thirteen private houses had been destroyed, and twenty-seven houses had been damaged. The republican prosecutor’s office had instituted criminal proceedings in this connection on 21 July 2000, in case no. 24031. The events of 19 October 1999 were confirmed by forty-eight witnesses, listed in the report, and by other witnesses, a report on the inspection of the scene of the incident and another on the forensic examination, as well as by other evidence, such as fragments of exploded aerial bombs seized from the territory of Mr Khamzayev’s household and a video-recording of the site of the incident, dated 10 November 1999. Finally, the report stated that, given that the illegal armed formations had no aircraft, the criminal case had been sent on three occasions for further investigation to the military prosecutor’s office, which had returned it on various grounds; this had protracted the investigation and made it difficult to identify the pilots involved in the attack of 19 October 1999. 65. On 6 June 2001 the investigation was resumed and then stayed on 6 July 2001 (see paragraphs 110-111 below). 66. By a decision of 18 March 2002 the circuit military prosecutor’s office refused Mr Khamzayev’s request to have criminal proceedings instituted against senior officers from the General Headquarters of the Russian Armed Forces and the Main Headquarters of the Russian Air Forces, who had allegedly provided him with false information concerning the attack of 19 October 1999. The decision referred to statements by a number of officers, who had claimed that Mr Khamzayev’s allegations concerning the bombing of Urus-Martan had been thoroughly investigated on several occasions and had proved to be unsubstantiated. In particular, one of the officers stated that he had personally examined the register of combat air missions and tactical map for the relevant period and ascertained that there had been no air strikes on the town of Urus-Martan on 19 October 1999. However, at 1.30 p.m. on that date high-explosive aerial bombs of calibre 250 kg had been launched against a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan. The decision concluded that since it had been established that the officers had provided Mr Khamzayev with full and true information, there were no constituent elements of a crime in their actions. 67. On the same date the circuit military prosecutor’s office quashed the decision taken by the military prosecutor of military unit no. 20102 on 7 April 2000. The circuit military prosecutor’s office stated, in particular, that the decision of 7 April 2000 had been based on explanations by the Head of the Headquarters of the Group “West”, Colonel K., and an extract from the register of combat air missions, indicating coordinates which had been attacked by a pair of SU-25 planes on 19 October 1999 and which had been situated at a distance of twenty-seven kilometres from Urus-Martan. The decision of 18 March 2002 went on to say that an inquiry carried out in connection with Mr Khamzayev’s complaint against senior high-ranking officers from the General Headquarters of the Russian Armed Forces and the Main Headquarters of the Russian Air Forces had established that no air strikes on the town of Urus-Martan had been planned or carried out on 19 October 1999, and that the closest area attacked by a pair of federal planes on that date had been located one kilometre from Urus-Martan, in an area where members of illegal armed formations had been stationed. The decision concluded that in view of discrepancies in the information obtained, the inquiry could not be said to have been complete, and that therefore the decision of 7 April 2000 should be set aside. 68. On 25 August 2002 the district prosecutor’s office resumed the proceedings in case no. 24031. Thereafter in the period between 25 September 2002 and 18 April 2003 the investigation was stayed and resumed eight times (see paragraphs 113, 115-122 below). 69. On 17 November 2003 the investigation into the attack of 19 October 2003 had been terminated with reference to the absence of constituent elements of a crime in the actions of high-ranking military officers (see paragraph 125 below). 70. It appears that Mr Khamzayev then unsuccessfully applied to prosecutors at various levels in an attempt to obtain a copy of the decision of 17 November 2003. 71. In a letter of 15 March 2004 the military prosecutor’s office of the United Group Alignment informed Mr Khamzayev that the criminal proceedings in connection with the bomb strike of 19 October 1999 had been discontinued on 17 November 2003 and that a letter informing him of that decision had been sent to him on the same date. 72. On 26 March 2004 the military prosecutor’s office of the United Group Alignment further wrote to Mr Khamzayev that the decision to discontinue the criminal proceedings in connection with the attack of 19 October 1999 had been lawful and well-founded, as it had been established during the investigation that the federal aircraft had bombed fortified command points, bases and ammunition depots of the illegal armed groups rather than any residential areas of Urus-Martan. 73. On 10 May 2004 Mr Khamzayev complained to the Supreme Court of the Chechen Republic about the refusal of the military prosecutor’s office of the United Group Alignment to furnish him with a copy of the decision of 17 November 2003, which prevented him from appealing against that decision in court. It is unclear whether this complaint was examined. 74. On 7 June 2004 the Main Military Prosecutor’s Office (Главная военная прокуратура) transmitted Mr Khamzayev’s complaints about the prosecutors to the military prosecutor of the United Group Alignment for examination. 75. On 12 July 2004 the military prosecutor of the United Group Alignment informed Mr Khamzayev that the case file of the investigation opened into the attack of 19 October 1999 on Urus-Martan had been classified as secret, and that it was therefore impossible to provide him with any materials from the file. It also followed from the letter that the criminal proceedings had been discontinued, that Mr Khamzayev was entitled to institute civil proceedings, and that the case file could be submitted to a court upon the latter’s order. 76. In two letters of 31 July 2004 the military prosecutor’s office of the United Group Alignment informed Mr Khamzayev, in reply to his complaints of 26 April and 26 May 2004, that criminal proceedings instituted in connection with the aerial attack on Urus-Martan on 19 October 1999 had been discontinued on 17 November 2003 in the absence of the constituent elements of a crime in the attack, and that the criminal case file was classified as secret. 77. On 2 August 2004 the military prosecutor’s office of the United Group Alignment replied to Mr Khamzayev’s complaint of 26 May 2004, stating that the preliminary investigation in case no. 34/00/0008-03 had established that in October 1999 the town of Urus-Martan had been occupied by Islamic extremists, amounting to over 1,500 persons, who had based their headquarters in the town, had fortified it and had not been prepared to surrender, and that in such circumstances the federal command had taken a decision to carry out pinpoint bomb strikes against the bases of illegal fighters in Urus-Martan. 78. In a letter of 10 August 2004 the military prosecutor’s office of the United Group Alignment confirmed, in reply to Mr Khamzayev’s complaint of 20 April 2004, that the criminal proceedings concerning the attack of 19 October 1999 on Urus-Martan had been terminated. The letter also stated that the case-file materials had been classified as secret. 79. On an unspecified date Ms L. Khamzayeva, who replaced Mr Khamzayev in representing the applicants before the domestic authorities, wrote a letter to the military prosecutor of the United Group Alignment (военный прокурор Объединенной группы войск) inquiring, inter alia, on behalf of the second, third, fourth, fifth, sixth, ninth and fifteenth applicants about the investigation into the attack of 19 October 1999. It is unclear whether any reply followed. 80. At various times the district prosecutor’s office granted victim status in case no. 24031 to some of the applicants. In particular, the second applicant was declared a victim on 20 August 2002 and a civil claimant on 21 January 2003, the third applicant was declared a victim on 8 September 2000 and on 29 October 2002 she was declared a civil claimant in the criminal proceedings, the fourth applicant was declared a victim on 14 September 2000, the fifth applicant was declared a victim and a civil claimant on 7 September 2000 and 17 September 2002 respectively, the sixth applicant was declared a victim and a civil claimant on 8 September 2000 and 18 September 2002 respectively, the seventh applicant was declared a victim and a civil claimant on 16 September 2000 and 17 September 2002 respectively, the ninth applicant was declared a victim on 7 September 2000, the tenth applicant was granted the victim status on 11 September 2000, the fourteenth applicant was declared a victim and a civil claimant on 8 September 2000 and 17 September 2002 respectively, the sixteenth applicant was granted the victims status on 19 September 2000, the eighteenth applicant was declared a victim on 13 September 2000 and the nineteenth applicant was granted victim status on 14 September 2000. 81. By a decision of 28 October 2002 the district prosecutor’s office refused Mr Khamzayev’s requests that victim status be granted to the tenth, eleventh, twelfth and thirteenth applicants, stating that under the relevant legal provisions, such status could be granted only to one of the relatives of a deceased person, and that earlier, namely on 7 September 2000, the ninth applicant had already been declared a victim in connection with the death of Mr Vakha Tseltsayev. 82. None of the applicants who lived in the houses that were destroyed or damaged during the attack of 19 October 1999 brought civil proceedings for compensation. In their submission, this remedy was ineffective, as on 11 May and 4 October 2001 respectively the domestic courts at two levels of jurisdiction had dismissed as unfounded Mr Khamzayev’s claim for compensation for his private house, which was destroyed in that attack (see Khamzayev and Others v. Russia (dec.), no. 1503/02, 25 March 2010). 83. In December 2006, following a communication to them of an application in the case of Khamzayev and Others (no. 1503/02) which concerned the federal aerial attack of 19 October 1999 on Urus-Martan, the Government produced a copy of the investigation file in case no. 34/00/0008-03 (initially no. 24031) concerning those events. The materials ran to approximately 1,200 pages and seemed to be a copy of the major part of the case file, if not the entire file. 84. In May 2007, when the present application was communicated to them, the Government were invited to produce copies of the investigation files in the criminal cases opened in connection with the aerial attack of 2 October 1999 on Urus-Martan. In reply, the Government submitted documents running to 28 pages from the investigation file in case no. 24050, materials running to 31 pages from the investigation file in case no. 25268 and documents running to 528 pages in case no. 34/00/0008-03 representing part of the materials submitted in the case of Khamzayev and Others. They refused to produce the entire files, stating that it would be inappropriate to do so, given that under Article 161 of the Russian Code of Criminal Procedure, disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. The Government also submitted that they had taken into account the possibility of requesting confidentiality, but noted that the Court provided no guarantees that once in receipt of the investigation files the applicants or their representative would not disclose the materials in question to the public. According to the Government, in the absence of any possible sanctions for the applicants in the event of their disclosure of confidential information and materials, there were no guarantees as to their compliance with the Convention and the Rules of Court. In the Government’s submission, given the large number of applications concerning the events in the Chechen Republic during the counter-terrorism operation, the disclosure of the documents from criminal investigation files would be highly detrimental to the interests of the State and the participants in the criminal proceedings. 85. The materials produced, in so far as relevant, may be summarised as follows. 86. By a decision 20 October 2000 the district prosecutor’s office instituted criminal proceedings upon a complaint of Mr E. about the destruction of his property as a result of a bomb strike on Urus-Martan on 2 October 1999. The proceedings were brought under Article 167 § 2 (aggravated deliberate destruction of, or damage to property) of the Russian Criminal Code. 87. It is clear from the materials submitted that it was only the destruction of Mr E.’s house and property that was being investigated in the context of those proceedings. 88. In a report of 18 June 2001 an expert confirmed that metal fragments found at the scene of the incident at Mr E.’s destroyed house were pieces of an aerial bomb that had exploded. 89. By a decision of 23 April 2001 the Urus-Martan VOVD instituted criminal proceedings under Article 167 § 2 of the Russian Criminal Code upon a complaint of Mr K. about a federal aerial bomb strike on Urus-Martan on 2 October 1999 resulting in the destruction of two properties and inflicting of deaths on eight persons and injuries on seven persons. 90. By a decision of 8 May 2001 the Urus-Martan VOVD ordered the transfer of case no. 25268 to a military prosecutor’s office for further investigation. The decision reiterated that on 2 October 1999, during a bomb attack by the federal air forces, two houses belonging to Mr Kh. Kerimov and Mr A. Kerimov had been destroyed, eight persons had died and seven had been wounded. 91. In a decision of 19 May 2001 the republican prosecutor’s office set aside the decision of 8 May 2001, stating that it was premature since the materials of the file contained no conclusive evidence of the federal armed forces’ involvement in the incident of 2 October 1999. The decision ordered that the case file be transferred to the district prosecutor’s office for investigation. 92. A report of 5 June 2001 reflected the results of an inspection of the scene of the incident at 224 and 226 Kalanchakskaya Street. A brief report attested that the houses were partly destroyed and stated that no photographs had been taken, or any objects found or seized during the inspection. 93. A decision of 23 June 2001 ordered that the criminal proceedings in case no. 25268 be suspended. The decision reiterated that on 2 October 1999, during a bomb attack by the federal air forces, two houses belonging to Mr Kh. Kerimov and Mr A. Kerimov had been destroyed, eight persons had died and seven had been wounded. It then stated that the term of preliminary investigation had expired and that all possible investigative actions had been performed. 94. In a decision of 29 July 2001 a supervising prosecutor ordered the resumption of the investigation. The decision required the investigating authorities to establish and question the victims of the attack, to find and seize fragments of bombs, and to order and carry out expert examinations. 95. A report of 7 August 2001 reflected the results of another inspection of the scene of the incident. It appears that during that inspection metal fragments – supposedly those of an explosive device – were found and seized. 96. By a decision of 15 August 2001 the district prosecutor’s office ordered an expert examination of the metal fragments found on 7 August 2001 at the scene of the incident with a view to establishing whether they were pieces of an aerial bomb. It is unclear whether this expert examination was carried out and, if so, what its results were, in the absence of any documents to that effect. 97. It appears that at some point the criminal proceedings were discontinued and then resumed, as by a decision of 1 April 2004 an investigator of the district prosecutor’s office took up the case. 98. A decision of 5 April 2004 granted victim status to the first applicant in connection with the death of her husband, Adlan Kerimov, and injuries sustained by her and her children as a result of the bomb attack by the federal air forces on Urus-Martan on 2 October 1999. The first applicant was interviewed by the investigating authorities on the same date. 99. No documents concerning the period after April 2004 have been submitted to the Court. 100. By a decision of 21 July 2000 the republican prosecutor’s office instituted criminal proceedings in connection with Mr Khamzayev’s complaint concerning a bomb strike on a residential quarter of Urus-Martan on 19 October 1999, resulting in six persons killed, sixteen wounded, thirteen houses destroyed and twenty-seven damaged. The proceedings were brought under Articles 105 § 2 (aggravated murder) and 167 § 2 (aggravated deliberate destruction of, or damage to property) of the Russian Criminal Code, and the case was transferred to the district prosecutor’s office for investigation. The case file was given the number 24031. A letter of the same date informed Mr Khamzayev of the aforementioned decision, without indicating its date. 101. In a letter of 31 August 2000 the republican prosecutor’s office drew the attention of the district prosecutor’s office to “unprecedented procrastination” of the investigation in case no. 24031. The letter stated, in particular, that for a period of a month the investigator in charge had not performed any investigative action, and had not questioned victims or witnesses. It instructed the district prosecutor’s office to revive iew all the victims of the bomb strike in question, to grant them victim status and declare them civil claimants; to question the relatives of those deceased and to grant them victim status; to inspect the scene of the incident using photograph and video devices, and to establish and interview eyewitnesses of the events in question. 102. On an unspecified date in October 2000 the investigator in charge sought the competent prosecutor’s authorisation for extension of the term of the preliminary investigation. The relevant decision listed the findings made by the investigation up to that time. It referred, in particular, to statements of a number of residents of the quarter that had come under attack on 19 October 1999 who, being eyewitnesses to the incident, insisted that the military planes had been flying at a low altitude and that the pilots could therefore have clearly seen that they were targeting a residential quarter. The decision further referred to the residents’ statements to the effect that no illegal fighters had ever lived in their quarter and that property occupied by the rebel fighters had been located on the outskirts of Urus-Martan and by that time had already been hit by federal bombers, and that therefore there had been no reason to bomb a residential quarter inhabited by civilians. The decision went on to note that during the inspection of the scene of the incident large metal fragments of aerial bombs had been found and that, in addition, unexploded bombs were still lying in the courtyards of a number of properties. The decision stated that the evidence obtained proved the involvement of the federal air forces in the attack of 19 October 1999, this finding being confirmed by eyewitness statements, photographs and video-recordings, evaluation reports attesting to the inflicted damage and a report on the inspection of the scene of the incident. 103. In a letter of October 2000 (the exact date is illegible), the military prosecutor’s office of military unit no. 20102 returned the case file to the republican prosecutor’s office stating that a number of formal requirements had not been complied with. The latter referred the case file to the district prosecutor’s office on 30 October 2000 ordering it to remedy the defects. 104. A decision of 21 January 2001 by the district prosecutor’s office ordered the suspension of the criminal proceedings. It stated that all possible investigative measures had been performed but it had not been possible to establish who was responsible. 105. In a decision of 7 February 2001 a supervising prosecutor set aside the decision of 21 January 2001 as unfounded and premature. It ordered that the investigation be resumed, that eyewitnesses to the attack be questioned and that the results of medical forensic examinations and ballistic tests be included in the case file. 106. In a decision of 7 March 2001 the district prosecutor’s office ordered a suspension of the criminal proceedings in case no. 24031, stating that all investigative measures indicated in the supervising prosecutor’s decision of 7 February 2001 had been carried out, but it had not been possible to establish who was responsible. 107. In a letter of 14 April 2001 the district prosecutor’s office replied to Mr Khamzayev that his request for certified copies of the decisions instituting criminal proceedings in case no. 24031 and extending the term of preliminary investigation “had no basis in law” and therefore could not be granted. The letter also indicated that the term of the preliminary investigation into the said criminal case had been extended until 21 January 2001 and that on 10 October 2000 it had been sent to a military prosecutor’s office, which had returned it on 26 October 2000 because of procedural defects. The letter went on to say that ballistic tests had been ordered in the case on 16 November 2000; however, those tests had not yet been carried out. It then noted that on 21 January 2001 the investigation had been suspended, then resumed on 7 February 2001 and again stayed on 7 March 2001. The letter also assured Mr Khamzayev that his requests in the present case would be included in the case file and taken into consideration during further investigation. 108. In a decision of 29 April 2001 the district prosecutor’s office ordered that the case file be transferred to the military prosecutor’s office of military unit no. 20102 for further investigation. The decision stated that it had been established that the destruction of houses and other property and the deaths and injuries of residents of Urus-Martan on 19 October 1999 had been due to an aerial strike by aircraft of the federal armed forces. This fact had been confirmed by witnesses and victims and by the inspection of the site of the incident, where fragments of aerial bombs and missiles had been found. The involvement of federal military personnel in that attack was obvious, since the illegal armed formations had no aircraft, and the case file therefore had to be transferred to the military prosecutor for further investigation, in order to identify the military unit and military personnel who had committed the offence in question. 109. In a letter of 11 May 2001 the military prosecutor’s office of military unit no. 20102 transmitted the case file to the republican prosecutor’s office. The letter stated that the district prosecutor’s office’s conclusion that on 19 October 1999 Urus-Martan had come under a bomb strike was based on contradictory witness statements and had no objective confirmation. The letter pointed out, in particular, that whilst some of the witnesses had stated that they had seen planes that had allegedly carried out the strike, some other witnesses had indicated that they had not been able to see planes as on the day in question it had been cloudy and misty. Moreover, according to the letter, there were also discrepancies in witness statements concerning the overall number of planes that had allegedly participated in the attack and their colour. The letter went on to note that the origin of the ammunition fragments seized from two of the properties that had allegedly come under the attack on 19 October 1999 (see paragraph 133 below) had not been established and it had not been ascertained how it was possible for those fragments still to be found a year after the attack. At the end, the letter stated that at the same time the command of the United Groups Alignment and the Russian Ministry of Defence had reported that on 19 October 1999 the federal aircraft had not carried out any strikes on Urus-Martan. 110. By a decision of 6 June 2001 the district prosecutor’s office resumed the investigation. 111. A decision of 6 July 2001 ordered that criminal proceedings be suspended owing to the failure to establish the alleged perpetrators and that the case file be transferred to the military prosecutor’s office. The decision was similar to that of 29 April 2001. It stated, in particular, that the involvement of the federal aircraft in the attack had been established by eyewitness statements and results of ballistics tests, which had confirmed that fragments found on the scene of the incident had been those of artillery shells and aerial bombs. It also stated that an unexploded aerial bomb had remained on the ground near the house at 15 Dostoyevskiy Street since the attack of 19 October 1999. 112. In a letter of 15 May 2002 the republican prosecutor’s office returned case no. 24031 to the district prosecutor’s office for investigation. The letter stated that upon the study of the case-file materials it had been established that the investigation had been carried out with flagrant violations of the procedural law, with the result that the military prosecutor’s office had refused to take over the case. The letter then listed in detail the procedural breaches during the inspection of the scene of the incident and the seizure and examination of ammunition fragments found there and stated that as a result of those breaches the seized splinters could not be admitted in evidence. The letter further noted that to date no medical forensic examinations had been conducted in respect of those deceased and wounded in the attack of 19 October 1999, that those who had suffered pecuniary damage had not been declared civil claimants and that contradictions in eyewitness statements had not yet been resolved. The letter also stated that although the case had repeatedly been returned to the district prosecutor’s office because of all those shortcomings, they had not been remedied. 113. By a decision of 25 August 2002 the district prosecutor’s office resumed the criminal proceedings. 114. In a letter of 25 August 2002 the district prosecutor’s office forwarded to Mr Khamzayev certified copies of decisions granting victim status to the second, fourth to seventh and fourteenth applicants and a certified copy of a decision declaring the second applicant a civil claimant. The letter also informed Mr Khamzayev that none of the remaining applicants had ever sought to be declared civil claimants in that case. 115. A decision of 25 September 2002 ordered that the investigation be stayed. The decision stated briefly that all possible investigative measures had been taken but that it had not been possible to establish the alleged perpetrators. 116. By a decision of 1 October 2002 the district prosecutor’s office resumed the investigation. The decision stated that, as requested by Mr Khamzayev, it was necessary to question as witnesses a number of high-ranking military officers who had participated in the counter-terrorism operation in the Chechen Republic. 117. A decision of 1 November 2002 ordered the suspension of the criminal proceedings. It stated that after the reopening of the investigation on 1 October 2002, the investigating authorities had sent a request to interview a number of high-ranking officers, carried out an expert’s examination of an orchard that one of the residents had lost during the attack in question and declared two other persons victims. Therefore, according to the decision, all possible investigative actions had been taken. 118. A decision of 10 January 2003 set aside the decision of 1 November 2002 as unfounded, stating that the instructions of the republican prosecutor’s office to remedy the procedural breaches had not been complied with. In particular, there had been breaches of procedural law in the seizure of ammunition fragments, which were therefore inadmissible evidence. Moreover, medical forensic examinations of those deceased and wounded had not been conducted and a number of persons who had suffered losses as a result of the incident had not been declared civil claimants in the case. Also, the contradictions in eyewitnesses’ descriptions of the attack had not been resolved. The decision thus ordered that the proceedings be resumed. 119. A decision of 10 February 2003 ordered the suspension of the criminal proceedings. It listed investigative measures taken in January 2003, including the seizure of splinters, ordering their expert examination, granted the status of civil claimant to the victims and concluded that all the investigative actions that had been possible in the absence of those responsible had been carried out. 120. A decision of 15 February 2003 ordered that the investigation be resumed. The decision indicated that a number of investigative actions should be carried out in the case, and namely medical forensic examination of the deceased and wounded. In a letter of February 2003 (the exact date is unclear), Mr Khamzayev was informed of the recent developments in the case. 121. By a decision of 15 March 2003 the criminal proceedings in case no. 24031 were adjourned owing to the failure to establish the alleged perpetrators. 122. By a decision of 18 April 2003 a prosecutor of the military prosecutor’s office of the United Group Alignment ordered that the investigation be resumed. It can be ascertained that at this stage the case was assigned the number 34/00/0008-03. 123. On the same date the military prosecutor’s office of the United Group Alignment informed the district prosecutor’s office of this decision and invited it to notify those declared victims of the reopening of the case. In another letter of the same date the military prosecutor’s office of the United Group Alignment apprised Mr Khamzayev of its decision to resume the investigation. 124. In a decision of 18 April 2003 the investigator in charge sought the authorisation of a competent prosecutor to extend the term of preliminary investigation until 18 August 2003. The decision stated that a large number of investigative actions should be taken. In particular, it was necessary to question high-ranking officers in command of the counter-terrorism operation in the Chechen Republic; to identify and interview an officer in charge of the operation in Urus-Martan on 19 October 1999, an officer in command of the pilots who had carried out bomb strikes on Urus-Martan on the date in question and the pilots themselves; to examine and, if necessary, seize relevant military documents, including a register of combat air missions and tactical maps; to examine the materials of inquiries carried out by the military authorities in connection with Mr Khamzayev’s complaints about the attack; to conduct expert examinations, including a medical forensic examination of those deceased and wounded in the incident under investigation, and to perform other necessary investigative actions. 125. A decision of 17 November 2003 terminated the criminal proceedings in case no. 34/00/0008-03. It provided a description of the situation in the Chechen Republic and, more specifically, in the vicinity of Urus-Martan in late September – October 1999 and an account of the aerial attack of 19 October 1999 identical to those submitted by the Government (see paragraphs 28-35 above). 126. The decision referred, in particular, to witness interviews of Mr Af. and Mr Chay., intelligence officers, who had carried out reconnaissance in Urus-Martan in the relevant period. They both stated that the town had been occupied by the Wahhabis, who had significantly fortified it and prepared for long-term defence. According to them, the depth of defence extended to three to four quarters from the outskirts towards the town centre; the fighters had dug trenches and dugouts, filled pits with oil to be able to explode them on the approach of the federal forces, and organised numerous firing posts in residential buildings. Mr Af. also stated that the majority of the local residents had left the town, and that an insignificant number of residents remaining in Urus-Martan had been forcibly kept by the extremists who had used them as human shields. The decision also referred to statements of Mr Kh., a resident of Urus-Martan, who pointed out, in particular, that at the material time more than half of the civilian residents had left the town because of persecutions by illegal fighters, who had detained, robbed, killed and used as human shields those residents who had shown resistance to them. 127. The decision also quoted the conclusions of the operative and tactical expert examination (see paragraph 159 below) to the effect that the decision to carry out the aerial strike in question had been well-founded and timely and that the relevant military authorities had taken measures to minimise casualties among civilian residents of Urus-Martan. It then concluded that there had been no elements of criminal offences punishable under Articles 105 § 2 and 167 § 2 of the Russian Criminal Code in the actions of General Major Sh. and General Lieutenant G. and that therefore the criminal proceedings against them should be discontinued. 128. In a request of 29 July 2000 the district prosecutor’s office instructed the Urus-Martan VOVD to establish and interview the victims of the attack of 19 October 1999, relatives of those deceased; to grant them victim status and the status of civil claimant in the case; to inspect carefully the scene of the incident; to take photographs and to make a video-recording of the site, and, if possible, to seize exhibits, including fragments of bombs, to carry out ballistic tests and to perform other necessary investigative actions. 129. In a letter of the same date the district prosecutor’s office requested the military prosecutor’s office of military unit no. 20102 to send them material of an inquiry into Mr Khamzayev’s complaint concerning the attack of 19 October 1999. 130. In letters of 24 August 2000 the district prosecutor’s office reminded the Urus-Martan VOVD and the military prosecutor’s office of military unit no. 20102 of its requests of 29 July 2000, stating that to date they had not been complied with. 131. Decisions taken in the period between 7 and 19 September 2000 granted victim status to the third to seventh, ninth, tenth, fourteenth, sixteenth, eighteenth and nineteenth applicants (see paragraph 80 above). As can be ascertained from the decisions, the said applicants were apprised of them on the same dates. 132. Reports of 3 and 5 October 2000 on the inspection of the scene of the incident described in detail the state of a number of properties that had come under the aerial attack of 19 October 1999. In particular, the reports attested to the damage inflicted on the properties and possessions inside them. They also described bomb craters on the plots of land where the properties were situated and indicated that during the inspection metal shrapnel resembling fragments of an artillery shell had been found and seized. Among the damaged properties, the reports mentioned the second applicant’s property at 15 Dostoyevskiy Street, the seventh applicant’s property at 24 Dostoyevskiy Street and the fourteenth applicant’s property at 23 Mayakovskiy Street. The reports referred to the aforementioned applicants as the owners of the properties. Photographs taken during the inspection of the scene of the incident were enclosed with the reports. They represented a number of damaged properties, including those of the fifth, sixth, seventh and fourteenth applicants. 133. By two similar decisions of 5 October 2000 the investigator in charge ordered the seizure of metal fragments resembling pieces of an aerial bomb or an artillery shell from two of the properties that had come under the attack of 19 October 1999. 134. A decision of 16 November 2000 ordered an expert examination of metal fragments found at the scene of the incident with a view to establishing their origin. It does not appear that any expert examination was carried out pursuant to that decision, as on 6 June 2001 the investigator in charge ordered another expert examination of those fragments. An expert report of 25 June 2001 confirmed that the fragments in question were pieces of artillery shells, aerial bombs and ammunition, the origin of which it had not been possible to establish. 135. Reports of 9 February 2001 attested respectively to the seizure and examination of a videotape, with a record of the results of the attack of 19 October 1999. 136. In a decision of 9 February 2001 the investigator in charge ordered a medical forensic examination with a view to establishing the cause of death of Apti Abubakarov, Aminat Abubakarova, Vakha Tseltsayev, Makharbi Lorsanov, Yakub Israilov and Minkail Lorsanov as well as the degree of damage caused to the health of a number of persons wounded during the attack of 19 October 1999, including the second, tenth and sixteenth applicants. 137. Decisions taken in the period between 17 and 18 September 2002 declared the fifth, sixth, seventh and fourteenth applicants civil claimants in the case. The said applicants each submitted to the investigating authorities a claim describing the property lost during the attack of 19 October 1999 and indicating its overall value and the amount of non-pecuniary damage suffered by them. They were notified of the decisions granting them the status of civil claimant on the same dates. 138. In a request of 17 October 2002 the district prosecutor’s office instructed the military prosecutor’s office of the Moscow Garrison to interview as witnesses a number of high-ranking military officers about the circumstances of the attack of 19 October 1999. Mr Khamzayev was notified of that request by a letter of the same date. 139. A decision of 29 October 2002 declared the third applicant a civil claimant in the case. Decisions of 21 January 2003 declared the second and fourteenth applicant civil claimants in the case. The relevant applicants were apprised of the decisions on the same dates. 140. Decisions of 17 January 2003 ordered the seizure of pieces of shrapnel from several residents of the quarter that had come under attack on 19 October 1999, the seventh and fourteenth applicants being among their number. Reports of the same date described the splinters seized. 141. A decision of 19 January 2003 ordered that the splinters seized on 17 January 2003 be included in the case file as evidence. A report of the same date described the results of the examination of those splinters by the investigator in charge. 142. A decision of 25 January 2003 ordered an expert examination of the pieces of shrapnel seized on 17 January 2003 with a view to establishing their origin. 143. In a letter of 17 February 2003 the district prosecutor’s office requested the Urus-Martan Administration to establish a competent commission to assess damage inflicted on the individual houses during the attack of 19 October 1999 and to draw up evaluation reports. 144. In another letter of the same date the district prosecutor’s office informed the military commander’s office of the Urus-Martan District (военный комендант Урус-Мартановского района) that after the bomb strike of 19 October 1999 two unexploded bombs remained lying on the plots of land at two private properties and invited the military commander’s office to take measures to dispose of those bombs. A similar letter was sent to the military commander’s office of the Chechen Republic (военный комендант Чеченской Республики) on 26 February 2003. 145. Decisions of 16 February 2003 ordered a medical forensic examination of those wounded during the attack of 19 October 1999, including the second and eighteenth applicants. 146. In a letter of 27 February 2003 an expert informed the investigator in charge that a medical forensic examination could be carried out only on the basis of original medical documents and in the presence of the persons in respect of whom such examination had been ordered. The expert thus returned the orders for medical forensic examination and enclosed certificates to the investigator in charge stating that it was impossible to conduct the required examination on the basis of those documents. 147. On 4 March 2003 the investigator in charge requested Urus-Martan hospital to adduce medical files of the six residents of Urus-Martan killed during the incident of 19 October 1999. 148. According to a report of 23 April 2003, on the date in question the register of the combat air missions of the federal forces in the Chechen Republic for the period between 8 and 27 October 1999 and the tactical map for the period between 13 and 26 October 1999 were examined by the investigating authorities. The report then described in detail the entries made in those documents as regards the air combat missions on 19 October 1999. It also indicated that, according to those documents, Urus-Martan had not been attacked by the federal aircraft on the date in question and that the only targets hit that day had been located at distances of one and twenty-two kilometres from the town. 149. A report of 30 April 2003 reflected the result of the examination of the register of military actions of the aircraft of the United Group Alignment (журнал боевых действий авиации ОГВ) for the period from 29 September 1999 to 20 January 2000. According to the report, on 19 October 1999 two entries had been made in the register; they concerned two attacks by federal military helicopters against illegal fighters who had been located about forty kilometres from Urus-Martan. There was no other information regarding the events of 19 October 1999 in the register. 150. As can be ascertained from a report of 5 May 2003, which is barely legible, on that date the investigating authorities examined the register of military actions of the United Group Alignment comprising the period between 25 September and 29 November 1999. It appears that in the register there were no entries to the effect that any aerial strikes had been carried out on Urus-Martan on 19 October 1999. 151. In a letter of 16 May 2003 the district prosecutor’s office forwarded to the military prosecutor’s office of the United Group Alignment medical certificates attesting the injuries received by residents of Urus-Martan during the attack of 19 October 1999. The letter also indicated that in Urus-Martan hospital there were no medical files of those who had been killed during the strike. It further stated that the district prosecutor’s office was unable to send to the military prosecutor’s office of the United Group Alignment forty-one splinters seized at the scene of the incident as those splinters had been sent for an expert examination and had not been given back by experts. Lastly, the letter stated that three aerial bombs found at the scene of the incident had been destroyed by specialists. 152. In letters of 31 May and 5 June 2003 the investigator in charge requested relevant military units to provide information on the identity of the pilots who had carried out bomb strikes at a distance of one kilometre from Urus-Martan on 19 October 1999. 153. In letters of 3 June 2003 the investigator in charge requested various competent authorities to provide information as to whether the residents of Urus-Martan listed in that letter had been involved in the activities of illegal armed groups. The list of names included those killed during the attack of 19 October 1999 as well as those who had been granted victim status in connection with that incident. On 29 October 2003 the Russian Federal Security Service replied that four persons included in the list had participated in the activities of the illegal armed groups. 154. In two letters of 10 June 2003 the acting commander of military unit no. 22290 – an air-force unit that had participated in military operations in the vicinity of Urus-Martan in the relevant period – stated in reply to the military prosecutor of the United Group Alignment that it was not possible to submit their unit’s tasking schedule (плановая таблица) for 19 October 1999 as it had been destroyed in November 2000, given that pursuant to a relevant order of the Russian Ministry of Defence its storage time had been one year. The letters went on to say that in the relevant period no register of orders received and given had been maintained, no register of combat air missions had been maintained, no register of military actions had been maintained and no tactical map had been maintained. The letters also stated that the means of objective control – testorograms and photographs – for 19 October 1999 had been unavailable as they had been destroyed a year after that date, as prescribed in a relevant order of the Russian Ministry of Defence, and no tape-recordings were available as they had only been kept for three months. Lastly, the letters indicated that the register of the commander’s military orders and the map for the commander’s orders for military actions had been sent to Rostov-on-Don in December 2000. 155. An expert report of 20 June 2003 stated that the metal fragments seized on 17 January 2003 (see paragraph 140 above) were pieces of industrially manufactured metal objects that had been destroyed by explosion of a contact charge and that some of them might be fragments of ammunition. 156. A report of 2 July 2003 on the examination of a video-recording of the process of excavation and destruction of unexploded aerial bombs that had remained after the attack of 19 October 1999 stated that it had been established that they had been highly explosive bombs of 250-270 kg calibre. 157. In a letter of 3 July 2003 the commander of military unit no. 11731, which at the relevant time was participating in military actions in the vicinity of Urus-Martan, stated that all the documents relating to operations in October 1999, and, namely, a register of orders given and received, a register of combat air missions, a register of military actions, combat orders, pilots’ reports on their missions and a tactical map, had been destroyed on 13 December 2001 as they had lost their practical value and had had no historical or scientific value. 158. By a decision of 20 October 2003 the investigator in charge ordered an examination by operative and tactical expert with a view to establishing whether there had been any shortcomings in the organisation and execution of a bomb strike in the vicinity of Urus-Martan on 19 October 1999 on the part of the commander of the Group “West”, General Major Sh., and the commander of the United Air Forces Group, General Lieutenant G. 159. A report of 16 November 2003 gave the results of the operative and tactical experts’ examination. The experts stated that General-Major Sh.’s decision to carry out bomb strikes on 19 October 1999 on fortified points and bases of illegal armed groups and on their radio and electronic facilities had been well-founded and timely, as at that time the town of Urus-Martan had been occupied by illegal fighters, amounting to over 1,500 persons, who had fortified it and had not been prepared to surrender and who had been reinforced with a new group of around 300 illegal fighters a day before the attack. According to the experts, any other methods of action by federal forces, such as a ground attack, storming, forcing out, would have led to unjustified losses among them. The experts also stated that, when organising the bomb strike in question the command of the Group “West” had taken certain measures with a view to minimising civilian casualties. In particular, according to the report, the military authorities had opted for pinpoint strikes, which had resulted in only six people being killed and seventeen wounded, four of the latter belonging to illegal armed groups. On the other hand, considerable losses had been caused to the illegal fighters who, as a result, had subsequently, on 7 and 8 December 1999, surrendered the town without fighting with the result that there had been no casualties among the federal armed forces. The report thus concluded that the actions of General Major Sh. and General Lieutenant G. had complied with all relevant instructions and regulations, including the Infantry Field Manual, that the decision to carry out a strike on 19 October 1999 had been reasonable and that the federal aircraft had been used in Urus-Martan on 19 October 1999 pursuant to competent officers’ decision and taking into account the existing situation and intelligence data. 160. The case file contains written explanations given on 18 March 2000 by Mr K. – the Head of the Headquarters of the Group “West” – to the prosecutor of military unit no. 20102. According to them, during the period of 19-20 October 1999 the Group “West” had been entrusted with a mission to force out illegal armed groups from the town of Urus-Martan. In Mr K.’s submission, in order to avoid casualties among civilian residents of Urus-Martan, the federal command had repeatedly applied to them with a request for the Wahhabis to discontinue their resistance and leave the town and had warned the residents that otherwise the Wahhabis would be destroyed by artillery fire and aerial attacks. Therefore, according to Mr K., the civilians residing in Urus-Martan had been warned; however, given that the illegal fighters had not surrendered, pinpoint bomb strikes had been carried out on their bases. In Mr K.’s submission, bomb strikes had been carried out by the military aircraft on the basis of information obtained by the latter’s intelligence service. Mr K. also noted that in December 1999 the federal forces had blocked Urus-Martan for further “sweeping-up” operations. During a witness interview of 18 April 2003 Mr K. stated that he could not give any explanations regarding the events of 19 October 1999, as he did not remember anything. He also stated as regards his written explanations of 18 March 2000 that the signatures on that document were his, but that he did not remember that he had actually stated what was written there. He added that at present he was unable to comment on those explanations given that more than three years had elapsed since the date when they had been given. 161. In their explanations of 4-6 July 2000 a number of eyewitnesses, including the fifth, sixth, ninth and fourteenth applicants, described the attack of 19 October 1999, stating that on the date in question, approximately between 12.30 and 1.30 p.m., two Russian military planes had arrived and that one of them had carried out strikes outside the territory of Urus-Martan, whereas the other one had bombed the residential quarter in which the eyewitnesses lived. The fifth applicant and Mr A., another resident of the quarter that had come under the attack, also stated that the residents of Urus-Martan had not been warned about any bomb strikes. 162. During witness interviews in the period from 7 September to 4 October 2000 the second to seventh, ninth, tenth, fourteenth, sixteenth, eighteenth and nineteenth applicants described the circumstances of the attack of 19 October 1999. Fifty-one other residents of the quarter that had come under the attack were also questioned during the period between 7 September and 5 October 2000 and gave similar accounts of the incident in question. In the period between 7 and 12 July 2001 nine residents, including the nineteenth applicant, were again interviewed in connection with the incident. 163. In explanations of 12 March 2001, Mr Z. – a senior officer of military unit no. 45881 – stated that, according to that unit’s tactical map, the town of Urus-Martan had not come under aerial attacks in the period between 18 and 27 October 1999, and that on 19 October 1999 at 1.30 p.m. high-explosive 250 kg aerial bombs had been launched against a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan. As regards the information in the register of combat air missions (see paragraph 177 below), Mr Z. stated that the coordinates mentioned there had been situated twenty-six to twenty-seven kilometres from Urus-Martan. During a witness interview of 12 November 2002 Mr Z. confirmed that he had been seconded to the Chechen Republic at the material time but stated that from 11 October to 28 November 1999 he had been on leave outside the territory of the Chechen Republic, and therefore he had never participated in the planning and organisation of the aerial attack of 19 October 1999. He added that he could not be a witness in the case concerning that incident, as he had been serving in a military unit other than that which had participated in that attack. 164. In a witness interview of 21 January 2003 Mr M., at the material time a First Deputy Head of the General Headquarters of the Russian Armed Forces, stated that, as far as he knew, during the counter-terrorism operation in the Chechen Republic no bomb or missile strikes, or any other aerial attacks had been planned or carried out on inhabited settlements. According to Mr M., such strikes had been carried out only on pre-selected targets relating to the activities of illegal armed groups. 165. In his witness interview of 25 January 2003 Mr Mikh., at the relevant time the Deputy Commander-in-Chief of the Russian Air Forces, stated that he had not given any orders to carry out a bomb strike on the town of Urus-Martan on 19 October 1999, and that he was unaware of any bombing of Urus-Martan by federal aircraft. 166. During questioning of the same date Mr Ch., a Deputy Head of the Chief Headquarters and the Head of the Operative Administration of the Air Forces, made similar statements. 167. In a witness interview of 24 April 2003 Mr A., a high-ranking military officer who at the material time had been seconded to the Chechen Republic, stated that he knew nothing of a bomb strike on Urus-Martan on 19 October 1999 and was therefore unable to provide any relevant information in that respect. He was also unable to give any explanation as regards his reply of 15 February 2001 to Mr Khamzayev’s complaint concerning the attack of 19 October 1999 (see paragraph 57 above). 168. In a witness interview of the same date Mr B., a high-ranking officer who at the relevant time had been seconded to the Chechen Republic, stated that he knew nothing about the attack of 19 October 1999 on Urus-Martan as in that period he had been in charge of operations in another area of the Chechen Republic. He was unable to provide any information other than that indicated in his reply to Mr Khamzayev dated 23 November 2000 to the effect that the federal air forces had never bombed Urus-Martan. 169. During questioning on 25 April 2003 Mr G., at the material time the Commander of the United Air Forces Group in the Chechen Republic (see paragraph 29 above), stated that he did not remember the events of October 1999, as much time had elapsed since them, and that all the actions of the federal air forces for that period had been recorded in the register of combat air missions and tactical map. 170. During questioning on 29 April 2003 Mr P., a high-ranking military officer seconded to the Chechen Republic at the material time, made similar statements. 171. On 9 and 10 June 2003 the investigating authorities questioned a number of officers of the federal air forces who had taken part in military operations in the vicinity of Urus-Martan at the relevant time. Two pilots, Par. and Mak., who in the relevant period had been seconded to the Chechen Republic and served in military unit no. 22290, stated that in October 1999 they had received an order from their commander, Colonel Mar., to carry out strikes in pre-selected rectangles on targets representing illegal armed groups on the northern and north-western outskirts of Urus-Martan. According to the pilots, when carrying out the strikes they used missiles rather than aerial bombs given that the targets had been located very close to the town. The pilots stated that they had not used aerial bombs during their combat mission and had not carried out any strikes on residential quarters of Urus-Martan. They also insisted that any technical errors during the strikes, deviation from pre-selected targets and accidental striking had not been possible. 172. In his witness interview of 16 June 2003 Mr Iv., who in the relevant period had been seconded to the Chechen Republic as an officer of the Russian Ministry for Emergency Situations, stated that he had participated in deactivation of unexploded bombs that had remained, inter alia, in Mayakovskiy Street in Urus-Martan after the attack of 19 October 1999. He confirmed that on 2 and 3 April 2003 two unexploded aerial bombs had been excavated and then taken away and destroyed. 173. During questioning on 2 and 3 July 2003 four pilots, Pog., Ab., D. and Sh., who at the material time had been seconded to the Chechen Republic and served in military unit 11731, stated that they had performed a flight in a group of four planes on 19 October 1999 to the southern mountainous area of the Chechen Republic. According to Mr Pog., the planes had been laden with aerial bombs of calibre 250 or 500 kg. The pilots also stated that the results of the bombing had been recorded by means of objective control devices – video recorders and photographic cameras – and after the flight had been given to a commanding officer. The pilots insisted that they had been instructed to launch bombs in an area situated at a distance of no less than three kilometres from any inhabited settlement and that they had never carried out any strikes on Urus-Martan. They also stated that they had never heard of any such incidents, as in that case an internal investigation should have been carried out and those responsible should have been punished. 174. The case file also contains witness statements of Mr S., a pilot of a federal plane that had been shot down by rebel fighters on 4 October 1999 with the result that the other pilot of that plane had died and Mr S. had been captured by fighters. Mr S. stated that on the date in question they had been given orders to search for another federal plane that had been shot down by extremists the previous day, and then described the incident of 4 October 1999. 175. The case file contains evaluation reports (дефектные акты) drawn up by the Urus-Martan Administration on 21 January 2000 in respect of the properties at 15, 19 and 24 Dostoyevskiy Street. The reports referred to the second, fifth and seventh applicants respectively as the owners of those properties and listed in detail the damage inflicted thereon. 176. As can be ascertained, at some point the second, fourteenth and nineteenth applicants filed with the investigating authorities a claim listing in detail their possessions lost during the bomb strike and indicating their value and the overall amount of pecuniary damage suffered. 177. An extract from a register of combat air missions signed by Mr K. (see paragraph 160 above) indicated that on 19 October 1999, between 3 and 3.10 p.m., a pair of SU-25 planes had carried out a bomb strike in a rectangle with coordinates [X] and [Y], that a truck with illegal fighters had been destroyed in a rectangle with coordinates [X1] and [Y1] and that a car with illegal fighters had also been destroyed. 178. A telegram of 17 November 2000 sent by a commanding officer of military unit 41001 stated that in October 1999 the targets selected for aerial strikes included illegal fighters’ bases, their fortified points, their ammunition depots, and the like, that during the relevant period the residential quarter in which the applicants lived had not been selected as a target, that on 19 October 1999 no pilots had been given an order to carry out a bomb strike on that quarter, and that no such strike had taken place on the date in question. 179. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Russian Code of Criminal Procedure (“the CCP”). 180. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 181. Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Paragraph 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private lives of participants in criminal proceedings without their permission. 182. By virtue of Article 151 of the Russian Civil Code, if certain actions impairing an individual’s personal non-property rights or encroaching on other incorporeal assets have caused him or her non-pecuniary damage (physical or mental suffering), the court may require the perpetrator to pay pecuniary compensation for that damage. 183. Article 1069 provides that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the expense of the federal or regional treasury. 184. The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом» – “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows: “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities; ‘counter-terrorism operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorism operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorism operation is conducted; ... ” “On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorism operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 185. Presidential Decree no. 2137 of 30 November 1994 “On Measures Aimed at Restoration of Constitutional Lawfulness and Order within the Territory of the Chechen Republic” prescribed that a group of federal forces should be created for disarmament and liquidation of illegal armed groups in the Republic. This Decree was annulled by a Presidential Decree of 11 December 1994. 186. Presidential Decree no. 2166 of 9 December 1994 “On Measures Aimed at Suppression of the Activity of Illegal Armed Groups within the Territory of the Chechen Republic and the Zone of the Chechen-Ingush Conflict” prescribed that the Russian Government should use all means at the State’s disposal to ensure the State’s security, lawfulness, rights and freedoms of citizens, public order, fight against crime and disarmament of all illegal armed groups. 187. Governmental Decree no. 1360 of 9 December 1994 indicated a number of measures of a general character which various Russian ministries should take for the successful implementation of Presidential Decree no. 2166 of 9 December 1994. 188. Presidential Decree no. 898 of 5 September 1995 provided, inter alia, for a lump-sum payment of 20,000 Russian roubles (RUB) to the families of individuals who had died as a result of the hostilities in the Chechen Republic. The Decree also stated that individuals who had incurred pecuniary losses, including those who had lost their home, should be paid compensation, and entrusted the Russian Government with the task of making the relevant payments to those concerned. 189. In Decree no. 510 of 30 April 1997 the Russian Government established that residents of the Chechen Republic who had lost their housing and/or other possessions during the hostilities in the Republic and who, no later than 12 December 1994, had left permanently for another region, were entitled to compensation. 190. Decree no. 1255c of the Russian President “On Measures Aimed at Increasing the Effectiveness of Counter-Terrorism Operations within the Territory of the North-Caucasian Region of the Russian Federation” of 23 September 1999 provided that the United Group Alignment be formed in the North-Caucasian region from units and detachments of the Russian armed forces, those of the interior troops and departments of the Russian Ministry of the Interior, departments of the Russian Ministry for Emergency Situations, those of the Federal Security Service and the Federal Guard Service. The decree also empowered the commander of the United Group Alignment to take decisions that were binding for all the forces forming the United Group Alignment. 191. Governmental Decree no. 404 of 4 July 2003 established the right of all permanent residents of the Chechen Republic who had lost their housing and any possessions therein after 12 December 1994 to receive compensation in the amount of RUB 300,000 for the housing and RUB 50,000 for the other possessions. 192. On 14 December 2000 the Basmanny District Court of Moscow delivered a judgment in civil proceedings brought by a Mr Dunayev, who claimed that the block of flats in which he had lived had collapsed during heavy shelling of Grozny by the federal armed forces in January 1995 and sought compensation for pecuniary and non-pecuniary damage in that connection. While acknowledging the fact that Mr Dunayev’s property, including his apartment in the block of flats, had been destroyed as a result of an attack in 1995, the court noted, inter alia, that under Articles 10691071 and 1100 of the Russian Civil Code, the State was liable for damage caused only by unlawful actions on the part of its agents. It further held that the military operation in the Chechen Republic had been launched by virtue of relevant presidential and governmental decrees, which had been found to be constitutional by the Russian Constitutional Court and were still in force. Accordingly, the court concluded that the actions of the federal armed forces in the Chechen Republic had been lawful and dismissed Mr Dunayev’s claim for compensation (see Dunayev v. Russia, no. 70142/01, § 8, 24 May 2007). 193. On 4 July 2001 the Basmanny District Court of Moscow dismissed a claim against the Ministry of Finance brought by a Mr Umarov, who stated that his house and other property had been destroyed during massive air strikes and artillery shelling of Grozny by the federal armed forces in October and November 1999 and sought compensation for pecuniary and non-pecuniary damage in that connection. The court acknowledged the fact that Mr Umarov’s private house and other belongings had been destroyed as a result of the hostilities in 1999 to 2000. It held, however, that under Article 1069 of the Russian Civil Code, the State was liable for damage caused only by unlawful actions on the part of its agents. It noted that the military operation in the Chechen Republic had been launched by virtue of relevant presidential and governmental decrees, which had been found to be constitutional by the Russian Constitutional Court, except for two provisions of the relevant governmental decree. In that connection the court noted that the two provisions had never been applied to Mr Umarov, and therefore no unlawful actions on the part of State bodies had ever taken place to warrant compensation for damage inflicted on his property. On 12 April 2002 the Moscow City Court upheld that judgment on appeal (see Umarov v. Russia (dec.), no. 30788/02, 18 May 2006). 194. By a default judgment of 3 December 2001 the Leninskiy District Court of Stavropol dismissed a claim brought by a Ms Trapeznikova against a number of federal ministries in so far as she alleged that the block of flats in which she had lived had been destroyed by a missile during an attack by the federal armed forces on Grozny in January 2000 and sought compensation for the destroyed flat and belongings that had been in it. She also sought compensation for non-pecuniary damage. The court noted, inter alia, that under Article 1069 of the Russian Civil Code, the State was liable for damage caused only by unlawful actions on the part of its agents. It further found that the actions of the Russian federal troops in the Chechen Republic had been lawful, as the military operation in the Chechen Republic had been launched under relevant presidential and governmental decrees, which had been found to be constitutional by the Russian Constitutional Court. The court concluded that there were no grounds to grant Ms Trapeznikova’s claim for pecuniary damage and that her claim for compensation for non-pecuniary damage could not be granted either, in the absence of any fault or unlawful actions on the part of the defendants. The judgment was upheld on appeal by the Stavropol Regional Court on 30 January 2002 (see Trapeznikova v. Russia, no. 21539/02, § 30, 11 December 2008).
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train
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001-81723
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ENG
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NOR
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ADMISSIBILITY
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THIERMANN AND OTHERS v. NORWAY
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Inadmissible
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Christos Rozakis
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The application was introduced on 10 June 2003 by three groups of applicants. The first group included seven applicants who were parties to the first set of proceedings instituted before the domestic courts: (1) Mr Werner Hermann Thiermann (Farstad, Norway), (2) Mrs Harriet von Nickel (Al Made, Portugal), (3) Mrs Anne-Marie Grübe (Sarpsborg, Norway), (4) Mrs Gerd Synnøve Andersen (Sarpsborg); (5) Mr Karl Otto Zinken (Ski, Norway); (6) Mrs Tove Laila Strand (Oslo, Norway); (7) Mr Paul Hansen (Oslo). They are all Norwegian nationals. The second group consisted of 48 persons whose names are listed in the Appendix hereto and in respect of whom a second summons was issued before the national courts (this summons had concerned altogether 50 litigants). They are all Norwegian nationals. The third group comprises 60 persons whose names are listed in the Appendix and in respect of whom a third such summons was issued (this summons had concerned altogether 64 litigants). Two of these persons are citizens of Sweden, the remainder are Norwegian nationals. As the parties of both the second and third group were not allowed to join the case of the first group, they filed a separate action, which was stayed pending the outcome of that brought by the first group. In the light of the result they considered it futile to pursue their action. On 12 December 2003 a fourth group of 44 persons, whose names are listed in the Appendix (two of whom are citizens of Sweden, one of Germany and the remaining are Norwegian nationals), joined the above-mentioned application introduced on 10 June 2003. Because of the outcome in the case pursued by the first seven applicants, they considered bringing any proceedings themselves before the national courts to be devoid of any purpose. The applicants are represented before the Court by Mrs R.H. Spydevold, a lawyer practising in Oslo. The Government are represented by their Agent, Mr Thomas G. Naalsund, Attorney General's Office (Civil Affairs). The facts of the case, as submitted by the parties, may be summarised as follows. The applicants have in common that they have a Norwegian mother and a German father and were born during the Second World War. A number of them were registered as children of “Lebensborn” (which means “spring of life”). The “Lebensborn” was a Nazi project created by Heinrich Himmler in 1935, with the aim of taking care of mothers and children who were deemed valuable from “a racial and genetic” point of view. Young girls considered "racially pure" were to be offered the possibility to give birth to a child in secret. The child was then to be given to the SS organisation which was to look after his or her education and adoption. A Norwegian centre was established in 1941. During the period between late 1940 and 8 May 1945, between 10,000 and 12,000 children were born in Norway from a Norwegian mother and a German father. They were referred to as “war children” (krigsbarn). A large number of mothers to war children were marginalised, had great difficulties in obtaining gainful employment and were incapable of providing for the upbringing of their offspring. In many instances their children were placed for adoption, in foster homes or in institutions. Towards the end of the War and thereafter, various public officials, notably clergymen and medical doctors, expressed publicly negative opinions about the war children. This included allegations to the effect that the latter were defective individuals and potential fifth colonists. On 9 July 1945 the Ministry of Social Affairs appointed a War Children Committee (krigsbarnutvlaget) to review whether it was desirable to deport the war children and their mothers to Germany and, in any event, what special measures could be taken to integrate the children as ordinary citizens in Norway. The Commission's report, which was completed in the autumn of 1945, advised against deportation and recommended the launching of an extensive and carefully prepared information campaign in order to influence public opinion to become favourable towards the war children and to extend that concept to cover not only those children whose fathers were German but also those whose fathers were of other foreign nationalities. According to information supplied by the Government, the authorities concluded that in the circumstances at the time such a campaign was neither necessary nor desirable. In this connection the Government referred to the minutes of the Sixth Nordic Child Protection Congress in 1948, according to which the Norwegian representative, and secretary-general of the Norwegian Child Protection Council, Mr Oscar Lyngstad, stated: “The authorities have accepted the consequences of the fact that under Norwegian law the children are Norwegian citizens with the same legal position as other children. It is now generally recognised that the war children should fit into society among other children without attention being specially drawn to them.” The Government further referred to a Bill to Parliament (Odelstingsproposisjon No. 37 (1949), page 2, which stated: “The War Children Committee made its report in November 1945 and here proposed a number of measures with a view to solving the different problems that were expected to arise. The Commission also proposed a special War Children Act. None of these measures were implemented, as it was found that the children were quite quickly absorbed by society. Most were taken in by relatives or put up for adoption. It has not been necessary in the interests of either the children or their mothers to take special protective measures.” According to the applicants, the authorities were responsible for having actively and passively contributed to war children having been treated as “free for all”. This failure had occurred despite the authorities' having been aware, as it emerged from the War Children Committee's report, of widespread public opinion that the war children were potential fifth colonists, mentally retarded and carriers of poor genes. As a result, a number of war children had been placed in psychiatric institutions without adequate prior expert assessment. Many had been subjected to discrimination, harassment and ill-treatment in children's homes, educational establishments, adoptive homes and foster homes and to derogatory treatment in their close social environment. In his New Year speech to the Norwegian people on 1 January 2000 the Prime Minister, Kjell Magne Bondevik stated: “... [W]e cannot let the turn of the century pass without taking in the injustice suffered by many war children in the Post War area. On behalf of the State of Norway I should like to apologise for the discrimination and injustice to which they had been subjected.” The first, second and third groups of applicants, but not the fourth group, submitted briefs about their individual story with their initial application. In connection with the Court's oral hearing on 8 March 2007 most of the applicants in the fourth group submitted such information. On that occasion the applicants in the first group submitted various medical statements and other documents regarding their personal health that were submitted in the domestic proceedings, notably before the High Court. Also a number of the applicants in the second group and a few of the applicants in the third and fourth groups submitted such statements, mostly of more recent dates. The documents provided information on their health status and variously also on the applicant's accounts about their past as war children. For the purposes of the present decision, the Court considers it sufficient to reiterate the accounts of the first seven applicants. The first seven applicants are members of the Krigsbarnforbundet Lebensborn (Association of War Children of Lebensborn), which was created in 1999 and has approximately 80 members. There is also Norges Krigsbarnforbund (the Norwegian War Children Association), set up in 1986 and comprising around 700 members. The first applicant, Mr Werner Hermann Thiermann, was born in 1941. During the War he lived in a children's home established by the Germans. Thereafter he was placed successively in about 20 different homes. For a few years he lived with his grandmother, before being placed with foster parents. The first applicant submits that while he was living in one of the children's homes, he and a little girl were locked up in a pig house for a whole day because, so they were told, they stank. It was scorching hot and when they were released at night they were almost unconscious. They were scrubbed with a piassava brush, water and ammoniac. During this treatment they were made to understand that it was due to the fact that they were war children. Because he was a war child, the first applicant was harassed at school and in his close environment, without anybody trying to stop it. As a nine-year old he was, with his teacher's blessing, raped by some older boys at school. After having finished school at the age of 17 he went off shore. He spent a few years in Germany and then returned to Norway in order to serve his military service. He wished to pursue further education within the Army, but was dissuaded from doing so because of his background. When he was 16 or 17 years old he took for the first time formal steps to look into his background, with the assistance of the Red Cross. During most of his professional life, the first applicant had worked as a driver. From 1981 to 1985 he ran his own business as a lorry driver. In 1986 he went bankrupt and in 1987 he was granted a disability pension on account of psychological problems and back pain. In 1999 he resumed working as a driver, part time. Born in March 1942, the second applicant, Mrs Harriet von Nickel, lived during her first 17 months with her grandmother, until she was placed with foster parents who had initially asked for a boy. Love and care were totally lacking in the foster home, where she was told that she was ugly, bad, stupid and had heinous genes. She was regularly locked up in a utility room near the hall to wait for her foster father to come home and hit her. On some occasions, in order to prevent her from escaping, she was attached by a dog chain. She was spanked extensively both at home and at school. Once during a geography lesson she was asked to stand up so that the whole class could see what a “German kid” (tyskerunge) looked like. When she was seven or eight years old a dentist purposely drilled her gum. At the age of nine or ten some alcoholics in her neighbourhood marked a swastika with a nail on her forehead and verbally abused her. She fled from her foster parents and went to Germany to see her father, but there she was arrested as an illegal immigrant and was returned to Norway. For a short period she went to secondary modern school, but had to leave. In 1989 she applied for a disability pension, which she was granted with effect from 1 June 1988. In 1990 she published a book about her background. The third applicant, Mrs Anne-Marie Grübe, was born in April 1944. After the war her mother worked and left her at home all day unattended, until she was moved to her grandmother's home in Moss. There she was beaten a lot by her grandmother and her aunts. One of her aunts told her that if her mother had stayed away from the Germans her grandmother would not have had to take care of her. It did happen that she was given presents, but she experienced that these could be taken away from her after a few days. Frequently house arrest was imposed upon her. Love and care were missing in her home. She started at ordinary school but was moved to a class for children needing special attention. She was harassed at school. In her local environment people shouted words like “German kid” or “løsunge”. Over the years she has had great psychological and physical problems. She started to receive a disability pension in 1974. The medical certificate supporting her pension application referred to her traumatic childhood. The fourth applicant, Mrs Gerd Synnøve Andersen, was born in August 1944 in Sarpsborg. She believes that for the first two years of her life she was placed in a barracks. Thereafter she was placed in a children's home. She was washed with scalding hot water, being told by the headmistress that this was the best and only way of cleaning “German children” with greasy hair. The children's home deprived her of her liberty and prevented her from having normal social contacts as she was never allowed to receive visits from friends. Throughout primary school she was placed in a class for children needing special attention. Due to lack of knowledge, she did not manage to complete secondary modern school. She was regularly exposed to violence. During her sixth school year a teacher sexually abused her. This was witnessed by the whole class and led to the teacher's dismissal. When she married at 18 years old the priest stated that he thought she should be sterilised. In 1995 she started to receive a disability pension. The fifth applicant, Mr Karl Otto Zinken, was born in August 1941. He stayed in a children's home in 1945. As a six year old he was returned to his mother. He went to ordinary primary school before he was placed in a special school for retarded persons, which he completed. It is clear that he should never have been sent to such a school and that the reason for sending him there was his status as a war child. In connection with a medical examination he was subjected to brain-washing by a psychiatrist together with other men who surrounded him in a circle. They told him what a scum of the earth he was and that he should not seek to multiply; otherwise he would go to hell. He should never assert himself, or else he would be killed. He was raped by two of the men. The fifth applicant was rejected by his stepfather's family and was harassed by the latter's children. He was never cared for and had a terrible childhood and youth. As an adult he had a normal life with a good job. The ill-treatment and his attempts to suppress the traumas he had experienced led him into a deep psychotic state in 1996 and incapacity to work. In the years that followed he was committed to a psychiatric hospital a number of times. The sixth applicant, Mrs Tove Laila Strand, was born in November 1941 in Hønefoss. At the age of two she was taken from her mother and sent to Germany, where she lived with her grandparents until the age of six, when the Norwegian Red Cross returned her to her mother in Norway. The sixth applicant's mother had previously been declared unsuited to assume the care for her, which was reflected in the manner she was treated by her mother. The latter continuously ill-treated her by hitting her, making burn marks with an iron, scratching her with needles and such like. From the age of six until she turned 15 her stepfather abused her sexually. She fled home. Her physical and psychological suffering gave her an ulcer. Her grandparents in Germany were loving and caring persons and wished to keep her in their care. Had she been able to grow up with them she would most probably have had a normal life with a normal standard of living. In Norway she felt it necessary to keep silent about her origins both in her social and her professional environment, due to the negative self-image that had been imposed on her. She is now so damaged from the ill-treatment that she is incapable of carrying out normal work. The seventh applicant, Mr Paul Hansen, was born in April 1942 at Hurdal Verk. After a certain period he, together with 19 other children, was committed to the Godthåb Lebensborn Home in Bærum. In 1946 he was transferred to the Emma Hjort Psychiatric Hospital, where he stayed until 1950 when he was placed in an institution named Furuheim at Tjøme. After having spent periods at different homes under the mental healthcare services in the Vestfold County he returned to the Emma Hjort in 1960, where he stayed until 1965. He submits that no expert assessment had been made as to the propriety of his being committed to these various institutions. His being wrongly placed had been a consequence of the authorities' decision to transfer the children at the Lebensborn Home to Emma Hjort. He was not exposed to any physical abuse, but the fact that he had been considered mentally retarded and had lived together with persons so considered during his entire upbringing had marked him considerably and constituted a great burden for him, substantially reducing his quality of life. He regularly had nightmares and has been suicidal. In 1984 he was granted NOK 80,000 in ex gratia compensation (billighetserstating) from the State for having received a deficient education. On 10 December 1999 the first seven applicants instituted proceedings before the Oslo City Court (tingrett). They argued that because of their origin they had been the victims of violations of Articles 3, 8 and 14 of the Convention. They considered that the Norwegian State was responsible for the violations, inter alia because public officials had expressed attitudes towards the war children which had contributed to people adopting a negative perception of them, which in turn had led to infringements having been committed against the children. The State had failed to take any action to prevent the abuse, amongst others the measures recommended by the War Children Committee. The first seven applicants sought (1) a ruling to the effect that the State was responsible for violations of their fundamental human rights and (2) ordering the State to pay each of them compensation in an amount not exceeding NOK 2,000,000. The City Court gave a decision and a judgment (kjennelse og dom) on 16 November 2001 with a common reasoning. It observed from the outset that not only did the parties disagree about the manner of resolution of the legal disputes but they also disagreed on what questions the City Court should determine. It found that item (1) of the first seven applicants' requests could reasonably be viewed as one for a declaratory judgment (fastsettelsesdom), whereas item (2) ought to be understood as a compensation claim. The City Court considered that the State could not be held liable for any actions or omissions referable to the period between 1945 and the entry into force of the Convention in September 1953. Moreover, the various instances of abuse of which the first seven applicants complained could not be considered a continuing situation either for the purposes of national law (criminal or tort) or the Convention. In this regard the City Court stressed that it had to be demonstrated in each individual case, as the applicants had attempted to do, that he or she had been the victim of specific violations. The individual plaintiff's claims ought to be considered individually, and thus it was not decisive whether other war children had or had not been victims of violation over a shorter or longer period. Then the City Court went on: “The violations to which [first seven applicants] have referred, concern very different offences. They concern different forms of violation – passivity on the part of the Government, statements from public individuals, serious crimes such as rape, and harassment by private individuals. Moreover, the violations have taken place over a period of 55 years. These are factors that militate strongly against an ongoing situation as this term is defined in compensation and criminal law. This being so, in the City Court's opinion, it cannot be assumed that we are dealing with a single ongoing situation, in the sense that abuses committed in 1945 are not time-barred as long as the victim can today be subjected to a violation of a quite different character. As regards the relationship to the ECHR, it is the individual abuses against which the Convention protects the citizens.” The City Court considered that item 2 of the first seven applicants' request was time-barred under section 9 of the Act relating to the Limitation Period for Claims 1979 (Lov om foreldelse av fordringer nr. 18 of 18 May 1979, hereinafter referred to as “the Limitation Act 1979”), according to which a compensation claim for non-pecuniary damage was time-barred 3 years after the injured person had become or ought to have become aware of the damage and the identity of the person responsible or, in any event, 20 years after the impugned act or other circumstances giving rise to liability. In addition, a 10-year rule which was in force until 1996 was applicable. The City Court was of the view that all of the first seven applicants' claims must have been time-barred under the 20-year rule, which meant that the claims were time-barred at the latest in 1985, 20 years after the youngest plaintiff turned 21. As regards the fifth applicant, he had alleged that the abuse occurred in 1945, 8 years before the entry into force of the Convention. The City Court added that, due to the long lapse of time, it was impossible to prove the alleged violations; no witnesses or documentary evidence could be adduced. Therefore the limitation of the claims did not just have a formal reason but also a substantive one. As regards item 1 of the first seven applicants' requests, the City Court considered that they did not have an actual legal interest for the purposes of Article 54 of the Code of Civil Procedure. In reaching this conclusion the City Court had regard inter alia to its finding that the first seven applicants' compensation claims were time-barred; that the main criticism against the State, namely its failure to take certain measures in the Post War period, fell outside what could be made the subject of a review of the merits of the case; that the first seven applicants' interest in having historical truths ascertained by the judiciary could hardly be achieved given the very great number of war children compared to the number - 122 - of litigants in the proceedings. Nor did the City Court find that making a declaratory judgment in the first seven applicants' case was warranted by other reasons. In cases concerning, as here, allegations of violations of human rights, this would depend on the character of the violation, whether the proceedings had been instituted within a reasonable time, whether other possible remedies had been exhausted; the importance of the case for the victim and the jurisprudential value of the ruling. However, in this case the central points of the first seven applicants' complaint against the State fell outside the temporal scope of the Convention; the possibilities of the judiciary to review policy choices were very limited; the pecuniary claims were time-barred; the applicants had had the opportunity to have their complaints of violations of the Convention examined by the courts; the case concerned mainly circumstances more than 55 years back in time; no information had been submitted to the effect that similar proceedings had been instituted in other countries nor that the treatment of war children had been worse in Norway than in other countries, a question to be assessed by researchers; in order for the 122 out of 10,000 litigants to succeed in the proceedings it would be necessary to provide documentary evidence beyond the first seven applicants' own statements; as was undisputed by them, the alleged violations were not capable of being proved, whereas criminal liability required proof beyond reasonable doubt and civil liability for misplacement and malpractice in respect of the children raised complicated questions. In view of the above, the City Court found it difficult to see how the first seven applicants could benefit from further judicial review of the case. The parties were in agreement that the matter had not come to an end. In the view of the City Court, it would be best for all the parties involved to leave these issues to historians and politicians, not lawyers. The City Court dismissed (avviste) the case by a decision (kjennelse) in so far as item 1 of the first seven applicants' requests were concerned and rejected the claim against the State by a judgment (dom) with respect to item 2. The first seven applicants had been granted free legal aid in the proceedings and the State had made no request for costs. The first group of seven applicants then appealed to Borgarting High Court against the City Court's decision and judgment. On 29 May 2002 the first group of applicants withdrew their appeal against the dismissal by the City Court of item 1 and reformulated their appeal against its judgment regarding item 2. As a result, the former part of the case was discontinued by the High Court in a separate decision, whereas the proceedings concerning the latter part were focused on the limitation issue. By a judgment of 21 June 2002 the High Court, sitting with 3 professional judges and 4 lay judges, unanimously upheld the City Court's judgment, observing inter alia: “[The first seven applicants] argue that their claims in the case are based on Convention violation, and are not claims in damages law in the normal sense. The High Court cannot see that there is any basis for this argument. Norway's accession to the European Convention on Human Rights did not entail an obligation to incorporate the Convention into Norwegian law; the Convention mandated Norwegian authorities, through legislation and otherwise, to safeguard these rights and ensure that they were not interfered with unless authorised under the Convention. [The first seven applicants] have argued that for many years since the Second World War their human rights have been seriously violated, in part through acts of persons for whom the Government must be seen as directly liable, in part because the authorities had failed to protect the war children and safeguard their rights. The High Court bases its consideration of the time-barring on this claim, without needing to take a position on its merits. [The first seven applicants] argue that these acts and omissions on the part of the authorities have caused them damage of both pecuniary and non-pecuniary nature. The claim advanced here by [The first seven applicants] regarding financial compensation for such injury is, in the High Court's view, a compensation claim, as this expression is used for example in the Damage Compensation Act 1969 and section 9 of the Limitation Act. .... [The first seven applicants'] argument that claims for reparation for breach of human rights are not a damages claim in the normal sense cannot therefore succeed. The same applies to the argument that there were previously no statutory powers for the claim under Norwegian law, but that such powers were not created until the Convention was made part of Norwegian law in 1999. In this connection it is not necessary to discuss the detailed content of and development of the State's employer liability, the State's non-statutory objective liability and general liability for negligence in relation to public activities in the years that have elapsed since the Second World War. It follows from the presumption principle that the Norwegian compensation law must be presumed to be, and to have been, in conformity with our obligations under international law, so that the claims for damages could have been raised before the Human Rights Act entered into force, possibly in reliance on the rules of the Convention and the case law of the European Court of Human Rights. It must further be regarded as reliable law that the provisions of the Convention are not an impediment to the individual countries' operating with limitation periods also in areas that are embraced by the Convention's rules. Such time-barring rules are deemed not to be in conflict with Article 6 of the Convention, on the right to have one's civil rights determined by a court, see the European Court of Human Rights' judgment in the case of Stubbings and Others v. the United Kingdom (judgment of 22 October 1996, Reports of Judgments and Decisions 1996IV, § 50-53). The time-barring rules must not be such as to make this right in reality illusory, for example by being unreasonably short. In the Stubbings case the European Court of Human Rights found that it was not incompatible with the Convention that a person's right to bring a civil action for damages for having being sexually abused as a child lapsed three years after that person came of age. It is stated in paragraph 66 of the judgment [...]: '.... Article 8 does not necessarily require that States fulfil the positive obligation to secure respect for private life by the provision of unlimited civil remedies in circumstances where criminal law sanctions are in operation.' As the High Court points out below, [the first seven applicants'] claims must be regarded as time-barred under the twenty-year rule of section 9 (2) of the Limitation Act. The High Court finds it clear that a limitation period of such duration is not incompatible with the Convention. A corresponding view of the power of the state to operate with civil-law time-barring rules follows from the Commission's decision in the case of Dobbie v. the United Kingdom ((dec.) no. 28477/95 16 October 1996) with references. Here it was not deemed to give rise to a violation of Article 8 that the right to bring an action for damages against a physician in connection with a breast operation was limited. Both the Court and the Commission have also noted that there is a 'limitation period' also as regards the right to bring cases before the Court itself, namely the six-month time-limit in former Article 25 and the current Article 35 § 1 of the Convention, a time-limit that is applied strictly, see the Dobbie decision. It follows from the Dobbie and Stubbings rulings that it is not incompatible with Article 6 [...] or Article 8 [...], for the States to operate with limitation rules for civil compensation claims. Nor have States any general duty to pay damages to those subjected to abuse from private persons, see the European Court's decision in Stuart v. the United Kingdom ((dec.) no. 41903/98, 6 July 1999). It must follow from this that, also when a damages claim is brought directly against a State, it can be limited under national rules without impediment from the Convention, even if the claim concerns loss and injury in areas covered by the Convention. It is also reliable law that damages claims against public authorities are time-barred under section 9 of the Limitation Act, and that the rule applies regardless of the ground for liability, see Kjønstad & Tjomsland's 'Foreldelsesloven' (the Limitation Act) (1983) p. 75. Under section 9(2) of the Limitation Act, compensation claims, including claims made outside contractual relations in respect of non-pecuniary damage, are time-barred 20 years after the damaging act or other circumstances giving rise to liability had ceased. The alleged ground for liability on the part of the State was [...] that the authorities had not carried out the necessary measures in order to secure the war children's human rights. As regards failures to act, the starting point for limitation is the time when the duty to act has ceased [...]. Such a duty for the State to act should in the view of the High Court have ceased at least when the [The first seven applicants] reached the age of maturity, which in the case of the youngest of them was in 1965. After this point in time there could not have been any duty for the authorities to launch an information- or attitude building campaign for persons who were born from a German father and a Norwegian mother in connection with the War, or to carry out other measures for the protection of their human rights. This cannot be altered by the fact that the [first seven applicants] have encountered abusive attitudes and speech because of their background even as adults. In this connection there is no basis for the [first seven applicants'] argument that the ground for liability consists of a continuing situation which has not ceased. That the effects of the damaging acts are durable and arise late does not mean that the 20 years' time-limit does not start to run. The High Court adds that, as pointed out by the City Court, the considerations which underlie the limitation rules apply fully in cases such as the present, where there would otherwise be question of adjudicating occurrences and causal events dating 40 to 50 years back in time. The 20 years' rule in section 9 of the Limitation Act was new when the Act entered into force on 1 January 1980. It has later been amended, without it having any importance here. It follows from the transitional provision in section 31 that the [first seven applicants'] possible claims against the State were time-barred at the latest in 1985. The proceedings against the State were instituted in 1999. Therefore the City Court's judgment must be upheld. [...]” The first seven applicants sought to appeal against the High Court's judgment to the Supreme Court, but on 11 December 2002 the Appeals Selection Committee of the Supreme Court refused them leave to appeal, finding it obvious that the appeal had no prospects of success. In January and February 2002, the second and third groups of applicants (who had been refused to join the case of the first group) and the State agreed to stay the proceedings in their cases pending a legally enforceable decision in the case brought by the first seven applicants, which the City Court decided to accept. In two decisions taken respectively on 2 June 2004 and 23 September 2004 the City Court upheld a request by the State to dismiss the suits from the second and third groups of applicants on the ground that none of the parties had requested resumption of the proceedings within the statutory two years' time limit. On 2 February 2005 the applicants filed with the Court's registry copies of two research reports published in 2004, one entitled Staten og krigsbarna- En historisk undersøkelse av statsmyndighetenes behandling av krigsbarna i de første etterkrigsårene (the State and the War Children, a historic survey of the war children's treatment by the State authorities during the first Post War years) by Mr Lars Borgersrud and the other entitled Krigsbarns levekår, En registerbasert undersøkelse (War Children's Conditions of Life, a Register Based Survey), by Mr Dag Ellingsen. The first report is an extensive study running to some 400 pages. It included (on p. 392) the information set out here below. In July 1945, 30 Norwegian war children whom the Nazis had taken to Germany for adoption had been brought to Sweden, where they had been adopted. On 17 August 1945 the Government had issued a provisional decree (provisorisk anordning) depriving mothers who had married Germans after 9 April 1940 and their children of their Norwegian citizenship indefinitely, following which most of these women were deported. On 12 October 1945 the Government decided to stop the deportation project. The provisions of the above decree had later been included in an Act of 13 December 1946. On 1 January 1949 the Act had been amended so as to make it possible for war children to re-acquire Norwegian citizenship; this did not apply to their mothers regardless of whether they continued to live in Norway. On 8 December 1950 a new Citizenship Act had been adopted, repealing the above-mentioned provisions. Under the new Act the mothers could re-acquire Norwegian citizenship and the children could have this restored as of right when they turned 18 or on application to the Government. In the Act on Child Allowances adopted on 24 October 1946 war children were in effect excluded, which situation persisted until the entry into force on 1 April 1958 of the Bread Winner Insurance Act and Advance Payment Act, both adopted on 26 April 1957. The second report stated (in a summary on p.3) that the living conditions of war children were a complex matter. On the one hand there were a number of findings that indicated that many of the war children had worse living conditions than others of the same age. The mortality during the period from 1960 until present was clearly higher among the war children. The mortality related to suicide was higher, as was that caused by heart and blood illnesses. A number of war children had become disability pensioners at a relatively young age. On the whole it suggested that a considerable proportion had health problems and, as a result, a lower quality of life. The divorce rate was clearly higher among the female war children than others. Fewer had higher education, the average income level was lower, and wealth was clearly less. On the other hand there were several similarities between the war children and other persons of the same age, such as the frequency of marriage, the divorce rate among men and the frequency of parenthood. Many war children appeared to have had a life as ordinary people: they had an ordinary education, an average income, acceptable accommodation, were married and had children. As regards the position of war children and their mothers under Norwegian law on citizenship and maintenance support, the Government submitted to the Court inter alia what is stated here below. In order to avoid dual citizenships it followed from section 8 of the Citizen Act of 8 August 1924 that a Norwegian citizen would loose his/her citizenship if he/she gained another citizenship. The exemption to the rule was if he/she still lived in Norway. The general state of law in Europe prior to the Second World War was that a wife would be accorded her husband's citizenship after marriage. After the war it was deemed as offensive to the general sense of justice if Norwegian women, married to Germans, who therefore had become German citizens, should retain their Norwegian citizenship if they still lived in Norway. The aim of the 1945 decree, transformed into state law in 1946, was to make it possible for the Government to send the spouses, both being German (or Austrian) citizens out of Norway. Other countries had parallel legislation at the time. Most of the amendments (in 1945 and 1946) to the Act of citizenship only applied to children of Norwegian mothers married to German nationals. Since most of the war children were born outside wedlock, they were not within the scope of this legislation. The same was the case as regards the Act on financial aid to mothers. This Act only applied to children of married women who had lost their Norwegian citizenship and did not discriminate against war children born outside wedlock. No acts were passed in the period after the war which would entail a clear discrimination of war children born outside of wedlock. By 1950, mothers and children who had been deprived of their Norwegian citizenship because the mother had married a German national could reacquire their lost citizenship. As from April 1958, benefits for war children who in effect had fallen outside the 1946 legislation because they were not Norwegian citizens could be sought under Bread Winner Insurance Act and Advance Payment Act, adopted in 1957. Pursuant to these Acts, the State was to advance child alimony to all children, including children with German fathers. Prior to these Acts the Norwegian authorities did not advance child alimony from any fathers, regardless of their nationality. The Damage Compensation Act 1969, section 2-1 reads: “An employer is liable for damage caused intentionally or negligently during an employee's performance of work or functions for the employer, taking into account whether the requirements, which the aggrieved person can reasonably make to the activity or service, have been neglected. The liability does not comprise damage or injury caused by the fact that the employee has exceeded the reasonable limits of his duties, considering the nature and range of the activity and the character of the work or function. For the purpose of these provisions, the term 'employer' means the public authorities and anybody who employs a person in his service, whether for gainful activity or not. For the purpose of these provisions, the term “employee” means anybody who performs work or functions in the service of an employer. The term 'employee' includes 'ombudsmann' in public service, officers and privates in military service and other persons performing compulsory service for public authorities, and inmates, patients and the like who take part in work in the prison authority's establishments, in health institutions etc.” Under this provision, the State, as an employer, can be held liable irrespective of whether it has acted with negligence. Furthermore, the employee/employees do not have to be identified and the employer can be held liable if the cumulative acts of its employees fulfil the criteria laid down in section 2-1. Prior to the 1969 Act, an individual could hold the State responsible for acts of its employees under general principles of law, developed in particular in judicial jurisprudence. Section 2-1 was aimed at codifying those principles. According to the Government, the State, like private individuals, could also be held liable for damage caused by negligence, under the general principles on the law of tort. This could arise in relation to a variety of activities, including notably decision making and the exercise of its different supervision and control functions. Financial claims, including claims for damages, may be lost through limitation. The Limitation Act of 18 May 1979 section 9 regulates the limitation period for claims for damages. The relevant parts of the section read: “1. Claims for damages or redress shall be subject to a limitation period of 3 years from the date on which the injured party obtained, or should have himself acquired, necessary knowledge of the damage and the person responsible. 2. Nevertheless, the limitation period shall be 20 years after the commission of the tort or other ground for liability ceased. ...” Until 1996 section 9 (2) also contained a 10 year limitation rule, which read: “2. Nevertheless, the limitation period shall be at the latest 10 years from the date on which the damage occurred, or 20 years after the commission of the tort or other ground for liability ceased. ....” Even if an individual war child cannot prove that he/she fulfils the legal criteria for obtaining damages from an individual or the State, he/she can apply for ex gratia compensation (billighetserstatning) from the State with respect to injury suffered, either due to the acts or omissions of public authorities or for instance criminal acts by individuals. This is meant to be the last resort to obtain damages when a person has suffered harm or distress. It is sufficient that the application describes the circumstances that form the basis for the claim, and if possible document these with for instance a doctor's or psychologist's certificate, testimony from family, friends or others that have knowledge of the applicant's situation etc. In particular if the events occurred quite some time back, as would be the case in relation to many war children, there are no strict requirements as to the evidence for the acts/omissions that form the basis for the claim. Furthermore, the relevant Ministry has an obligation to look into and examine the case. The arrangement of ex gratia compensation is not subject to any statutes of limitation. Whether the claim for compensation is granted is based on a test of reasonableness. It is in particular relevant if the public authorities can be blamed for the harm. It is sufficient that a public body is to blame; the identification of the wrongdoer among the public official is not a condition. Even where the authorities were not to be blamed, compensation has been awarded, inter alia in cases of personal injury due to criminal acts committed before the Regulation concerning criminal injuries compensation (forskrift om voldsoffererstatning) was passed on 1 January 1975. The amount of compensation awarded ex-gratia is based on an assessment of reasonableness. It does not attempt to cover all economic losses. The committee set to determine applications for ex-gratia compensation, composed by one former Supreme Court Judge and two members of Parliament, may award up to NOK 200 000 (in 2005). Cases where it is deemed necessary to award a higher amount or which are of a specific political nature are to be assessed by Parliament. On 1 July 2005 new rules for ex gratia compensation for war children entered into force and new guidelines were published. As a result, the possibility for war children of obtaining such compensation was expanded; for example, injury caused by bullying was included in the guidelines. The more serious types of infringements against war children were already covered by the existing guidelines, such as sexual assault, wrongful placement in an institution, inadequate schooling and reproachable conduct on the part of employees in the child protection services, within or outside the orphanage. In such cases, compensation is awarded if the circumstances are made sufficiently probable and if they have caused particular suffering, loss etc for the war child. The fact that the individual is a war child does not in itself qualify for compensation. It has been accepted that bullying may be particularly hard to prove after a long time. Thus, for war children Parliament accepted a special arrangement, whereby up to NOK 20,000 may be awarded on the basis of a credible personal statement. If there is documentation of more serious damage due to bullying, a higher amount may be awarded.
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train
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001-107565
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ENG
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SVK
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ADMISSIBILITY
| 2,011
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PYROBATYS, A.S. V RESTRUKTURALIZACII v. SLOVAKIA
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Inadmissible
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Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
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1. The applicant, PYROBATYS, a.s. v reštrukturalizácii (“the applicant company”), is a joint-stock company established under the laws of Slovakia with its head office in Batizovce. The applicant company was represented before the Court by Mr Š. Kseňák, a lawyer practising in Košice. 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 was established in 1995 in the legal form of a limited-liability company with the name of PYROBATYS, s.r.o. It later changed its legal status to that of a joint-stock company under the name of PYROBATYS, a.s. It then entered the process of restructuring, which is reflected in its name, as indicated in paragraph 1 above. The restructuring was concluded in April 2011. 4. On 7 December 1994 two separate contracts were entered into between a joint-stock company, A., and, respectively, the applicant company and a limited-liability company B. (“the contract”). 5. Under the contract A. let property to the applicant company and B. in return for payment of rent. The property consisted of an administration building, factory premises and garages. Leases were concluded for fifty years. 6. On 26 May 1999 the Košice Regional Court (Krajský súd) declared A., which had meanwhile changed its name, insolvent and appointed a receiver. 7. Later in 1999 B. was merged with the applicant company. 8. The applicant company and company A. had the same address, which was formerly also the address of company B. It appears from a publicly available official source (http://www.orsr.sk) that there were also ownership and personal connections between these companies. 9. By a letter of 6 June 2001 A., acting through the intermediary of its receiver, unsuccessfully requested an amicable settlement with the applicant company in respect of an amount of money that was allegedly owed by the latter by way of outstanding rent under the contract. 10. On 1 August 2001 A., acting through its receiver, sued the applicant company before the Poprad District Court (Okresný súd) for payment of rent under the contract. 11. The claimant sought an order for the payment of the equivalent of some 620,000 euros (EUR) and a ruling to the effect that neither party be awarded costs. 12. Despite the claimant’s failure to pay the court fees, the District Court went on to examine the action, inter alia by seeking the applicant company’s written observations in reply to the action and in respect of expert evidence, as well as by twice hearing the action on its merits. 13. To defend the action the applicant company appointed an advocate, for whose services up to 2005 it paid him the equivalent of some EUR 3,840. 14. Meanwhile, on 24 July 2003, the District Court had ordered that the claimant pay the court fees, amounting to the equivalent of some EUR 2,360. 15. On 22 August 2003 the claimant requested an exemption from the obligation to pay the court fees on the ground that, being insolvent, it had no means to pay. 16. On 30 January 2004 the District Court refused the request of 22 August 2003. No copy of the decision was served on the applicant company. Despite a specific written request, to which they have responded, the respondent Government have failed to provide the Court with a copy of this decision and of any other documents or information enabling the Court to ascertain the decision’s content. 17. The decision of 30 January 2004 could have been challenged by way of an appeal on the part of the claimant, in the absence of which it became final and binding on 2 March 2004. 18. By way of an order that was served on the claimant on 10 February 2005, it was again asked to pay the court fees. No payment was made. 19. On 7 March 2005, following a hearing of the action held on the same day, the District Court discontinued the proceedings and ruled that no party was entitled to have its costs reimbursed. The ruling has the procedural form of a decision (uznesenie). 20. The District Court observed that the claimant had neither been granted an exemption from the obligation to pay the court fees nor had it paid the court fees, despite having been ordered to do so. The District Court held that, in such circumstances, pursuant to section 10(1) of the Court Fees Act (Law no. 71/1992 Coll., as amended), the action could not be examined. 21. As to the ruling on costs, the District Court observed that: - the action had not been withdrawn, - the situation was not such as to call for an examination of procedural responsibility for the discontinuation of the proceedings (Article 146 § 2 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended - “the CCP”) and for the application of the criterion of success in the proceedings (Article 142 of the CCP), - Article 150 of the CCP was to be applied, which allowed for moderation of the repercussions of the rules on costs, - the case was “exceptional and worthy of particular consideration” in terms of Article 150 of the CCP, in view of the circumstances in which the contract had been concluded and the fact that the validity of the contract was being examined in another set of proceedings before the District Court, which had the aim of securing vacant possession of the premises in question. 22. The applicant company appealed against the ruling on costs, claiming compensation in an amount equivalent to some EUR 10,500 in respect of legal representation and costs reimbursable under the applicable statutory rules, plus the costs of the appeal. 23. The applicant company contended that the District Court’s findings of fact were erroneous and that its conclusions were not susceptible of review on account of lack of reasoning. 24. Furthermore, the applicant company submitted that its costs were the responsibility of the claimant, who had provoked them. Article 150 of the CCP could only be applied in situations which fell within the purview of one or more of the remaining rules on costs, if all conditions for their application had been met, but their application would produce an intolerable outcome. In so far as the District Court had referred to the other set of proceedings, in which the validity of the contract was to be examined, their subject matter was in fact not the validity of the contract but the amount of the rent set out in it. 25. On 9 February 2006 the Prešov Regional Court upheld the relevant part of the District Court’s decision. The ruling has the procedural form of a decision (uznesenie), in which the Regional Court found that: - the District Court had erred in making reference to the criterion of success in the proceedings (Article 142 of the CCP); - the rule that would normally have had to be applied was that costs are to be borne by the party which had caused the discontinuation of the proceedings (Article 146 § 2 of the CCP); - the District Court had been right in taking account of the financial standing of both parties; - in view of the circumstances the question of the validity of the contract, which was being examined in another set of proceedings, could be considered a ground “worthy of particular consideration”; - by applying Article 150 of the CCP the first-instance court had rightly moderated the repercussions of the application of Article 146 § 2 of the CCP for the claimant, whose only objective was to realise and distribute fairly its estate in insolvency; - the Court of Appeal was also of the opinion that “the amount of the costs would not have existential consequences for [the applicant company] and would not jeopardise its property holdings”. 26. On 19 May 2006 the applicant company lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. 27. The complaint was directed against the Regional Court’s decision of 9 February 2006, the applicant company arguing that that decision had violated its rights to a fair hearing, procedural equality and protection of property, as well as prohibition of discrimination. 28. In particular, the applicant company contended that the amount at stake in the proceedings was rather significant from its perspective and that it had accordingly needed to acquire legal representation. It also advanced the following arguments. 29. The Court of Appeal’s conclusion concerning the lack of dramatic effects of the costs ruling on the applicant company was without any foundation in fact and evidence whatsoever and, as such, plainly arbitrary. 30. The claim for reimbursement of costs was independent of the financial standing of the party making it. In so far as financial standing of a party was to be taken into account, it was only the standing of the party that would otherwise be liable to reimburse another party’s costs. 31. As regards the claimant, at the relevant time it had been the owner of real property. 32. There was no statutory provision for exemption of an insolvent claimant from obligation to pay court fees and neither was there any provision exempting it from reimbursement of procedural costs it had itself provoked. 33. In the present case the claimant had been liberated from responsibility for the consequences of its actions and the burden of this responsibility had arbitrarily been placed on the applicant company. 34. In other words, the applicant company’s property holdings had been interfered with, in that it had been denied a proprietary claim without any legal basis. 35. On 14 December 2006 the Constitutional Court declared the complaint admissible. 36. On 29 March 2007 the Constitutional Court found that there had been no violation of the applicant company’s rights in issue. 37. The Constitutional Court observed that the applicant company had no right to a favourable outcome of the litigation it had been a party to. The reasons given by the Regional Court for its decision were such that any arbitrariness was ruled out. On the one hand, it had upheld the reasons given by the District Court, and on the other it had reinforced those reasons by adding further reasons of its own, in particular the reasons related to the financial standing of both parties to the proceedings. 38. In addition, the Constitutional Court observed that the decision not to exempt the claimant from the obligation to pay the court fees was not the subject matter of the present proceedings and that the relevant circumstances might have changed between that decision and the contested decision not to award the applicant company reimbursement of its costs. 39. In so far as the applicant company had contended that the Regional Court had drawn conclusions concerning its financial standing without actually examining that standing, the Constitutional Court reiterated that, as a matter of principle, it had no power to examine whether the ordinary courts had adequately established and assessed the facts. It emphasised, in particular, that “[t]he fact that the applicant company disagreed with the Regional Court’s view could not give rise to a conclusion that the latter was manifestly ill-founded or arbitrary, nor did it provide for a basis for the Constitutional Court to substitute its own legal opinion for that of the Regional Court.” 40. In accordance with its existing doctrine, the Constitutional Court held that since there had been no violation of the applicable procedural rights of the applicant company, by definition there could not have been any violation of the applicant company’s substantive proprietary rights. In those circumstances, there was no basis for the prohibition of discrimination to be applied either. 41. Article 127 provides that: “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.” 42. Under Article 138 § 1, at the request of the party concerned, the party to the proceedings may be fully or partly exempt from the obligation to pay court fees where it is justified by the situation of that party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success. 43. A party which has been entirely successful is to be awarded costs necessary for purposeful assertion or defence of its rights against the unsuccessful party (Article 142 § 1). In the event of success in part, the costs are normally to be split proportionally (Article 142 § 2). However, even in the event of success in part, full award of costs may be granted if the party was unsuccessful in merely a negligible proportion or if the scope of the substantive claim depended on expert evidence or judicial discretion (Article 142 § 3). 44. A party which is liable for the necessity of discontinuing proceedings is obliged to reimburse the costs of such proceedings (Article 146 § 2). 45. Article 150, as in force at the relevant time, provides that: “If there are reasons worthy of particular consideration, the court exceptionally does not need to award reimbursement of costs or their part.” 46. In a commentary on Article 150, with reference to a previous yearbook of judicial decisions, the view was expressed that, when assessing “reasons worthy of particular consideration”, regard should be had to personal, proprietary, income and other circumstances applying to all parties to the proceedings, and also the circumstances which caused the parties to assert their rights before the court, as well as to their attitude in the proceedings (see Občiansky súdny poriadok, Jaroslav Krajčo a kolektív, Eurounion, spol.s r.o., Bratislava 2004, p. 294). 47. The position described in the preceding paragraph forms part of settled case-law (see, for example, judgment (rozsudok) of the Supreme Court in case file no. M Cdo 14/99, judgment of the Constitutional Court of 23 August 2006 in case file no. III. ÚS 53/06, decision (uznesenie) of the Supreme Court of 30 November 2009 in case file no. 4 MCdo 18/2008 and decision of the Supreme Court of 28 January 2010 in case file no. 2 M Cdo 17/2009). In the decisions quoted, the courts also opined that the application of Article 150 must be rather exceptional and adequately reasoned. The existence of the special circumstances has to be established on the basis of the situation of all parties to the proceedings. It is necessary to take into account not only the situation of the person liable to pay the costs but also the impact of the decision refusing the reimbursement of costs on the property of the party who is entitled to reimbursement under normal circumstances. 48. Court fees are collected, inter alia, for individual procedural steps or for proceedings before the courts, provided that these have to be initiated by an application (section 1(1)). 49. The fee payer (poplatník) is the person making the application for a procedural step which is subject to court fees if the tariff scale provides that the fee is payable on the making of the application (section 2(1)(a)). 50. The duty to pay the court fees arises when the application is made, if made by the fee payer (section 5(1)(a)). In such a case, the court fees become payable at the same time (section 8(1)). 51. If the court fees payable on the making of an application have not been paid, the first-instance court is to order the fee payer to pay the fees within a given period, usually ten days. If the fees have not been paid within this period, the court is to discontinue the proceedings (section 10(1)).
| 0
|
train
|
001-76942
|
ENG
|
TUR
|
CHAMBER
| 2,006
|
CASE OF MEHMET GÜNEŞ v. TURKEY
| 4
|
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
| null |
4. The applicant was born in 1951 and lives in Turkey. 5. On 16 July 1993 the applicant was taken into police custody by police officers from the anti-terrorist branch of the Istanbul Security Directorate on suspicion of membership in an illegal organisation, the TDP (Revolutionary Party of Turkey) and of possessing a false identity card. He was held in police custody until 30 July 1993. 6. On 30 July 1993 he was brought before a judge who ordered his detention on remand. He asserted that he had not signed any statement and claimed that he had been subjected to ill-treatment while in police custody. 7. On 15 September 1993 the Chief Public Prosecutor at the Istanbul State Security Court filed a bill of indictment with the latter charging the applicant under Article 168 § 1 of the Criminal Code with membership of an illegal organisation. 8. On 25 January 2000 the applicant was released from detention. 9. Between 16 July 1993 and 25 January 2000 the Istanbul State Security Court held thirty-six hearings. The applicant requested to be released pending trial several times before the trial court. The Istanbul State Security Court dismissed his request on all occasions, having regard to the state of the evidence, until 25 January 2000. 10. On 26 March 1996 the Istanbul State Security Court requested the Forensic Medical Institute to carry out an analysis as to whether the documents, which were submitted as written evidence, were drafted by the applicant and another co-accused, namely M.A.A.. 11. Until 17 February 2004 the trial court postponed the hearings in order to wait for the Forensic Medical Institute’s report on the issue and to be informed about the prison that M.A.A had been detained. 12. On 17 February 2004 the Istanbul State Security Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Articles 102 and 104 of the Criminal Code had expired.
| 1
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train
|
001-58165
|
ENG
|
FRA
|
CHAMBER
| 1,998
|
CASE OF LETERME v. FRANCE
| 4
|
Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
N. Valticos
|
9. Mr Pierre Leterme, a French national born in 1945, is a computer engineer. He is a haemophiliac and has received numerous blood transfusions. 10. A test carried out on 28 October 1985 showed that the applicant had been infected with the human immunodeficiency virus (HIV). He is classified as having reached stage II of the four stages of infection on the scale of the Atlanta Center for Disease Control. 11. On 12 December 1989 the applicant submitted a preliminary application for compensation to the Minister for Solidarity, Health and Social Protection. He sought compensation for the medical disorders of all kinds he had suffered on account of his infection. This application was rejected on 30 March 1990. 12. On 25 May 1990 the applicant lodged an appeal against the above decision with the Versailles Administrative Court, seeking compensation for the damage sustained as a result of the State’s failure to take appropriate measures to prevent his infection with HIV. On 16 October 1990 he produced a supplementary pleading. 13. The Minister of Health lodged his defence on 22 April 1991. This was communicated to the applicant on 12 June 1991. 14. On 11 July 1991 the applicant was served with an order referring the case to the Conseil d’Etat. The Paris Administrative Court was then designated as the competent court. The application was registered at the Paris Administrative Court on 14 August 1991. 15. On 25 March 1992 the Administrative Court gave an interlocutory judgment, holding that “the State is liable in respect of haemophiliacs who were infected with HIV in the course of transfusion of non-heat-treated blood products during the period of liability defined above, that is between 12 March and 1 October 1985” and that “there are grounds for the Administrative Court to order the State to pay compensation for the whole of the damage suffered”. 16. The Administrative Court also ordered a medical report to determine when it had been discovered that Mr Leterme was HIV-positive and whether he had received blood derivatives during the period of the State’s liability. The expert filed his report on 16 July 1992. 17. By a judgment of 3 March 1993 the court dismissed the applicant’s claim, on the ground that no causal connection had been proved between his infection and the administration of non-heat-treated blood products during the period of the State’s liability, between 12 March and 1 October 1985. 18. On 9 April 1993 the Judicial Assembly of the Conseil d’Etat gave three landmark judgments, fixing 22 November 1984 as the start of the period of the State’s liability and awarding the victims compensation at a flat rate of 2,000,000 French francs (FRF) (see paragraph 39 below). 19. On 1 June 1993 the applicant appealed against the judgment of 3 March 1993 to the Paris Administrative Court of Appeal, requesting application of this new case-law to his own case. 20. In a judgment of 1 March 1994 the Administrative Court of Appeal decided, in accordance with the above-mentioned case-law of the Conseil d’Etat, that the State was liable for the damage sustained by the applicant as a result of the transfusions. It awarded Mr Leterme FRF 2,000,000. However, since he had accepted an offer of FRF 1,293,000 made to him in respect of the same damage by the Compensation Fund for Transfusion Patients and Haemophiliacs, the Administrative Court of Appeal decided that the balance of the compensation owed was FRF 707,000. It calculated interest on the basis of that sum with effect from 12 December 1989 (see paragraphs 33–36 below). 21. On 2 May 1994 the applicant appealed on points of law to the Conseil d’Etat. He complained in particular of the way the Administrative Court of Appeal had calculated the interest. 22. On 27 January 1995 Mr Leterme lodged an application (no. 26387/95) with the European Commission of Human Rights, complaining of the length of the compensation proceedings and relying on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report pursuant to Article 28 § 2 of the Convention noting that the parties had reached agreement on a friendly settlement of the case (see paragraph 43 below). 23. On 1 December 1995 the reporting judge at the Conseil d’Etat filed his report. On the same day the case was allocated to a government commissioner. 24. The case was listed for a hearing on 19 December 1995. 25. On 31 January 1996 the Conseil d’Etat gave a judgment quashing the Administrative Court of Appeal’s judgment of 1 March 1994 in so far as that court – notwithstanding the Conseil d’Etat’s case-law on the question (see paragraph 40 below) – had deducted from the sums the State was to pay Mr Leterme the amount of compensation to be paid by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed. It remitted the case to the Paris Administrative Court of Appeal. 26. The file was received by the Paris Administrative Court of Appeal on 27 February 1996. 27. In a letter of 13 March 1996 the senior registrar at the court informed the applicant that the case had been remitted to that court by the Conseil d’Etat and asked him to submit his observations within one month. The applicant’s observations were filed at the court registry on 25 March 1996. 28. On 26 September 1996 the court decided to proceed without waiting for observations from the Minister of Health, the Yvelines Health Insurance Office and the Compensation Fund for Transfusion Patients and Haemophiliacs. 29. On 28 October 1996 Mr Leterme’s lawyer wrote to the President of the Paris Administrative Court of Appeal to draw his attention to the length and protractedness of the proceedings and the urgency of the case, given the applicant’s state of health. No reply was forthcoming. 30. On 10 February 1997 the case was allocated to a reporting judge. 31. On 21 May 1997 the applicant lodged a further application with the Commission (no. 36317/97), registered on 3 June 1997, complaining that the proceedings were still pending before the Administrative Court of Appeal. 32. In separate proceedings the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs that had been set up by the Act of 31 December 1991 (see paragraph 38 below). 33. In a decision of 29 June 1992 the Fund awarded Mr Leterme compensation of FRF 1,293,000, of which FRF 969,750 were to be paid in three equal annual instalments and FRF 323,250 if and when Aids was diagnosed. From that sum FRF 100,000 already paid out by the haemophiliacs’ public and private solidarity funds was to be deducted. 34. On 6 October 1992 the applicant appealed to the Paris Court of Appeal. 35. On 26 February 1993 the Paris Court of Appeal gave a judgment in which it ruled that the Fund’s offer was satisfactory, formally noted that it undertook to pay the sum of FRF 969,750, subject to deduction of FRF 100,000, and specified that payment of the additional compensation would be conditional on the onset of Aids being diagnosed. 36. On 9 March 1993 the Compensation Fund paid the applicant FRF 874,706. 37. On 2 February 1994 the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the Court of Appeal’s judgment of 26 February 1993. 38. The Act of 31 December 1991 making miscellaneous social-welfare provisions set up special machinery for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. Section 47 provides: “I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below. II. ... III. Full compensation for the damage defined in subsection I shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board. ... IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives. ... Victims or their heirs shall communicate to the Fund all the information in their possession. Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy. ... V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection I within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage... ... VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund. VII. ... VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection V, or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal. IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim's rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons' liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence. The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection I. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court. X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat. XI. ... XII. The Compensation Fund's sources of revenue shall be specified in a subsequent Act. XIII. ... XIV. ...” 39. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat decided that “the State was wholly liable in respect of persons who were infected with the human immunodeficiency virus following transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985” (see paragraph 18 above). 40. In a series of landmark judgments of 24 March 1995 the Conseil d’Etat ruled that payment of the sum proposed by the Compensation Fund for Transfusion Patients and Haemophiliacs in the event of Aids being diagnosed was “a latent possibility subject to the onset of the disease” and that accordingly the Paris Administrative Court of Appeal had “made an error of law in deducting it from the sums it ordered the State to pay in compensation for the same damage”. 41. At the material time the Administrative Courts and Administrative Courts of Appeal Code contained, inter alia, the following provisions: “Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision. Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint. ...” “The President of the Administrative Court or of the Administrative Court of Appeal, or a judge delegated by one of them, may, where the existence of an obligation cannot seriously be contested, award an advance to a creditor who has filed an application on the merits in the court in question. He may, even of his own motion, make the payment of the advance subject to the lodging of a security.” “Immediately after the application instituting the proceedings has been registered by the registry, the president of the court or, in Paris, the president of the division to which the application has been transmitted, shall appoint a rapporteur. “Where one of the parties or the administrative department has been asked to submit observations and has not complied with the time-limit laid down pursuant to Articles R.142 and R.147 of this Code, the president of the court or division shall issue a formal notice to comply. In the event of force majeure, a final extension of time may be granted. If the formal notice to comply has no effect or if the final time-limit given is not complied with, the court shall give judgment.” Article R.151 “Where a final notice to comply relates to an administrative department of the State, it shall be sent to the authority with competence to represent the State; in other cases it shall be sent to the party or his representative if he has appointed one.” “A member of the Administrative Court or the Administrative Court of Appeal may be assigned by the competent court or by the latter's president to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter.” 42. Decree no. 93-906 of 12 July 1993 applies to all proceedings pending at the date of its publication. It lays down provisions for the implementation of section 47 of the Act of 31 December 1991 (see paragraph 38 above): “Part II Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991 In order to bring the action by subrogation provided for in subsection IX of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law. The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection I of section 47 of the aforementioned Act of 31 December 1991. Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings. Where the victim has accepted an offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court. The registry shall notify the parties of the information communicated by the Fund. The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened. ... The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree...” 43. On 27 January 1995 Mr Leterme lodged an application with the Commission, registered on 2 February 1995 under file no. 26387/95, in which he complained of the length of the compensation proceedings and relied on Article 6 § 1 of the Convention. On 4 July 1995 the Commission adopted a report in which it noted, pursuant to Article 28 of the Convention: “… On 26 April 1995 the applicant’s representative informed the Commission that the applicant was prepared to accept the sum of 200,000 (two hundred thousand) French francs for non-pecuniary damage, to which were to be added the costs and expenses he had incurred before the Commission, the whole to be paid within one month of the adoption of the Commission’s report, with interest in the event of delayed settlement. On 11 May 1995 he informed the Commission that the costs came to FRF 23,720. In a letter of 14 June 1995 the Agent of the Government informed the Commission that the Government were prepared to settle the case on the basis of a payment of FRF 223,720. On 4 July 1995 the Commission noted that the parties had reached agreement on the terms of a settlement. It also stated the opinion, having regard to Article 28 § 1 (b)of the Convention, that the parties had reached a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention. …” 44. The text of the applicant’s declaration that he accepted the friendly settlement, signed by him on 26 September 1995, reads as follows: “I acknowledge that the payment of these sums will constitute full and final compensation in respect of all the damage alleged in my application and will likewise cover all the lawyers’ fees and other costs I have incurred in this case. I therefore agree to withdraw from these proceedings and to waive the right to bring any further proceedings on this account against the French State in the French and international courts.”
| 1
|
train
|
001-118592
|
ENG
|
SVN
|
CHAMBER
| 2,013
|
CASE OF OROŽIM v. SLOVENIA
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
|
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
|
5. The applicant was born in 1939 and lives in Lesce. 6. In 1993 the company DOMPLAN Kranj instituted enforcement proceedings against the applicant before the Kranj Basic Court. The enforcement order was issued on 20 April 1993. 7. On 28 June 1994 the Convention came into force in respect of Slovenia. 8. On 28 July 1994 the case was reassigned to the Radovljica District Court. 9. On 23 December 1994 the enforcement order was served on the applicant. She lodged an objection. 10. On 13 September 1995 the enforcement order was annulled and the case was to be adjudicated in the framework of contentious proceedings. 11. On 3 October 1995 the creditor lodged another request for enforcement against the applicant. The enforcement order was issued on 23 October 1995. 12. On 26 January 1999 the Radovljica District Court issued a decision joining the two cases. 13. On 23 April 2001 the first-instance court held a hearing. 14. On 9 July 2001 the first-instance court rendered a judgment, upholding the creditor’s requests. The applicant appealed. 15. On 24 April 2002 the Ljubljana Higher Court rejected the appeal. 16. On 7 October 2002 the creditor lodged a request for enforcement based on the judgment of 9 July 2001. 17. On 14 October 2002 the Radovljica District Court issued an enforcement order. 18. On 30 October 2002 the applicant lodged an objection to the order and at the same time a request for postponement of the enforcement expressing willingness to reach a settlement. The applicant’s objection was sent to the creditor on 12 September 2003. The creditor responded on 5 March 2004. 19. On 25 May 2006 the first-instance court held a hearing and issued a decision regarding the objection against the enforcement order. The creditor appealed. 20. On 8 March 2007 the creditor requested the proceedings to be terminated following an out-of-court settlement reached between the parties. The decision on termination of proceedings was issued on 16 March 2007. 21. For relevant domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06, 25 November 2008).
| 1
|
train
|
001-83019
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,007
|
KNEIPP v. GERMANY
| 4
|
Inadmissible
|
Peer Lorenzen
|
The applicant, Ms Petra Kneipp, is a German national who was born in 1970 and lives in Reichelsheim in Germany. She was represented before the Court by Mr R. Eschstruth, a lawyer practising in Bad Wildungen. The applicant is the mother of a son born out of wedlock on 10 July 2000. The applicant, who had full parental authority, raised the child until the age of one. Subsequently, the child was placed in the care of foster parents. On 25 June 2002 the Büdingen District Court (Amtsgericht) withdrew the applicant’s parental authority over her son and transferred it to the District Youth Office. Following expert opinion, that court considered that the applicant was permanently unable adequately to raise her child as she suffered from borderline-syndrome or a comparably serious personality disorder. Since October 2002 the child lives with the foster parents Mr and Mrs L., who have special pedagogical training. The applicant, represented by counsel, lodged a request with the Büdingen District Court to be granted weekly access rights to her son. On 29 November 2002 the District Court, following an oral hearing, granted the applicant monthly visits of a duration of one hour and a half within the premises of a social institution and in the presence of a staff member of that institution. On the basis of the expert opinion submitted in the custody proceedings and of the result of the oral hearing, that court considered that the applicant was permanently unable to take care of the child and that the child was to remain permanently with the foster family. It was presently of eminent importance that the child formed bonds with the foster parents which came close to those existing between parents and their natural children. An extension of access rights would seriously disturb the formation of such bonds and would be contrary to the child’s best interests. On 20 December 2002 the applicant lodged a complaint with the Frankfurt Court of Appeal (Oberlandesgericht) with the aim of being granted more extensive access rights. She argued that the monthly access rights were not sufficient to maintain the parental relationship to her son. Conversely, the foster parents opposed further access rights on the grounds that the child was very much disturbed following contacts with the applicant and that they could not cope with further visiting contacts having regard to the problems which were likely to arise. The Court of Appeal held three hearings in the presence of the applicant, the foster parents and a representative of the social institution supervising the exercise of access rights. On 11 December 2003 the Court of Appeal ordered the preparation of an expert opinion as to which extent of access rights were in the child’s best interests. On 26 May 2004 the psychological experts submitted their expert opinion. Having examined the applicant and attended one meeting between the applicant and her son, they considered that the applicant’s psychological disorders had been confirmed by their examination. According to the experts, the applicant displayed erratic behaviour and lacked, in particular, the capability adequately to react on a social and emotional level. There was no evidence of an emotional bond between the applicant and her son. The child did not seem to feel at ease with his mother and was relieved to return to his foster parents. Having regard to the applicant’s psychological disorder, the experts considered that intensive contacts with his mother would jeopardise the child’s development. More frequent visiting contacts would disturb and destabilise the child. Conversely, it was presently important for the child to build a stable relationship to his foster parents. It followed that the present regulations on access rights best served the child’s interests. Having regard to the child’s further development, an extension of access rights could be envisaged in the future. On 21 December 2004 the Frankfurt Court of Appeal rejected the applicant’s appeal. Referring to the written expert opinion and the statement given by one of the experts during the oral hearing, the Court of Appeal considered that an extension of access rights was not completely excluded, but should not be envisaged before the child had reached the age of six to nine years. Following the expert recommendations, the Court of Appeal considered that the child was too young to cope with the applicant’s rapid mood swings, which also became apparent during the court hearing, and her inability adequately to respond to her social counterpart. This did not mean that the present access rights had to be further restricted. While the meetings between the applicant and the child could be described as harmonious during the allotted hour and a half, the child was content to say good-bye after the visits and looked forward to see his foster parents. As had been confirmed during the oral hearing, the applicant was much better able to concentrate during the first hour and a half. Under these circumstances, it was understandable that the visiting contacts took place in a harmonious way within the given time-frame, while further contacts would presently not be favourable to the child’s development. On 14 October 2005 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 26 October 2005. According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).
| 0
|
train
|
001-85583
|
ENG
|
HRV
|
CHAMBER
| 2,008
|
CASE OF PERIC v. CROATIA
| 3
|
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
|
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
4. The applicant was born in 1919 and lives in Opatija. 5. On 23 October 2002 the applicant brought a civil action in the Opatija Municipal Court (Općinski sud u Opatiji) against D. K. and J. K., seeking termination of a contract for lifelong maintenance (ugovor o doživotnom uzdržavanju). She enclosed a copy of the contract in question, drawn up on 3 August 1993, and its annex of 30 November 1999. The contract stipulated that the defendants were to care for the applicant until her death in order to acquire all her property post mortem. She also asked that two witnesses, E. P. and Š. T., be heard. The defendants submitted receipts for monthly payments for the applicant’s maintenance and asked that four witnesses be heard. 6. At the hearing held on 6 February 2003 the Municipal Court heard evidence from the parties and after that, in the presence of the applicant’s counsel, scheduled the next hearing for 17 March 2003. The applicant’s counsel fell ill and had to be hospitalised pending urgent surgery. On 11 March 2003 he sent a fax to the Municipal Court excusing himself from the hearing scheduled for 17 March and asked for an adjournment of the hearing. However, the Municipal Court proceeded with the hearing and heard two witnesses, Lj. M. and Š. M., the parents of one of the defendants. It also scheduled a further hearing for 23 April 2003 and ordered that two other witnesses, also called on behalf of the defendants, be heard. Neither the applicant nor her counsel were notified of the hearing. 7. The counsel did attend the hearing of 23 April 2003, which he had learned about by chance when at the Opatija Municipal Court on that day for other reasons. The Municipal Court heard two witnesses for the defendants, A. A. and I. P., as scheduled, but refused the proposal of the applicant’s counsel that five other witnesses be heard. The relevant parts of the transcript of the hearing read as follows: “Counsel for the plaintiff asks that the plaintiff’s neighbours M. C., S. R., V. G., N. I. and N. Z. be heard as witnesses about the circumstances of the applicant’s daily life and the care she has received from them in the past two years and in particular in the period of four months following her release from a hospital, when she was immobile. ... Counsel for the plaintiff withdraws his request that E. P. be called as a witness since, according to the plaintiff, that person is not able to attend a hearing at the court. The judge decides that evidence is not to be heard from Š. T., E. P., M. C., S. R., V. G., N. I. and N. Z. and no further evidence is to be presented.” The Municipal Court proceeded by closing the proceedings and pronouncing its judgment, dismissing the applicant’s claim. The relevant part of the judgment read as follows: “In view of the above, the court considers that the factual background has been fully established on the basis of the parties’ testimony and in particular in the contract for lifelong maintenance and its annex and the enclosed receipts for payment. For that reason the court declined to hear evidence from the witnesses called on behalf of the plaintiff, because these witnesses cannot tell the court anything of influence on its judgment, save for the fact that they, owing to the plaintiff’s age, have been increasingly assisting her on a daily basis. For precisely that reason the court is not relying on the evidence heard from the witnesses Lj. M., Š. M. and A. A.” 8. A subsequent appeal by the applicant was dismissed by the Rijeka County Court (Županijski sud u Rijeci) on 10 December 2003. 9. On 12 February 2004 the applicant lodged a constitutional complaint alleging, inter alia, that her right to a fair trial had been infringed, because the hearing of 17 March 2003 had been held in the absence of her counsel who had duly excused himself due to his urgent hospitalisation and that she had thus been prevented from questioning two witnesses. Furthermore, neither she nor her counsel had been notified of the hearing scheduled for 23 April 2003. Although her counsel did attend the hearing, which he had learned about by chance on the very same day, he had not been able to prepare himself to question the two further witnesses who had been heard at that hearing. Thus, she had been prevented from questioning any of the four witnesses, all of whom had been heard on behalf of the defendants. Finally, she complained that the Opatija Municipal Court had refused to hear any of her seven witnesses. On 21 June 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the complaint as ill-founded.
| 1
|
train
|
001-84563
|
ENG
|
SWE
|
ADMISSIBILITY
| 2,008
|
BARSOM AND VARLI v. SWEDEN
| 3
|
Inadmissible
|
Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre
|
The applicants, Mr Afram Barsom and Mr Levent Varli, are Swedish nationals, who were born in 1962 and 1974 respectively and live in Södertälje. They were represented before the Court by Mr R. Armholt, a lawyer practising in Stockholm. s, may be summarised as follows. Mr Barsom owns 31.25% and Mr Varli owns 43.75% of the active shares of a limited company, Restaurang Välfunnet Holding AB, which in turn owns a restaurant, Restaurang Välfunnet. Both applicants are involved in the daily running of the restaurant which is open for lunch, dinner and, during weekends, a discotheque. During 2004 the Tax Authority (Skatteverket) in Stockholm carried out a tax audit of the restaurant covering the period from June 2001 to July 2002. It found that the bookkeeping of the restaurant was severely deficient and that it had not kept the necessary evidence of the business’s expenses and sales. Based on certain calculations and statistics, the Tax Authority estimated that the restaurant had omitted to account for and declare all its sales in its bookkeeping and tax returns. Consequently, it found it necessary to make a discretionary assessment of the restaurant’s unrecorded sales, which it calculated at SEK 2,700,000 (approximately EUR 292,300) and to adjust its tax returns accordingly. On 8 December 2004, on the basis of the results from the tax audit, the Tax Authority decided to increase the applicants’ income from business for the tax assessment years 2002 and 2003 and to impose tax surcharges on them amounting, in total, for Mr Barsom to SEK 106,084 (approximately EUR 11,460) and for Mr Varli to SEK 144,512 (approximately EUR 15,610). As the applicants, together with a third person, were the main owners of the company which owned the restaurant, and as they were in charge of its daily running, the Tax Authority found that most of the unrecorded sales from the restaurant were to be considered as taxable income, in the form of salary, for the applicants and the third person. Moreover, since the applicants had failed to provide correct and complete information concerning their income, the Tax Authority considered it justified to impose tax surcharges on them and found no grounds on which to remit the surcharges. In January 2005 the applicants and the company appealed against the decisions to the County Administrative Court (länsrätten) of the County of Stockholm, disputing the Tax Authority’s findings and claiming that there were no grounds for changing their tax returns or imposing tax surcharges on them. In both their appeals and their supplementary submissions, the applicants stated that they wished to rely on the same grounds as the company had in its appeal and supplementary submissions to the court. The applicants and the company were represented by the same lawyer. On 14 March 2005 the Tax Authority made the obligatory reassessment of its decisions of 8 December 2004 but decided not to change them. Following this, it forwarded the appeals to the County Administrative Court. On 31 August 2005 the applicants requested the County Administrative Court to grant them legal aid to engage a lawyer to represent them. They referred to Article 6 § 3(c) of the Convention, claiming that since their cases concerned tax surcharges they had a right to free legal aid. The applicants stated that they lacked the means to pay for a lawyer since they had been obliged to pay the additional taxes and tax surcharges, as they had not been granted respite from the payment. Furthermore, they alleged that, as immigrants in Sweden, they did not have a complete command of Swedish or knowledge of the Swedish legal system and that their cases were complicated and involved significant amounts of money for them. On 8 September 2005 the County Administrative Court rejected the applicants’ request. It first noted that, according to the Legal Aid Act (Rättshjälpslagen, 1996:1619), the possibilities for a businessman to be granted legal aid in tax matters were very limited and it could only be granted if there were special reasons. It further observed that Article 6 § 3(c) of the Convention laid down that a person was entitled to free legal assistance only if he could not afford it himself and the interests of justice so required. It also noted that the domestic case-law indicated that there was no absolute right to legal aid in cases involving tax surcharges but that regard must be had to the amount at stake (the tax surcharges) and the complexity and nature of the case. Turning to the particular circumstances of the applicants’ cases, the court considered that the material invoked by the parties was relatively voluminous but that the legal questions at issue and, in relation to these, the ancillary questions concerning tax surcharges were not of such a character as to warrant a grant of legal aid, under either Swedish law or the Convention. The applicants appealed against the decisions to the Administrative Court of Appeal (kammarrätten) in Stockholm, repeating their claims and adding that, having regard to their financial situation, the tax surcharges amounted to substantial amounts for them. They added that they needed professional help to show that the Tax Authority’s audit report and decisions were flawed. On 18 October 2005 the Administrative Court of Appeal upheld the lower court’s decisions in full. The applicants lodged a further appeal to the Supreme Administrative Court (Regeringsrätten), which, on 5 April 2006, refused them leave to appeal. The tax proceedings are still pending before the national courts. The relevant rules concerning legal aid in Sweden are to be found in the Legal Aid Act (Rättshjälpslagen, 1996:1619 – hereinafter “the Act”). Section 7, paragraph 1, of the Act provides that legal aid may be granted if the person applying for it is in need of legal assistance and cannot obtain it by other means. Moreover, pursuant to section 8 of the Act, legal aid may only be granted if it is reasonable for the State to contribute to the costs, having regard to the nature and importance of the matter, the value of the contentious issue and other relevant circumstances. In any event, in matters concerning taxes and various fees for taxes, legal aid may be granted only when there are special reasons (section 11, paragraph 1, point 3). Furthermore, section 13, paragraph 1, of the Act stipulates that legal aid may not be granted to a person who is, or has been, a businessman where the contentious issue has arisen in connection with the business, unless there are special reasons relating to the nature and limited scope of the business, his or her financial and personal situation and other relevant circumstances. The Act defines a businessman as a natural person who runs a business of an economic nature that can be described as professional, or who has a deciding influence over a legal entity which runs such a business (section 13, paragraph 2). From the case-law of the national courts, it appears that when a case involves tax surcharges, Article 6 § 3(c) of the Convention is applicable, but that consideration must be given to the amount of the imposed tax surcharges as well as to the nature and character of the case. Moreover, only if there is a risk of particularly serious consequences or if complicated legal questions arise should free legal assistance be granted on the basis of the Convention in cases involving tax surcharges (Regeringsrättens Årsbok 2003 ref 56). Section 8 of the Administrative Court Procedure Act (Förvaltningsprocesslagen 1971:291) requires the administrative courts to ensure that the circumstances of each case are clarified to the extent that its character demands. Where necessary, the courts must give directions for the case-file to be supplemented with the requisite information.
| 0
|
train
|
001-98513
|
ENG
|
SVK
|
CHAMBER
| 2,010
|
CASE OF KOCIANOVÁ v. SLOVAKIA (No. 2)
| 4
|
Violation of Art. 6-1
|
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
4. The applicant was born in 1959 and lives in Viničné. 5. On 30 September 1997 she lodged an action against a limited liability company with the Bratislava Regional Court. She requested that the decisions, which had been adopted at the general meeting of the company members held on 1 July 1997, be declared void. 6. On 24 February 2004 the Constitutional Court found a violation of the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time, awarded her the equivalent of 985 euros (EUR) (at that time) in respect of non-pecuniary damage, ordered the Regional Court to proceed without further delay and to reimburse the applicant's costs. 7. On 2 September 2004 the civil proceedings were discontinued on the ground that the defendant company had been dissolved and wound up. In the absence of an appeal, the decision became final on 20 October 2004. 8. On 18 January 2006 the Constitutional Court rejected a fresh complaint lodged on 6 December 2004 as being manifestly ill-founded (as to the length of proceedings) and for non-exhaustion of domestic remedies (as to the alleged unfairness of the proceedings and interference with the applicant's property rights). The decision was served on the applicant's lawyer on 5 May 2006.
| 1
|
train
|
001-72819
|
ENG
|
POL
|
ADMISSIBILITY
| 2,006
|
STENZEL v. POLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Krzysztof Stenzel, is an Polish national who was born in 1964 and lives in Rumia, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. In 1990 the applicant married J.S. In 1991 their daughter P. was born. On an unspecified date in 1992 the applicant moved out of the family home. On 4 June 1992 the applicant applied to the Gdynia District Court (Sąd Rejonowy) for a residence order in respect of P.. Consequently, access proceedings were instituted. In June 1992 the applicant filed a petition for divorce with the Gdynia District Court. On 13 July 1992 the applicant requested the Gdynia District Court to make an interim order on access arrangements during the custody and access proceedings. On 27 July 1992 he also requested that J.S. be divested of parental rights. On 10 August 1992 the applicant was awarded interim access to the child by the Gdynia District Court. This allowed him to visit the child on Saturdays. J.S. refused to comply with that order. On 3 September 1992 the applicant applied for a court order prohibiting his wife from removing the child from Poland without his consent. On 4 November 1992 the court refused his request. On 30 December 1992 he requested the Gdynia District Court to change the access arrangements determined on 10 August 1992. On 8 June 1993 the Gdańsk Regional Court (Sąd Wojewódzki) dissolved the applicant’s marriage. The court awarded parental rights to both parents. It also limited the applicant in the exercise of his rights: it ordered that P.’s permanent residence be with her mother, but allowed the applicant to co-decide about the child’s education and health. The court did not specify access arrangements. On 10 December 1993 the applicant appealed against the divorce. On 9 December 1993 J.S. instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her. On 14 December 1993 the custody and access case was joined with the case instituted by the applicant’s wife. In January 1994 J.S. left Poland together with the child and settled in Germany. She did not inform the applicant about it and did not give their new address in Germany. In February 1994 the court gave J.S. three months in which to ensure compliance with the access arrangements provided for by the order of 10 August 1992. In February and in April 1994 the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of August 1992. On 5 April 1994 the Gdynia District Court issued a decision allowing the applicant to see P. every Tuesday for two hours at the Family Diagnostics Centre in Sopot in her mother’s presence. The mother appealed. On 6 September 1994 the Gdańsk Regional Court quashed this decision and remitted the case. In October 1994 J.S. married a German citizen, changed her name to J.V. and moved to Hamburg with P.. She did not inform the applicant of her whereabouts. The applicant subsequently established their address with the assistance of the Polish consulate in Hamburg. On 1 November 1994 the mother submitted that she would agree to report with the child at the Family Diagnostics Centre for an interview if she was granted appropriate protection against the applicant’s aggressive behaviour. Following the remittal, on 19 October 1995 the Gdynia District Court issued its decision. The court dismissed J.V.’s motion that the applicant be divested of his parental rights, and the applicant’s motion that the child reside permanently with him. The court found that J.V was living with her new husband, a German citizen, his parents and P. in a house with a garden. It had been established by German social assistance authorities that P. got on well with her new environment and called her stepfather “dad”. P was happy, healthy and well cared for in her mother’s house. In April 1995 J.V. gave birth to another child. Conversely, the applicant was unemployed, lost his right to social security assistance and lived in his parent’s house. He had been also paying maintenance for another child – a six-year old son. The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother, her step-father and half-sister. She had a sense of security and stability in her mother’s house and it had been in the child’s interest to stay there. The court did not find any reasons to divest J.V of her parental rights. The fact that she had left Poland without informing the applicant thereof had certainly been an abuse of her parental rights, but could not serve as a ground on which to divest her of her rights in respect of P.’s custody. As to the applicant, there were also no grounds on which to divest him of his parental rights. The applicant lodged an appeal with the Gdańsk Regional Court. He submitted that since 1992 the mother had made it impossible for him to have any contacts with P. On 11 April 1996 the Gdańsk Regional Court upheld this decision. The court repeated the arguments of the first-instance court. On 15 April 1996 the applicant instituted new proceedings in which he again requested the Gdynia District Court to establish access arrangements. On 23 April 1996 he lodged a further motion asking that full custody rights be restored to him. On 20 May 1997 the Gdynia District Court dismissed the applicant’s motion of 23 April 1996 and refused to award custody to him. The court found, on the basis of new evidence obtained meanwhile from the German authorities, that P. was well integrated in her new family in Hamburg. She had no distinct memory of her life with her father before the divorce. Moreover, she received affection from her mother, her mother’s husband and his family. The spouses cared well for her, providing P. with the best conditions for her upbringing. The court accepted J.V.’s testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour. The court concluded that removing P. from her mother’s custody, or even establishing a permanent access arrangement with the applicant, would harm the health and development of the child. On 19 June 1997 the applicant appealed against this decision. On 16 September 1997 the Gdańsk Regional Court upheld the contested decision and dismissed his appeal. It noted that having regard to the child’s well-being there were no circumstances which would justify a new decision on access arrangements. On 10 April 1998 the Ombudsman lodged a motion on the applicant’s behalf with the Gdynia District Court to determine access arrangements. It was argued that the question of the applicant’s access to P. had never been settled except for the interim order of 10 August 1992. The child’s mother had deprived the applicant and the child of any possibility of contact. The applicant was right in emphasising that J.V. had abused her parental rights by removing the child from Poland without the applicant’s or the court’s permission or knowledge. That had constituted a violation of the domestic regulations and relevant provisions of international law. The Ombudsman stressed that J.V.’s actions had been clearly unlawful. On 18 December 1998 the Gdynia District Court dismissed the applicant’s request for an interim access decision allowing him to send letters and presents to P. On 18 March 1999 the Gdynia District Court established a temporary access arrangement and allowed the applicant to call P. once a week and to send letters to her. The applicant’s further appeal against this access arrangement was dismissed by the decision of the Gdańsk Regional Court on 28 May 1999. On 6 July 2001 the Gdańsk District Court gave a decision on access arrangements. The child would visit the applicant once a year and he would be allowed to spend 14 days with her during the summer holidays. In addition the child would twice a month call the applicant. The applicant was allowed to send letters to his daughter. The child’s mother appealed against this decision On 14 June 2002 the Gdańsk Regional Court amended the first instance decision. The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant. P. had been brought up without any contacts with her father and she did not know him. Furthermore, as it appeared from her statements given in the proceedings before the German authorities, she had not been interested in having contact with the applicant. The court held that establishing a permanent access arrangement with the applicant could harm the child’s health and her development. In conclusion, the court allowed the applicant to send letters and gifts to his daughter. On 12 December 1994 and 26 January 1996 the Gdynia District Court imposed fines on J.V. in the amount of 10 PLN for failure to comply with its order of 10 August 1992. On an unknown later date J.V. paid the fine which had been imposed on her on 12 December 1994. The enforcement proceedings concerning the second fine were discontinued in July 1997. On 10 November 1999 the applicant again requested the court to impose a fine on J.V, alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P. On 16 November 2000 the Gdynia District Court dismissed his request. The court considered that the applicant had failed to contact the mother in order to obtain her telephone number, and that it was not established that the mother had sent back any applicant’s letters. On 27 March 2001, the Gdańsk Regional Court dismissed the applicant’s appeal against the first-instance decision. The court considered that it had not been confirmed that J.V. had obstructed the applicant’s attempts to contact his daughter. On 20 January 2000 the Reinbeck District Court in Germany decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother. It considered that the parents were in conflict and that, in any event, the applicant and the child lived far away from each other. The applicant had failed to appeal against this decision. The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides: Article 58 § 1 “In a decision on divorce, the court is competent to issue orders as to the care of the parties’ minor children (...). The court may grant custody right to one parent and limit the custody rights of the other one.” The Code of Civil Proceedings (Kodeks Postępowania Cywilnego) provides: Article 557 “The custody court can change its decision if the best interest of the person whom it concerns so require. “ According to the Supreme Court’s resolution, if a parent who has been obliged by a court decision to respect the other parents’ access rights refuses to comply therewith, access decisions are liable to the enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8): Article 1050 “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by the court.” If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Proceedings is applicable to the enforcement of this obligation. The Hague Convention on Civil Aspects of International Child Abduction of 1980 provides in so far as relevant. Article 21 “An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject. The central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
| 0
|
train
|
001-88930
|
ENG
|
RUS
|
CHAMBER
| 2,008
|
CASE OF SALATKHANOVY v. RUSSIA
| 3
|
No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities)
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The applicants were born in 1951 and 1938 respectively and live in the village of Dyshne-Vedeno, the Chechen Republic. 7. The applicants are husband and wife. The first applicant is a housewife and the second applicant is retired. They have nine children. In April 2000 their son Ayub Salatkhanov, born in 1984, was a student of the 9th grade at school. 8. On 17 April 2000 at about 1 p.m. Ayub Salatkhanov, with three of his friends, were walking along Lenina Street towards the village market. At the same time a convoy of Russian military vehicles was going down the street. The convoy included armoured personnel carriers (APCs), with soldiers sitting on the hulls. One of the servicemen raised his automatic rifle, took aim and shot at the applicants’ son. According to the applicants, it must have been a rifle fitted with a silencer because the other three boys did not hear the shot and did not understand where it had been aimed, until Ayub Salatkhanov, who took several more steps, fell on the ground in front of a house at 153 Lenina Street, where the head of the village administration lived. 9. Ayub Salatkhanov was bleeding from the mouth and the chest area. He was immediately put into a car to be taken to the district hospital, but died in the car on the way. He had been wounded in the heart. 10. At the relevant time there were a lot of passers-by in the street, who called the local police, the military commander’s office and the prosecutors office. Together they forced the convoy to stop and to go to the military commander’s office. There the servicemen of the Dyshne-Vedeno temporary district police station (VOVD) identified a warrant officer, Ch., who had allegedly shot at the boy. In the meantime he had climbed from the APC into the hull of a ZIL-130 military truck. According to the applicants, the servicemen of the VOVD searched the truck, and in a box containing canned meat found an AK 7.62 automatic rifle, with an ammunition magazine and a silencer. The rifle belonged to warrant officer Ch. 11. On 17 April 2000 the Vedeno District Prosecutor’s Office opened criminal investigation no. 14/36006 under Article 105 paragraph 1 of the Criminal Code into the murder of Ayub Salatkhanov. The applicants were informed accordingly by a letter of 27 April 2000, which also stated that “the person who committed the crime has been identified and detained” and that the case file would be transferred for further investigation to the military prosecutor of military unit no. 20102 based in Khankala (the main Russian military base in Chechnya). 12. On the same date an inspection of the crime scene and of the military vehicles was carried out and E., an eye-witness, was questioned. E. submitted that on 17 April 2000 he, together with Ayub Salatkhanov, S., A., Kh. and B. had been walking down Lenina Street and that a military convoy had been moving towards them. He had seen a serviceman in an APC who lifted a weapon fitted with a silencer, aimed it at Ayub Salatkhanov from a distance of ten meters and took two or three shots with it. 13. On 19 April 2000 S. was questioned. He made a statement similar to that of E. 14. On 19 and 20 April 2000 serviceman S-v. was questioned. He submitted that a magazine case with 25 cartridges of 7.62 mm calibre and a silencer had been found in Ch.’s backpack. 15. On 20 April 2000 the second applicant was granted victim status in the criminal proceedings. 16. On the same date the automatic rifle was seized from Ch. It was inspected together with other pieces of evidence. 17. On 21 April 2000 Ch. reported to the Vedeno District Prosecutor’s Office and admitted his guilt. He was questioned as a suspect on the same date. He was placed under the supervision of the commander of military unit no. 75143 as a measure of restraint. 18. Later Ch. retracted the statement he had made on 21 April 2000 and apparently submitted that the bullets had ricocheted. 19. On 3 May 2000 a forensic expert examination of the cartridges was completed. 20. On 3 June 2000, due to the lack of evidence required to bring charges, the investigating authorities suspended the investigation and lifted the measure of restraint in respect of Ch. 21. On 16 June 2000 the Prosecutor’s Office of the Chechen Republic replied to the applicants’ request for information that the criminal investigation into their son’s murder had been transferred to the military prosecutor’s office, which was responsible for investigating crimes committed by servicemen. It was also stated that all further questions should be referred to the military prosecutor’s office in Khankala. On transfer, the case was given the number 34/33/0179-00. 22. On 20 June 2000, upon completion of his secondment in Chechnya, Ch. arrived in the town of Pechora in the Pskov region according to the order of the commander of military unit no. 75143. 23. On 28 June 2000 the applicants were informed by a letter from the military prosecutor of military unit no. 20102 that on 2 June 2000 the criminal investigation in respect of warrant officers Ch. and S-v. of military unit no. 75143 had been discontinued under Article 5 paragraph 2 of the Code of Criminal Procedure [absence of corpus delicti]. The case file was forwarded for further investigation to the Prosecutor’s Office of the Chechen Republic. 24. On 29 June 2000 the supervising military prosecutor quashed the decision to suspend the investigation. 25. On 3 July 2000 the Vedeno district civil registration office issued a death certificate for Ayub Salatkhanov, aged 16, who had died on 17 April 2000 from a gunshot wound to the heart. 26. On 21 July and 26 October 2000 serviceman G. was questioned. He submitted that upon his arrival at the crime scene his comrade had told him that he had seen a serviceman climbing from the APC to the ZIL truck in front of it. When G. had approached the truck, he had seen a serviceman hiding in the corner. 27. On 22 July 2000 the second applicant and A. were questioned. A. made a statement similar to that of E. 28. On 23 July 2000 another inspection of the crime scene was carried out and E. was again questioned. T. was questioned on the same date and submitted that a spent yellow cartridge case had been found at the crime scene. It had been handed over to police officers. On the same date an investigative experiment was conducted. 29. On 24 July 2000 Yu. was questioned. He submitted that after the convoy had stopped he had seen a serviceman hiding inside a car. The serviceman had a red face, blue eyes and was of medium height. 30. T-v., apparently of the Vedeno District military commander’s office, who was questioned on the same date, stated that on 17 April 2000 at around 2 p.m. a patrol had come running to headquarters and reported that a military convoy had been stopped in Lenina Street because a serviceman had shot a schoolboy. When T-v. arrived at the crime scene, he had been told that a serviceman had climbed from an APC to a ZIL vehicle where other servicemen had tried to hide him. 31. Serviceman I., questioned on the same date, submitted that on 17 April 2000 his fellow servicemen had told him that a serviceman from a convoy moving through Dyshne-Vedeno had killed a boy. When he had arrived at the crime scene, eye-witnesses indicated an APC from which, according to them, shots had been fired. A serviceman had been acting agitatedly around the APC. He had appeared to be nervous and had been holding an AKSM 7.62 automatic rifle with no silencer. He had then gone to sit in the ZIL-131 truck. In the course of the search of the ZIL truck officers of the Vedeno District military commander’s office had found a magazine of cartridges and a silencer. 32. Ts., questioned on 24 July and 26 October 2000, submitted that he had been present at the examination of Ayub Salatkhanov’s body and had seen bullet wounds. A spent 7.62 cartridge case had been found by T. and immediately handed over to the police officer who had conducted the inspection. 33. On 26 July 2000 an investigative experiment concerning the audibility of shots fired from an AKSM automatic rifle with a silencer was conducted. 34. On 31 July, 16 and 19 October 2000 expert Sh. was questioned. 35. On 3 August 2000 a forensic examination of Ayub Salatkhanov’s clothes was completed. 36. On 5 August 2000 servicemen P., K. and P-o were questioned. They submitted that after two AKSM automatic rifles with two PBS-1 silencers, including the one seized from Ch., had been returned to the military unit, they had been used according to their purpose. They had not been repaired and no parts of them had been replaced either. 37. On 8 August 2000 Sh-n, a serviceman that had formed a part of the military convoy, submitted that when the convoy had been moving he had seen a boy lying on the ground in the yard of a house. When the convoy had stopped, he had seen a serviceman sitting on the right side of the ZIL-131 truck removing a silencer from his automatic rifle. When the serviceman had left the car, there had been no silencer on his automatic rifle. 38. On 16 August 2000 a forensic expert examination was completed. 39. On 9 September 2000 a ballistic expert examination was completed. 40. On 27 September 2000 serviceman O. was questioned. He submitted that in the convoy it was only special forces servicemen who had had PBS-1 silencers. 41. On 11 October 2000 a forensic examination of Ayub Salatkhanov’s body was completed. 42. On 15 November 2000 Ch. was charged with the offence and a decision to place him in custody was taken. However, since he was no longer in the Chechen Republic, he was placed on the wanted list. The investigation was suspended on the same date on account of Ch.’s whereabouts being unknown. 43. On 25 November 2000 a forensic expert’s examination was completed. 44. On 11 March 2001 the military prosecutor of military unit no. 20102 informed the applicants that the investigation had identified the suspect – Ch., warrant officer of military unit no. 75143. However, the military unit had been relocated out of Chechnya without the military prosecutor’s knowledge. Warrant officer Ch. had absconded and on 15 November 2000 had been placed on the wanted list. 45. By a letter dated 27 July 2001 (received by the applicant in December 2001) the military prosecutor of military unit no. 20102 informed the applicants that the serviceman responsible for the murder of their son had been identified. He had been discharged from military service and had absconded. He had been searched for by the officers of the Ostrovskiy district police of the Pskov Region, where his residence was located. The letter further stated that on 15 November 2000 the investigation had been suspended during the search. On 25 July 2001 the investigation was resumed, and a request for a search to be carried out was forwarded to the authorities in Ukraine, where the suspect’s parents resided. 46. On 8 August 2001 the Chief Military Prosecutor’s Office informed the applicants that the investigation into their son’s murder had been reopened. The person suspected of the crime had absconded and had been placed on the federal wanted list. 47. On 8 October 2001 the Prosecutor’s Office of the North Caucasia Military Circuit informed the applicants that on 2 April 2001 the decision of 15 August 2000 to suspend the proceedings had been quashed and the case file had been forwarded for further investigation to the military prosecutor of military unit no. 20102. The investigation was pending, and the applicants would be informed of the results. 48. After a number of stops and starts, the investigation was again resumed on 17 January 2005. Ch.’s whereabouts were established and it was also found that he had changed his name to M. He was subsequently arrested, and on 18 April 2005 the case was committed for trial to the Grozny Garrison Military Court. 49. On 7 July 2006 the Grozny Garrison Military Court dismissed Ch.’s (M.’s) contradictory submissions that, firstly, it had not been him who had shot at Ayub Salatkhanov and, secondly, that he had accidentally pulled the trigger when the vehicle he had been in had gone over a bump in the road. The court found that Ch. (M.) had aimed at Ayub Salatkhanov’s chest, found him guilty of murder and sentenced him to ten years’ imprisonment. Ch. (M.) appealed. 50. On 23 November 2006 the North Caucasia District Military Court upheld the judgment on appeal. 51. In 2003 the second applicant brought a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the murder of his son by a serviceman. 52. On 22 July 2003 the Basmanniy District Court of Moscow dismissed the claim. The court held, in particular: “As follows from the evidence in the case, the fact that [the applicant] was caused physical and moral suffering arose as a result of the fulfilment of duties by a serviceman of military unit no. 75143 [Ch.] ... It is precisely [this military unit] which may be liable if [its serviceman] caused non-pecuniary damage when fulfilling [his] duties.” 53. On 12 February 2004 the Moscow City Court upheld the judgment on appeal. 54. Subsequently, within the framework of the criminal proceedings against Ch. (M.), the second applicant brought a civil claim for compensation for non-pecuniary damage in the amount of 10,100,000 Russian roubles (RUR) before the criminal case against Ch. was sent for trial. 55. In the hearing of 29 June 2006 counsel for the second applicant withdrew the civil claim. He explained that the second applicant intended to file a claim for damages against the military unit where Ch. (M.) had served within the framework of civil proceedings. The court accepted the withdrawal of the claim and specifically stated that it was open to the second applicant to file it within the framework of civil proceedings. 56. According to the Government, the second applicant did not file any civil claims before the Grozny Garrison Military Court. 57. Despite specific requests made by the Court on two occasions, the Government did not submit a copy of the entire investigation file concerning the murder of Ayub Salatkhanov. However, after the application had been declared admissible they submitted an update on the progress of the investigation, copies of judicial decisions and minutes of the hearings, which contained a detailed description of the investigative actions and witnesses’ statements. The Government stated that the documents submitted contained detailed information concerning the conduct of the investigation and the trial and, should the Court require any additional documents, it should specifically request them. 58. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP). 59. Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions. 60. Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. 61. Article 151 of the Civil Code of the Russian Federation, Part II, in force since 1 March 1996, provides for a right to claim non-pecuniary damage. Article 1100 of the Civil Code provides grounds for compensation of non-pecuniary damage.
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train
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001-57551
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ENG
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GBR
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CHAMBER
| 1,987
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CASE OF O. v. THE UNITED KINGDOM
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Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved
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C. Russo;N. Valticos
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8. At the time of his application to the Commission, the applicant, an Irish national born in 1943, lived in England. He was married in 1967 but was divorced from his wife on 20 October 1981. During their marriage they had seven children, A, B, C, D, E, F and G, born in 1968, 1970, 1971, 1973, 1975, 1977 and 1978 respectively. 9. In 1973, because of accommodation problems, the couple on three occasions put their then children into the voluntary care (see paragraphs 29-31 below) of the local authority ("the Authority"). On 11 January 1974, the local juvenile court made care orders (see paragraphs 21-23 and 25 below) in respect of A, B, C and D. As the applicant had obtained more satisfactory accommodation, these orders were discharged at his request by the juvenile court in June 1975 and replaced by supervision orders (see paragraphs 24 and 27 below). 10. Following concern as to the children’s welfare, brought to a head when the applicant assaulted A, the Authority obtained from the juvenile court on 2 July 1976 care orders in respect of A, B, C, D and E; the latter are hereinafter referred to as "the children", F and G not being the subject of the present proceedings. On 9 September 1976, the Crown Court dismissed the applicant’s appeal against this decision; he did not lodge a further appeal (see paragraph 28 below). 11. The children lived at first in a children’s home. In December 1976, A and B were placed with foster parents near the town where the applicant lived, and C with other foster parents in the same town. In February 1978, D and E, who had remained in the meantime at the children’s home, were placed with foster parents at an address which was not given to the applicant by the Authority. It so decided following a case review held on 17 October 1977 and attended by social workers responsible for the children; the applicant was not informed of the review and was not invited to attend it. 12. Until June or July 1978, the applicant and his wife continued to visit the children - or those whose whereabouts they knew - at least once a week, although the foster parents complained that the visits upset the children. The social worker responsible then proposed that future visits take place at the social services building in the town where the applicant lived. The parents saw there all five children, for about an hour, on 4 July 1978 and A, B and C, for about 45 minutes, on 24 April 1979. 13. An application by the parents, who had taken legal advice with a view to establishing their right to access to the children, to revoke the care orders was rejected on 13 June 1979 by the juvenile court; the proceedings could not lead to a review of the isolated question of access, since the juvenile court, pursuant to the statutory provisions, had to determine whether or not it was appropriate to discharge the care orders as a whole (see paragraphs 27 and 42 below). No appeal was lodged against this decision (see paragraph 28 below). 14. On 14 June 1979, the applicant’s solicitors wrote to the Authority’s Social Services Department seeking regular access for the parents to the children. In an interim reply of 20 June, the Department indicated that it would be holding a case conference in the near future, but that its policy concerning the children was unlikely to change significantly. A fuller reply, dated 10 July, was in the following terms: "Further to my letter of the 20th June, a case conference has now been held to determine our future policy in respect of the five ... children in the care of this Authority. As you will no doubt appreciate, our paramount consideration must be the best interests of the children. In coming to a decision the case conference was very aware of Section 59 of the Children Act 1975 which [provides]: ‘In reaching any decision relating to a child in their care, a Local Authority should give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.’ As a result of the unsuccessful application by the [applicant and his wife] to have the Care Orders on their children in the care of the [Authority] discharged, the real desire of all these children to remain with their foster parents was emphasised. The case conference therefore decided that the best interests of the children would be served by them remaining on a long term basis with their present foster parents. The visits which the [applicant and his wife] have made to their children in the past have proved quite unsettling for the children and their foster parents. In view of the fact that we see these children remaining in long term care emphasis should be placed on helping the children feel secure and happy in their foster homes. I therefore have to inform you that in the interests of the children there should be no contact with their natural parents. I do appreciate that this decision will be a matter of deep disappointment to the [applicant and his wife]. My social worker ... will be in touch with them in the near future and will be pleased to discuss with [them] in more detail the reasons behind this decision." The applicant asserts that he was not invited to attend the case conference referred to in this letter or consulted beforehand about the decision to terminate access. 15. On 25 February 1980, the parents, in an attempt to raise the question of their access to the children, issued an originating summons as a result of which the latter became wards of court (see paragraphs 36-38 and 43 below). On 2 April, the Authority applied to the High Court for the wardship to be lifted (see paragraph 38 below); the parents contended in reply that while the Authority should continue to have care of the children, they should have access to them. 16. At a hearing held on 6 October 1980, the High Court examined the questions whether it had jurisdiction to consider the parents’ application for access in the context of wardship proceedings and whether the wardship should continue. The judge stated: "... this Court does not sit as a Court of Appeal in relation to decisions of the Local Authority, and can only interfere with a decision of the Local Authority on the basis of the principles governing the interference with statutory discretions given to statutory bodies; that is, this Court can only interfere if it is satisfied that the Local Authority has taken into account matters which it should not have taken into account, or has not taken into account matters which it should have taken into account, or it can interfere if it comes to the conclusion that the Local Authority has come to a decision which no reasonable Local Authority could have come to. It can also interfere, of course, if it were satisfied that the Local Authority had been acting in bad faith." Given this limited jurisdiction, he held that the Authority’s decision to refuse further access was not impeachable on any of the above grounds and therefore must stand. He accordingly terminated the wardship order. The applicant was advised that although an appeal from this decision would have been possible, it would have had no prospects of success in the light of the relevant case-law (see paragraphs 42-43 below). 17. On 25 August 1981, an adoption order was made in respect of D and E, the judge having dispensed with the consent of the applicant and his wife (see paragraph 46 below). The 1976 care orders in respect of these two children thereupon terminated. The applicant left the United Kingdom in late 1984. It appears that he was not then regularly visiting A and C (the Authority’s embargo on access never having been lifted) and that they did not wish him to do so. It also appears that he was not then regularly visiting B, although he had re-established contact with him at the latter’s request. B and C are still subject to the 1976 care orders; that in respect of A terminated in 1986, on her attaining the age of 18. 18. 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. 19. 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. 20. 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 36-38 below), or to institute care proceedings under section 1 of the 1969 Act (see paragraphs 21-23 below), or to apply to a justice or a magistrates’ court for an interim order under section 28(6) (see paragraph 26 below); if an application of the last kind is refused, the child’s immediate release "may be ordered". 21. 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. 22. 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. 23. 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 20 above). 24. 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. 25. 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. 26. 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 20 above). The powers and duties of the local authority under an interim order are the same as under a full care order (see paragraph 25 above). 27. 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. 28. 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. 29. 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. 30. 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. 31. 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 32 below) or apply to make the child a ward of court (see paragraphs 36-38 below). 32. 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. 33. 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)]). 34. 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). 35. 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. 36. 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. 37. 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. 38. 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. 39. 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. 40. 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 42 below); however, this would be a rare occurrence, the general rule being that the documents are privileged and not open to inspection. 41. 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. 42. The statutory remedies described in paragraphs 27-28 and 33-35 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)). 43. 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 42 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. 44. 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. 45. 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. 46. 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). 47. 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.
| 1
|
train
|
001-89460
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,008
|
DJAVAKHADZE v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
The applicant, Ms Olga Viktorovna Djavakhadze, is a Russian national who was born in 1962 and lives in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights In 1989 a housing construction cooperative, Harmony, (“the cooperative”) was set up within the Bolshoi Theatre in Moscow. Its aim was to construct a new residential building with a view to improving the staff's housing conditions. The Moscow City Council had provided the cooperative with a plot of land in Moscow for construction. Under a finance contract of 1 December 1993, the construction was to be funded firstly by contributions from members of the cooperative (“share allocations”) and secondly by a private company, Stroyservice-1, which would receive in exchange flats, other premises of a total surface area of 2,800 sq.m, parking and a building of a total surface area of 800 sq.m on this plot of land. The share allocation to be paid by the members of the cooperative was determined in accordance with the surface area of the flats that they would receive, which, taken together with the investment share that Stroyservice-1 would allocate to each of them ought to correspond to the balance cost of their flats. This finance plan, and the division of residential area and office premises between the cooperative and Stroyservice-1, were endorsed on 5 May 1995 by Moscow City Council. The applicant had joined the cooperative on 6 January 1992 on a decision by a general meeting of members. On 27 January 1992 she signed an employment contract with the cooperative's administration and began working as its chief accountant. Under Section 9 of a supplementary agreement to this contract, signed on 1 September 1993, the chief accountant, who was at the same time a member of the cooperative, would receive a three-roomed flat which she would choose herself at the close of the construction work, prior to the general drawing of lots. On 31 August 1993 the applicant also became a member of the cooperative's governing body. By decisions of the general meeting of members of 21 September 1990 and 16 May 1994, the amount of the share allocation for three-roomed flats was set at 1,425,500 Russian roubles (RUB) (24,000 + 1,500 + 1,000,000 + 400,000). In 1992-94 the applicant paid the cooperative her joining fee and the share allocation for a three-roomed flat. In total she paid RUB 1,424,770. On completion of the work, a general drawing of lots was held on 10 and 15 February 1995 for the purpose of attributing flats to the members of the cooperative. As envisaged in her contract, the applicant was entitled to choose her flat before this draw was made. On 8 February 1995 she chose flat no. 32. According to the minutes of the governing board's meeting of 8 February 1995, it was noted that the applicant and certain other individuals, referred to as contractual members, were performing their duties within the cooperative appropriately and that, in consequence, their choice of flats should be endorsed. The applicant's choice was thus approved unanimously. The general meeting of members on 15 February 1995 confirmed that flat no. 32 had been attributed to the applicant, and this fact was entered by hand in her membership book and signed by the director of the cooperative. The cooperative's management sent the documents confirming the distribution of flats to Moscow City Council to obtain property title certificates. From 29 September 1995 the members of the cooperative, including the applicant, began moving into their flats. By Act No. 2 of 3 October 1995 and a project completion certificate of 10 October 1995, signed by the cooperative and the Stroyservice-1 company, it was recognised that each party had fulfilled the financial commitments entered into, and that out of one hundred and sixteen flats, whose construction was jointly financed by Stroyservice-1 and the cooperative, the latter received seventy-three flats, including flat no. 32. By a decision of 28 December 1995 the governing body decided to appoint an acting chief accountant for the duration of the applicant's sick leave. On an unspecified date in 1996 the applicant was dismissed from this post. According to the applicant, having paid the cooperative the full amount of her share allocation, in accordance with Article 218 of the Civil Code of the Russian Federation, she became the owner of her flat. However, the cooperative refused to issue her with a certificate confirming that she had paid her share allocation in full. The applicant brought legal proceedings against the cooperative. On 2 March 1996 the members of the cooperative held a general meeting and, in view of their dissatisfaction with the governing board in place, elected a new management team, headed by a new director. As the cooperative's documents and other symbols remained in the hands of the members of the outgoing governing board, the new director ordered a new official stamp for the cooperative. On 28 May 1996 the Tverskoy Court of Moscow (Тверской межмуниципальный народный суд г. Москвы), having examined the documents submitted by the applicant, considered it proven that the applicant had fully honoured her financial obligations as a member of the cooperative, and ordered the latter to issue her with a certificate confirming that her share allocation had been paid in full. This judgment was not appealed against and became final. In compliance with this judgment, on 11 June 1996 the applicant was issued with the certificate in question, which bore the cooperative's new stamp. According to this document, on 29 June 1994 the applicant had paid her share allocation in full, namely RUB 1,424,770, for a three-roomed flat no. 32, the balance value of which was RUB 157,145,981, the difference between the two amounts having been financed in accordance with the finance plan of 5 May 1995 (that is by the investor, Stroyservice-1). On the basis of this document, on 14 June 1996 the applicant had her property title to flat no. 32 registered with the municipal housing department at the Moscow City Council. It appears from the other decisions issued in this case that, by a judgment of 22 July 1997, the Tverskoy Court of Moscow declared the cooperative's new stamp null and void. The grounds for this decision remain unknown. On 29 August 1996 the general meeting decided to exclude the applicant from the cooperative on the ground that she had not performed her duties as an accountant appropriately. Noting also that the applicant had not paid the first instalment of her share allocation on time and that she had not paid the subsequent instalment of 29 June 1994, the meeting decided, in addition to her dismissal, to deprive her of her property right to the cooperative's flat. The applicant challenged her exclusion from the cooperative before the domestic courts. The cooperative filed a counter-claim requesting to have it established that she had never been a member. In support of this request, the cooperative submitted that the minutes of the general meeting of 6 January 1992, confirming the applicant's membership, contained inaccurate information On 5 April 1999 the Tverskoy Court of Moscow overturned the decision to exclude the applicant from the cooperative and dismissed the latter's counter-claim. As regards the counter-claim the court noted that the participants at this general meeting had confirmed before it that the applicant had indeed been admitted as a member on that date. In addition, on 29 June 1994 the general meeting, the only body with authority to decide on membership, re-examined the list of members in the light of each individual's compliance with his or her financial obligations, and confirmed the applicant's membership. It further found that, if the applicant had not been a member, she would not have received on 29 June 1994 the membership book that the cooperative issued solely to its members. On the basis of the receipts, the membership book and other information obtained from the bank, the court established that the applicant had paid all of the instalments of her share allocation, for a total amount of RUB 1,424,770, but that she had not paid RUB 1,500, a financial contribution decided on at the general meeting of 21 September 1990, and RUB 200, a sum imposed for various administrative costs. The court considered that a failure to pay the “extremely modest” sum of RUB 1,700 could not justify a member's exclusion from the cooperative, especially as the latter had submitted no evidence of a proposition to the applicant to pay this sum and her refusal to pay. The decision to exclude the applicant was therefore held to be null and void and the court ordered that she be reinstated as a member. In 1997 the cooperative's management brought an action before the Tverskoy Court of Moscow in order to have the applicant's ownership certificate to the flat no. 32 of 14 June 1996 declared illegal. In particular, the cooperative alleged that on 6 January 1992 the applicant's membership had been approved by the general meeting subject to the condition that she performed, on a contractual basis, the duties of chief accountant. It was in exchange for employment as an accountant that the cooperative had undertaken to allocate her a three-roomed flat. Abusing this position, the applicant had unlawfully fabricated a document confirming that her share allocation had been paid in full and, with the help of this document, she had obtained the ownership certificate of 14 June 1996. Called to the court as a third party, the municipal housing department of the Moscow City Council maintained that the disputed ownership certificate was legal. By a judgment of 12 October 2000, the court found that the applicant had joined the cooperative as a contractual member and that on 27 January 1992 she had signed a mutual cooperation contract with the management. Her obligation to perform the duties of chief accountant in exchange for her membership status had been reiterated in the supplementary agreement of 1 September 1993. The court established that in accordance with the cooperative's statute, which made a distinction between ordinary members and contractual members, the cooperative's management would have been entitled to refuse to allocate a flat to a contractual member if he or she failed to perform the duties set out in the relevant employment contract. In consequence, the court dismissed the applicant's arguments that she had fulfilled the contract signed with the cooperative and therefore had been already provided with the disputed flat. It established that failure to comply with the contract's clauses had direct repercussions on her status as a member and on her rights and obligations with regard to the flat. Having referred to various audit reports, the opinion of the supervisory committee and the court-appointed expert's report of 18 February 2000, the court found that the applicant had not fulfilled her contractual obligations towards the cooperative in an appropriate manner. The court further found that the decision of the general meeting of 15 February 1995 merely endorsed the results of the draw and in no way proved that the applicant had received flat no. 32 independently of her employment obligations within the cooperative. The governing board's meeting of 8 February 1995 made only a preliminary allocation of the flats on a condition of fulfilment by the cooperative's members of their obligations, as the building in question had not been yet put into service, therefore this decision could not be regarded as providing the applicant with a flat. Furthermore, in addition to the RUB 1,700 non-payment which had been established by the judgment of 5 April 1999, the applicant had failed to pay to the cooperative the book value of the apartment, equivalent to RUB 157,145,981. The court dismissed the applicant's arguments that by a decision of the general meeting the share allocation for a three-roomed flat had been set at RUB 1,424,770, that she had paid this amount in full as confirmed by the same judgment of 5 April 1999, and that the remaining amount had been funded by Stroyservice-1 in accordance with the funding plan of 5 May 1995. It noted that the applicant was not included in the list of the cooperative's members whose shares had been compensated by the above company. The court also mentioned that the cooperative's stamp on the certificate of 14 June 1996 confirming the applicant's title to flat no. 32 and on the certificate of 11 June 1996 confirming that the applicant had paid her allocation in full had been declared null and void. The applicant's argument that the certificates were issued on the basis of the court judgment of 28 May 1996 was dismissed on the ground that this judgment did not include the amount of the allocation paid by the applicant. The ownership certificate of 14 June 1996 was thus declared null and void. Both the applicant and her lawyer had participated in the hearing. On 30 January 2001 the Moscow City Court, having heard the applicant's lawyer, dismissed the applicant's appeal, having mentioned that the applicant had not been compensated by the investor and that the cooperative's stamp on the certificates of 14 June 1996 and 11 June 1996 had been declared null and void. On 26 December 2002 and 22 March 2005 judges of the Supreme Court of the Russian Federation rejected the applicant's requests for a supervisory review. On 3 March 2003 four members of the cooperative lodged a complaint with the department of the Interior of the Moscow District, alleging organised crime within the cooperative's management. They complained that at various points between 1996 and 2002 the cooperative's managers, in criminal agreement with Stroyservice-1, had led twenty-three members of the cooperative to believe that the latter had a debt towards Stroyservice-1, which would no longer pay the individual investment shares for the members of the cooperative. These members were thus obliged to pay considerable sums in cash, with no receipts, as supplementary contributions. The complainants noted in this respect that criminal proceedings had been brought against Stroyservice-1 but that the case had been discontinued on 22 June 1998. In addition, in order to acquire the flats for itself with a view to their resale, the cooperative had brought unfounded judicial proceedings against various members of the cooperative. Having paid their share allocations as defined by the general meeting in full, those members found themselves accused of failing to pay the sums necessary to cover the cooperative's non-existent debt to Stroyservice-1. In other cases, members were accused of failing to pay the individual investment shares which, under the terms of the construction finance plan, Stroyservice-1 had undertaken to pay. Finally, the claimants pointed out that the director of the cooperative had not convened a general meeting since August 1996. On 14 April 2003 the municipal housing department of the Moscow City Council wrote to the Moscow City Prosecutor, setting out the facts as these had been brought to its attention following a dozen sets of proceedings opposing the cooperative and its members, in which it had been called upon to take part as a defendant or a third party. According to the City Council, the cooperative director whose three-year term of office had expired in 1999 had falsified documents attesting untrue facts and used them to the detriment of the members of the cooperative. According to those documents, Stroyservice-1 had invested more money than planned in the construction work and the cooperative was consequently indebted towards it. As a result, the members of the cooperative had to pay this debt, which amounted to several tens of thousands of American dollars. In reality, this additional investment had never existed. The department submitted that, as victims of this abuse of power, the members of the cooperative had been deprived of their possessions and that multiple proceedings were being brought before the courts in this connection. It requested the prosecutor's office to examine the question of criminal proceedings against the director of the cooperative. No information had been provided by the parties with respect to the further course of the investigation. Article 118 of the Housing Code of the RSFSR, which was in force at the material time, provides that that a person who has become a member of a cooperative on the basis of a decision by a general meeting of that cooperative is to receive a flat with a surface area calculated in relation to the number of persons in his or her family and in relation to the amount of his or her share allocation. In accordance with Article 8 § 2 of the Civil Code of the Russian Federation, title to a property, public registration of which is required by law, takes effect at the time that title is registered. Under Article 218 § 4 of the same Code, a member of a housing construction cooperative may acquire title to the property in question after paying in full the share allocation for a flat.
| 0
|
train
|
001-83573
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF HAZIRCI AND OTHERS v. TURKEY
| 4
|
Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect)
| null |
11. On the same day, the Üsküdar Forensic Medicine Department (hereinafter: “FM department”), relying on the aforementioned medical reports, concluded that the injuries rendered the applicant unfit for work for a week.
| 1
|
train
|
001-70905
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,005
|
EDER v. GERMANY
| 4
|
Inadmissible
|
Mark Villiger
|
The applicant, Mr Josef Eder, is a German national who was born in 1938 and lives in Regen. The applicant was the owner of several plots of land near Regen. The Regen Municipality planned the construction of week-end houses, sport and play grounds and a restaurant on this site which was composed of marshes and wetland. On 18 April 1974 the Lower Bavarian Planning Authority decided that the intended development did not comply with the objectives of spatial planning. One of the main grounds for that refusal was that the site was located in a nature preserve. There was also the danger of dissection of landscape by secondary residences and of an undesirable effect on the promotion of tourism. On 19 September 1980 and 27 April 1981, when purchasing further plots of land (parcels nos. 334/6, 339, 340, 345/4 and 361/4) located in this area, the applicant was informed by the Regen Regional Administrative Authority (Landratsamt) that the land in question was part of a natural habitat intended to be designated as a nature conservation area. On 5 August 1981 the Regen Municipality published a development plan despite the objections of the Lower Bavarian Planning Authority. By decisions of 24 April, 14 May and 25 May 1982 the Regen Regional Administrative Authority prohibited the applicant from altering the natural condition of the land (parcels nos. 339, 340 and 361/4), ordered him to refill the drainage ditches and informed him that the decisions would be implemented by the administrative authority at his own expense if he failed to carry out the expected activity within the time-limits fixed at one week and one month respectively. On 24 and 25 May 1982 the Regen Regional Administrative Authority proceeded to refill the ditches on one of the land parcels concerned (no. 339). After a suspension for several years of appeal proceedings brought by the applicant, the Regensburg Administrative Court (Bayerisches Verwaltungsgericht), by a judgment of 4 June 2003, found that the limitation periods were too short and that the implementation of the decisions was unlawful. On 29 April 1982 the Regen Regional Administrative Authority refused to grant the applicant a planning permission for the development of the land. This decision became final. By a decree of 7 June 1983 the Government of Lower Bavaria designated the area, including in part the applicant’s land (parcels nos. 334/6, 339, 340, 345/4 and 361/4), as a nature conservation area. On 10 April 1984 the Regen Regional Administrative Authority transferred, as requested by the applicant, his real property situated in this area to the State of Bavaria fixing the compensation to be awarded to him at 115,513 Deutschmarks (DEM). It refused to purchase parcel number 361/4 on the ground that the use for agriculture on this respective plot of land remained unaffected by the Nature Conservation Decree of 7 June 1983. It also refused to purchase the other remaining plots of the applicant’s land. By a judgment of 28 April 1986 the Regensburg Administrative Court dismissed the appeals lodged by the applicant and the State of Bavaria against this decision. The judgment became final, the parties having withdrawn their respective appeals. In 1988 the applicant sold the land not included in the area covered by the nature conservation decree (parcels nos. 332/3, 337 and 335) as pasture respectively forest land. On 27 November 1992 the Regen Administrative Authority supplemented its decision of 10 April 1984, taking into account changes brought about in respect of the applicant’s land, such as the construction of a new road. No appeal was filed against this decision by the applicant. It accordingly became final. By a judgment of 28 September 1989 the Munich Court of Appeal (Oberlandesgericht München) quashed a judgment of the Deggendorf Regional Court (Landgericht) of 28 October 1987 and increased the amount of compensation initially awarded to the applicant from DEM 115,513 to DEM 900,000. It refused to grant compensation in respect of parcel number 361/4, having regard to the binding effect of the judgment of the Regensburg Administrative Court of 28 April 1986. On 17 June 1991 the Bavarian Regional Supreme Court (Bayerisches Oberstes Landesgericht) dismissed the applicant’s appeal on points of law. In 1992 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint lodged against these decisions for adjudication. On 11 March 1993 the applicant requested that the proceedings be re-opened and he be awarded compensation. By a judgment of 20 February 1995 the Regensburg Administrative Court dismissed the applicant’s application for the re-opening of the proceedings. It ordered, however, the administrative authorities to decide on the applicant’s compensation claim in respect of the remaining plots of land (parcels nos. 332/3, 335, 337 and 361/4). On 12 December 1997 the Regen Regional Administrative Authority dismissed the applicant’s compensation claim. It found that the land was situated outside the nature conservation area and was thus not affected by restrictions of the land use. The development plan for the week-end residences had never been validated, nor had the applicant ever been the owner of building land. Furthermore, with the exception of parcel number 361/4 he had sold the plots of land (parcels nos. 332/3, 335 and 337) in 1988. At the time of filing the compensation claim with the Administrative Authority in 1993 he did not own the land any longer. In any event, his compensation claim had not been filed within the period of three years after the date on which the nature protection decree had been issued. The applicant appealed against this decision claiming to be entitled to be awarded by the State of Bavaria an adequate compensation for all the parcels of his land. By a judgment of 24 January 2002 the Landshut Regional Court dismissed the applicant’s claim. The applicant appealed against this judgment. By a judgment of 20 January 2003 the Munich Court of Appeal dismissed the appeal. It found that the Regensburg Administrative Court, by a final judgment of 28 April 1984, had confirmed the decision of the Regen Administrative Authority of 10 April 1984 concerning the question of the transfer of the applicant’s land. The question of compensation in respect of that land had been definitively settled by the judgment of the Munich Court of Appeal of 28 September 1991 following the dismissal of the applicant’s appeal on points of law by the Bavarian Regional Supreme Court on 17 June 1991. According to the Court of Appeal, the same reasoning applied to the applicant’s request to re-open the proceedings with a view to being granted a higher compensation under the compensation provisions of the Federal Building Code (Bundesbaugesetz). By a final judgment of 20 February 1995 – the applicant’s appeal on points of law had been dismissed by the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) on 16 January 1997 – the Regensburg Administrative Court had refused to re-open the proceedings with a view to reassessing the amount of compensation in respect of the land whose property had been transferred to the State of Bavaria. The remaining plots of land (parcels nos. 332/3, 335 and 337 361/4) were situated outside the area originally zoned for development and were thus neither adversely affected by the nature conservation decree nor by the decisions of the Regen Administrative Authority of 24 April and 14 and 25 May 1982 prohibiting the applicant from altering the natural conditions of this land (parcels nos. 339, 340 345/4 and 361/4). According to the Court of Appeal, important considerations of nature conservation made the proposed development incompatible with the preservation of the valuable wetland in the area concerned. The applicant had never enjoyed a right to develop the land in question nor had he ever had a legitimate expectation of carrying out the proposed development since the development plan had been invalid from the beginning. Furthermore the applicant was not entitled to compensation because agricultural use of the land was not prohibited. The Court of Appeal advised the applicant to accept the numerous court decisions given in his case which confirmed that the development plan had no legally binding effect and that the land in question was never designated for construction purposes. On 20 November 2003 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant’s appeal against the decision refusing him leave to appeal on the ground that the case raised no issue of principle. On 23 January 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication. In the meantime, by notices of 17 March and 18 July 1997, the Zwiesel Tax Office (Finanzamt) had assessed the applicant’s income tax taking into account the compensation paid to him by the State of Bavaria. The applicant’s appeals lodged against these decisions were dismissed by the Zwiesel Tax Office on 18 July 1997, the Munich Finance Court (Finanzgericht) on 14 July 2000 and the Federal Finance Court (Bundesfinanzgericht) on 28 June 2001. On 20 September 2001 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication. On 24 October 2001 the Zwiesel Tax Office issued a new revised tax assessment claiming payment of income tax for the fiscal year 1991. The appeals lodged by the applicant were dismissed by the Zwiesel Tax Office on 24 October 2001 and the Munich Finance Court on 24 January 2003. On 10 December 2003 the Federal Finance Court rejected the applicant’s appeal against the decision refusing him leave to appeal on points of law. It found that the applicant’s grounds of appeal did not satisfy the procedural requirements of the relevant provisions of the Finance Court Act (Finanzgerichtsordnung). It noted in particular that the complaints concerning the fairness of the proceedings and the interpretation of the facts allegedly in contrast to the clear contents of the files had not been submitted within the statutory time-limit. On 9 January 2004 the Zwiesel Tax Office notified the applicant an enforcement decision of 16 December 2003 in respect of his tax liability relating to the period from 1991 to January 2003 in an amount of EUR 310,440.02, including interests, penalties for late payment and costs of the proceedings. On 8 March 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication. Simultaneously the Landshut Regional Court claimed from the applicant the payment of court costs. On 22 December 2003 the Viechtach District Court (Amtsgericht) issued a warrant of arrest against the applicant because he did not make an affidavit (eidesstattliche Versicherung) as to his assets. On 21 April 2004 the Deggendorf District Court assessed the value of the applicant’s real estate at Regen and fixed the date for its compulsory sale at 16 November 2005.
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train
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001-91419
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ENG
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RUS
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CHAMBER
| 2,009
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CASE OF SAGAYEV AND OTHERS v. RUSSIA
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Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
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5. The applicants are: 1. Mr Imran Sagayev, born in 1933, 2. Ms Deshi Abukhadzhievna Sagayeva, born in 1940, 3. Mr Isa Imranovich Sagayev, born in 1958, 4. Ms Raia Zaindievna Sagayeva, born in 1966, 5. Ms Diana Isayevna Sagayeva, born in 1989, 6. Ms Elza Isayevna Sagayeva, born in 1995, 7. Ms Selita Vozukayeva, born in 1980, 8. Mr Khusein Imranovich Sagayev, born in 1971, 9. Ms Petimat Abdulvakhabovna Sagayeva, born in 1971. 10. Ms Aizan Imranovna Sagayeva, born in 1968. 6. The applicants are Russian nationals who live in Urus-Martan, Chechen Republic. 7. The first and second applicants are married and are the parents of the third applicant and his brother, Mr Ilias Imranovich Sagayev, who was born in 1972. The seventh applicant is the wife of Mr Ilias Imranovich Sagayev. The third applicant is married to the fourth applicant and they have three children: the fifth and sixth applicants and Mr Yunadi Isayevich Sagayev, who was born in 1986. The eighth and ninth applicants are a brother and sister-in-law of Mr Ilias Imranovich Sagayev. The eighth applicant is also an uncle of Mr Yunadi Isayevich Sagayev. The tenth applicant is a sister of Mr Ilias Imranovich Sagayev and an aunt of Mr Yunadi Isayevich Sagayev. 8. Eight members of the Sagayev family lived in a family compound at 72A Sheripova Street, Urus-Martan. The compound consisted of three houses in one courtyard. The first, second and tenth applicants lived in the first building. Mr Ilias Sagayev and the seventh applicant lived in the second building. The eighth and ninth applicants lived in the third building. Ms S. Sagayeva, a sister of Mr Ilias Sagayev and an aunt of Mr Yunadi Sagayev, whose permanent residence was in Grozny, temporarily resided at 72A Sheripova street as well. 9. At 5 a.m. on 30 August 2002 a group of between ten and twenty armed men in camouflage uniforms wearing masks came to the family compound. They first broke down the doors to the houses of the first and eighth applicants. Then they went to the house of Mr Ilias Sagayev, broke down the door and apprehended him. They took him into the street and walked towards their vehicles, which they had apparently parked up the road, a short distance from the house. The applicants heard the sound of armoured personnel carriers (APC) while they were standing in the yard outside their houses. They were convinced that the armed men were Russian servicemen as they spoke Russian without an accent, and a curfew prevented civilians from being out on the streets at night. 10. The account of the events was given in written statements by the first, second, seventh, eighth, ninth and tenth applicants. Mr K., their neighbour, stated in writing that at around 5 a.m. on 30 August 2002 he had seen military vehicles drive past his house along Sheripova Street. He had then heard them stop not far from his house before the engines were turned off. He had heard the vehicles again some ten to fifteen minutes later as they were driving away. Ms D., another neighbour, confirmed in writing that at around 5 a.m. on 30 August 2002 she had heard an APC park not far from her house and had then heard people talking in Russian. 11. The Government submitted that in the course of the investigation in case no. 61121 it was established that at approximately 5 a.m. on 30 August 2002 unidentified persons in camouflage uniforms and masks had abducted Mr Ilias Sagayev from a house at 72A Sheripova Street, Urus-Martan. 12. In the morning of 30 August 2002 the first applicant went to the Urus-Martan Military Commander’s Office, the Prosecutor’s Office, the local police department, and the Urus-Martan District Administration to submit written complaints concerning the events of the previous night. He was questioned by an investigator, R. Yu., who later also questioned the second, seventh, eighth and tenth applicants at the Prosecutor’s Office. When the first applicant met the head of the Administration, the latter told him that he had no influence over the fate of persons held at the Military Commander’s Office. 13. Three days later the first applicant was received by the Urus-Martan District Military Commander. According to the first applicant, the Commander listened to his story, accepted the written complaint, and left the room without saying a word or promising to conduct an investigation. 14. In subsequent weeks the applicants visited several prisons in the Chechen Republic, including Chernokozovo, Khankala and the organised crime unit in Grozny, but received no information about their missing relative. They also made unsuccessful attempts to find intermediaries to track him down. 15. On 10 September 2002 the Urus-Martan District Prosecutor’s Office opened criminal investigation no. 61121 into the abduction of Mr Ilias Sagayev. 16. The applicants sent numerous applications to various State authorities, copies of which have been submitted to the Court. In particular, on 18 October 2002 the first applicant applied in writing to the Military Commander, the Urus-Martan District Prosecutor’s Office, the Federal Security Service (FSB) and the Urus-Martan police, requesting assistance in locating Mr Ilias Sagayev and securing his release. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the United Group Alignment (UGA) were forwarded to the Military Prosecutor of military unit no. 20102. Those filed with the Ministry of the Interior were forwarded to the Urus-Martan police. 17. On 2 November 2002 the Urus-Martan District Prosecutor’s Office granted the first applicant victim status in the criminal proceedings. According to the Government, he was questioned on the same date. The first applicant was informed of the decision to grant him victim status on 21 November 2002. 18. On 10 November 2002 the Urus-Martan District Prosecutor’s Office decided to suspend the investigation. In the decision it was stated that “all possible investigative measures were taken, [however,] the persons to be charged were not identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had actually been taken. The first applicant was informed of the decision on 15 November 2002. 19. On 31 March 2003 the Urus-Martan District Prosecutor’s Office informed the first applicant that his letter had been included in the criminal case file and that steps were being taken to establish the identity of the perpetrators of the crime. 20. On 3 April 2003 the Ministry of the Interior informed the applicants that the investigation had been reopened on an unspecified date and that the department was taking investigative measures in liaison with the Prosecutor’s Office of the Chechen Republic. 21. On 18 April 2003 the applicants’ representatives, the SRJI, requested the Urus-Martan District Prosecutor’s Office to provide information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open the criminal investigation, to suspend it, and to grant victim status. 22. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that criminal case no. 61121 had been suspended since, although all investigative measures had been taken, the perpetrators of the crime had not been identified and Mr Ilias Sagayev’s whereabouts had not been established. The letter further stated that R. Yu. was the investigator in the case and that copies of the decisions to open and suspend the case and to grant victim status to the first applicant had been sent to the latter. 23. On 16 May 2003 the Military Prosecutor of military unit no. 20102 informed the first applicant that his letter had been examined and found not to contain any evidence of the involvement of military servicemen in the abduction of Mr Ilias Sagayev. 24. On 11 June 2003 the SRJI requested the Urus-Martan District Prosecutor’s Office to provide the first applicant with information on the status of the criminal investigation and copies of the relevant decisions. 25. On 9 July 2003 the Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and on the grounds of the decision to suspend the investigation if such a decision had been taken. No further information was received by the applicants on this subject. 26. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 10 November 2002 to suspend the investigation and resumed the proceedings. The first applicant was informed accordingly. 27. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision. 28. On 12 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the first applicant that his application had been forwarded to the Military Prosecutor’s Office of the UGA. According to the letter, the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation and referred it to the Urus-Martan District Prosecutor’s Office. 29. On 20 October 2003 the FSB informed the first applicant that Mr Ilias Sagayev had not been detained by the FSB as there had been no lawful grounds for his detention, and that he was not suspected of any offences. It was also stated that the FSB was taking the necessary measures to identify those involved in Mr Ilias Sagayev’s apprehension and to establish his whereabouts. 30. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response. 31. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 and resumed the investigation. The first applicant was informed accordingly. 32. On 1 March 2004 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision. 33. On 7 April 2004 S., an official from the Urus-Martan Department of the Ministry of the Interior of the Chechen Republic, sent the first applicant a letter informing him that inquiries concerning the whereabouts of his son had been sent to the Departments responsible for the Execution of Sentences of the Chechen Republic and of other regions of the Northern Caucasus and to the Main Information Centre of the Ministry of the Interior in Moscow. A profile of Mr Ilias Sagayev had been sent to all District Departments of the Interior in the Chechen Republic, as well as to law-enforcement agencies in the Urus-Martan district. However, S. had not received any positive replies to any of the inquiries. 34. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the first applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Ilias Sagayev’s whereabouts. 35. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation of 1 March 2004 and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his son had been apprehended by officers of the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The first applicant was notified of the decision. 36. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation on the ground that although all necessary investigative measures had been taken the perpetrators could not be identified. The decision did not specify any measures actually taken. 37. On 6 June 2005 the Urus-Martan District Prosecutor’s Office resumed the investigation on account of the necessity to take additional investigative measures. The first applicant was informed accordingly. 38. After that the investigation was again suspended on 6 July 2005, resumed on 18 August 2005, suspended on 10 September 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date. 39. According to the applicants, the investigative authorities have never inspected the scene of the abduction or questioned their neighbours, who had witnessed the events. Despite their numerous requests, they had not received any information concerning any other investigative measures taken. According to the Government, an inspection of the Sagayevs’ house in Sheripova Street was carried out on an unspecified date. No evidence was found or seized. 40. The third applicant lived together with his family at 37 Aviatsionnaia Street, Urus-Martan. His son, Mr Yunadi Sagayev, who born in 1986, also lived at that address. At around 2 a.m. on 13 September 2002 about six armed men in masks approached the third applicant’s house on foot after apparently leaving their vehicles around the corner. The whole family was asleep when the armed men climbed over the fence around their courtyard and broke down the door. Six of the men entered the house, without introducing themselves. Even when specifically asked by the applicants, they refused to show their identity papers. Five of them went into the room where the third applicant and Mr Yunadi Sagayev were sleeping, and the sixth man went into the room where the fourth, fifth and sixth applicants were sleeping. They told the fourth applicant that they were conducting identity checks. The men put the third applicant and Mr Yunadi Sagayev against the wall, while the fourth applicant went into another room to look for their identity papers to show them to the armed men. The men took Mr Yunadi Sagayev’s passport and then took him outside. He was dressed in a black tracksuit with red and white details, a red T-shirt with a white stripe and slippers. Before leaving, the men contacted their vehicles by radio and told the fourth applicant that her son would be released later. As they were leaving, they broke the lights outside the Sagayevs’ house. The applicants believed that the men were Russian servicemen as they spoke Russian without an accent. 41. The third, fourth and fifth applicants witnessed Mr Yunadi Sagayev’s apprehension and gave their account of the events in writing. 42. The Government submitted that in the course of the investigation in case no. 61126 it was established that at approximately 2.30 a.m. on 13 September 2002 unidentified armed persons in camouflage uniforms and masks had abducted Mr Yunadi Sagayev from a house at 37 Aviatsionnaia Street, Urus-Martan. 43. In the morning of 13 September 2002 the fourth applicant applied in person to the Military Commander’s Office, the Town Administration, the Prosecutor’s Office, and police for information about her son. Officials of each of these agencies told her that they had not detained her son the previous night. They promised to help establish who had been on duty during the night but ultimately provided no assistance. 44. The applicants sent numerous applications to various State officials, copies of which have been submitted to the Court. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the UGA were forwarded to the Military Prosecutor of military unit no. 20102. The applications filed with the Ministry of the Interior were forwarded to the Urus-Martan police. 45. On 21 September 2002 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of Mr Yunadi Sagayev in case no. 61126. 46. On 3 October 2002 the Urus-Martan District Prosecutor’s Office granted the fourth applicant victim status in the criminal proceedings. 47. On an unspecified date the investigators questioned the third and fourth applicants and their neighbours. 48. On 21 November 2002 the Urus-Martan District Prosecutor’s Office suspended the investigation into the abduction of Mr Yunadi Sagayev. In the decision to suspend the investigation it was stated that “all possible investigative measures have been taken, [however,] the persons to be charged have not been identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had been actually taken. The applicants were informed of the decision in a letter of 14 December 2002. 49. On 18 April 2003 the SRJI applied in writing to the Urus-Martan District Prosecutor’s Office requesting information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open and suspend the criminal investigation and to grant victim status. 50. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that investigation in criminal case no. 61126 was, at that date, suspended as all investigative measures had been taken but the perpetrators of the crime had not been identified and Mr Yunadi Sagayev’s whereabouts had not been established. It was further stated that investigator R. Yu. was responsible for the case and that copies of the decisions concerning the criminal proceedings had been sent to the fourth applicant. 51. On 11 June 2003 the SRJI wrote to the Urus-Martan District Prosecutor’s Office to ask for the first and third applicants to be granted victim status in criminal case no. 61126. 52. On 24 June 2003 the Military Prosecutor’s Office of military unit no. 20102 informed the third applicant that his letter had been examined but had been found not to disclose any evidence of servicemen’s involvement in Mr Yunadi Sagayev’s abduction. 53. On 9 July 2003 the Public Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and, if a decision to suspend the investigation had been taken, to provide a report on the grounds of the decision. No further information was received by the applicants on that subject. 54. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 21 November 2002 to suspend the investigation and resumed the proceedings. 55. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly. 56. On 11 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the third applicant that his application had been forwarded to the Military Prosecutor’s Office of UGA. The letter stated, incorrectly, that the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation into Mr Yunadi Sagayev’s abduction and had referred it to the Urus-Martan District Prosecutor’s Office. 57. On 20 October 2003 the FSB informed the third applicant that the FSB had not detained Mr Yunadi Sagayev as there had been no lawful grounds for his detention. He had not been suspected of any criminal offences. 58. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the Prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response. 59. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 on the ground that the investigation was incomplete and resumed the proceedings. The fourth applicant was notified of the decision. 60. On 1 March 2004 the Urus-Martan District Prosecutor’s Office again suspended the investigation on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly. 61. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the fourth applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Yunadi Sagayev’s whereabouts. 62. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 1 March 2004 to suspend the investigation and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his grandson had been apprehended by officers from the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The fourth applicant was notified of the decision. 63. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation once again on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly. 64. After that the investigation was resumed on 6 June 2005, suspended on 6 July 2005, resumed on 1 September 2005, suspended on 2 September 2005, resumed on 18 November 2005, suspended on 18 December 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date. 65. According to the applicants, the investigative authorities have not inspected the scene of the abduction. According to the Government, an inspection of the Sagayevs’ house in Aviatsionnaya street was carried out on an unspecified date. No evidence was found or seized. 66. The applicants submitted that, despite their numerous requests, they have received no information about the investigative measures that have been taken. 67. On 24 June 2005 the first applicant filed a complaint with the Urus-Martan Town Court concerning the investigating authorities’ inaction and their failure to provide him with access to case files nos. 61121 and 61126. In his complaint, he stated that Mr Ilias Sagayev and Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs. 68. On 1 August 2005 the Urus-Martan Town Court upheld the part of the complaint relating to the investigation in case no. 61121 but dismissed the part relating to the investigation in case no. 61126. 69. As regards case no. 61121, which concerned the abduction of Mr Ilias Sagayev, the court held, in particular: “...[T]he decision of the Urus-Martan District Prosecutor’s Office to refuse [the first applicant] the right to study the materials in criminal case no. 61121 is in breach of the provisions of the Constitution and should be quashed. The materials from criminal case no. 61121 ... show that at around 5 a.m. on 30 August 2002 unidentified men in camouflage uniforms and masks broke into the Sagayev’s house ... and took [Mr] Ilias Sagayev with them. In the course of the investigation ... the following investigative measures were taken. [The second, seventh, eighth applicants and Mr K.] were questioned as witnesses. Requests for certain investigative measures were sent. According to the Urus-Martan district department of the FSB, they had not apprehended [Mr Ilias] Sagayev or taken him to their premises. Similar responses were received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic. On 2 November 2002 [the first applicant] ... was granted victim status. In the course of the investigation [the perpetrators] were not identified and the whereabouts of [Mr Ilias] Sagayev [were not established], as a result of which the investigation was repeatedly suspended on account of [the failure to identify the person] to be charged with the offence. The investigation was suspended for the last time on 6 July 2005. At the same time, the materials in the case file show that the investigator failed to take all the investigative measures necessary to establish the whereabouts of the abducted person and to identify the perpetrators. In particular: - it has not established to which [authority] within the territory of the Urus-Martan district at the time of [Mr] Ilias Sagayev’s apprehension the APCs belonged, where each [APC] was located at the time of the abduction and on whose orders it was being used; - neither the heads of the [authorities] which operated APCs nor the drivers of individual [APCs] were questioned; - the [military] register concerning the use of military vehicles at the time of the abduction was not examined; - the heads of the military commander’s office, of the district department of the FSB and of the district department of the interior were not questioned with a view to finding out who had been granted permission to pass through the town of Urus-Martan on the night of 30 August 2002 when freedom of movement was restricted; - the register of persons detained in the period concerned was neither seized nor examined, and the persons in charge of detention facilities were not questioned with a view to establishing the circumstances relating to the [placement] of abducted person in such facilities; - G., the military commander of the Urus-Martan district, was not questioned, whereas from the records of questioning of [the first applicant] it would appear that he had claimed to have been able to influence the fate of [his abducted relatives]. K., head of the FSB department, who had admitted his involvement in [Mr Ilias] Sagayev’s abduction, was not questioned either. The above circumstances prove that [the first applicant’s] request for the [proceedings] to be resumed and for a more thorough and complete investigation is well-founded...” 70. As regards case no. 61126, the court dismissed the complaint on the ground that the first applicant had not been granted victim status in those proceedings and had failed to submit to the court documents corroborating his claim to be Mr Yunadi Sagayev’s grandfather. 71. Following the delivery of the judgment, on 9 September 2005 the first applicant requested the Urus-Martan District Prosecutor’s Office to give him access to materials in case file no. 61121 and to allow him to make copies of relevant documents. His request was refused. The first applicant complained to the Urus-Martan Town Court against the refusal. 72. On 23 December 2005 the Urus-Martan Town Court dismissed the complaint. The first applicant appealed. 73. On 8 February 2006 the Supreme Court of the Chechen Republic dismissed his appeal. It noted that Article 42 of the Code of Criminal Procedure provided that a victim could only inspect records pertaining to investigative actions in which he had participated. He could inspect the entire case file once the investigation had been completed. Since the investigation in case no. 61121 was still pending, the refusal of the Urus-Martan District Prosecutor’s Office to provide the applicant with access to the entire case file was lawful. 74. On 27 September 2005 the fourth applicant filed a complaint with the Urus-Martan Town Court concerning the inaction of the investigating authorities and their failure to give her access to case file no. 61126. In her complaint she stated that Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs. 75. On 28 October 2005 the Urus-Martan Town Court upheld her complaint. It held, in particular, that the prosecuting authorities’ refusal to allow her access to the materials in the case file was in breach of the Constitution. It further noted that in the course of the investigation the first, second, third and fourth applicants, Ms L. S. and Ms R. B. had been questioned as witnesses. In reply to requests for information the Urus-Martan district department of the FSB had stated that they had not apprehended Mr Yunadi Sagayev or taken him to their premises. Similar responses had been received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic. 76. The court further noted a number of flaws in the investigation no. 61126 similar to those noted in its decision of 1 August 2005 in respect of the investigation in case no. 61121 (see paragraph 69 above) and ordered the Urus-Martan District Prosecutor’s Office to conduct a more thorough and complete investigation. 77. Following the delivery of the judgment, on 14 November 2005 the fourth applicant requested the Urus-Martan District Prosecutor’s Office to give her access to the materials in case no. 61126 and to allow her to make copies of relevant documents. 78. On 18 November 2005 the Urus-Martan District Prosecutor’s Office refused the request on the ground that in accordance with Article 42 of the Code of Criminal Procedure a victim could only inspect records pertaining to investigative actions in which he had participated. 79. Despite a specific request by the Court, the Government did not submit copies of the investigation files in cases nos. 61121 and 61126 concerning the abduction of Mr Ilias Sagayev and Mr Yunadi Sagayev. They submitted ninety pages of case-file materials containing decisions to institute, suspend and resume the investigation and to grant victim status. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the “materials of the criminal cases containing no state or military secrets ... without making copies thereof” at the location of the preliminary investigation in Russia. 80. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
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train
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001-57700
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ENG
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SWE
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CHAMBER
| 1,991
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CASE OF FEJDE v. SWEDEN
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No violation of Art. 6-1
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C. Russo;R. Pekkanen
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9. Mr Hans Fejde, a Swedish citizen, is a businessman residing at Västra Frölunda in the South-West of Sweden. 10. In connection with the bankruptcy of the applicant’s removal firm in 1984, a rifle was found among the goods stored on its business premises. Following a police investigation during which it was recorded that the rifle lacked a breech-block, the applicant was charged, on 2 March 1984, with illegal possession of a weapon (olaga vapeninnehav) contrary to the Weapons Act 1973 (vapenlagen 1973:1176; "the 1973 Act"). Section 1, sub-section 2, of the 1973 Act expressly included within the definition of weapons unusable items which, if made usable, would count as weapons. 11. The applicant was subsequently summoned to appear before the City Court (tingsrätten) of Göteborg for a hearing of his case (huvudförhandling) on 27 August 1984. In its judgment of the same date the court stated: "[The applicant] has contested criminal liability, on the following grounds: the weapon in question was owned by R.T., who was married to his mother. R.T. is dead. When [the applicant’s] mother moved house some ten years ago the weapon went to [the applicant’s] storage room together with furniture for which there was no room in his mother’s new home. The weapon was found in the storage room in connection with [the applicant’s] bankruptcy. He was aware of the weapon being there all the time but he did not think of it as a weapon. The rifle lacks a breech-block and there was never any ammunition. [The applicant] does not consider himself to be the owner of the rifle since it is his mother, now 82 years old, who is the formal owner of it. The court finds that [the applicant] cannot avoid being held responsible for the possession of the weapon, but that the violation of the Weapons Act is of a minor character." The court sentenced him to 30 day-fines (dagsböter) of 10 kronor each, i.e. 300 Swedish kronor in total. The daily amount of the fines was fixed on the basis of Mr Fejde’s financial situation. The court also upheld the earlier decision taken by the police to seize the rifle. 12. On 4 September 1984 the applicant appealed to the Court of Appeal for Western Sweden, alleging that: (a) the police investigations had not been sufficiently thorough; (b) although he admitted that he was aware that the weapon was in his removal company’s care, he questioned whether this company really had a duty to check that the weapon had a valid licence; (c) new facts had come to light, namely that the actual owner of the rifle was not the applicant’s mother, but the son of his now deceased stepfather; (d) the sentence imposed by the City Court was much too severe in that it had been entered on the criminal records and would have detrimental effects on his future life, in particular as far as his chances of employment were concerned; (e) the 1973 Act had not been correctly applied in his case because the rifle in question had no breech-block, something which could be proven by his mother and half-brother, and hence could not be considered a weapon within the meaning of the Act. 13. By letter of 23 October 1984 the Court of Appeal notified the applicant that, according to Chapter 51, section 21, of the Code of Judicial Procedure, his case could be dealt with without a hearing and invited him to express his views within fourteen days as to the necessity for a hearing. Alternatively, he could submit his final written observations within the same time-limit. He was asked to indicate in his reply any evidence on which he would rely. 14. By letter of 24 October 1984 the applicant informed the Court of Appeal that he considered a hearing to be necessary in his case and requested the appointment of a defence lawyer under the free legal aid scheme. In a letter of 15 February 1985 he also advised the Court of Appeal that the lower court’s judgment had caused him damage because it had on a number of occasions led prospective employers to turn down his applications for work. 15. According to a note dated 4 March 1985, written by an official of the court following a telephone conversation with the applicant, the latter stated that he would not insist on calling witnesses because it was no longer disputed that the breech-block was missing. 16. On 6 March 1985 the Court of Appeal refused the applicant’s request for a defence lawyer. On the same day he was also informed that, since the case could be decided without a hearing, he should submit his final written observations within ten days. 17. In a letter of 11 March 1985 the applicant reiterated his argument that the rifle could not be considered a weapon within the meaning of the 1973 Act and again offered his half-brother’s testimony on this point. Furthermore, the applicant contested the Court of Appeal’s refusal to appoint a defence lawyer. The Court of Appeal, taking the latter submission to be an application for leave to appeal, referred the matter to the Supreme Court (högsta domstolen), which refused him such leave on 19 June 1985. 18. The Court of Appeal examined the case on 22 August 1985 and, in accordance with Chapter 51, section 21, of the Code of Judicial Procedure, first sub-paragraph, point 4, and third sub-paragraph, dismissed the applicant’s request for a trial hearing as this was found to be manifestly unnecessary (see paragraph 21 below). This decision was made public on 2 October 1985 when judgment was delivered. The court’s judgment stated, inter alia: "[The applicant] has submitted to the Court of Appeal the same information as was mentioned in the judgment of the City Court and added: when [his stepfather] and his mother separated, his stepfather left the rifle at the mother’s place of residence at Furuby. Because [the stepfather] has died it is his son ... who is the owner of the rifle. It is undisputed that [the applicant] has been in possession of the rifle without a permit. Regardless of how it came into his possession and who owns it, he shall therefore be convicted of having violated the Weapons Act. The sentence should be [the one determined by] the City Court. The Court of Appeal, which accepts [the applicant’s] explanations as to how the rifle came into his possession, finds that he is not the owner of it. Accordingly, the question of confiscation of the rifle concerns a person who is not accused in the present case. An action for confiscation should be directed against the owner of the rifle in accordance with Section 17 of the Act of 1946 on promulgation of the new Code of Judicial Procedure. No such action has been taken in this case. The request for confiscation is therefore rejected." 19. On 12 October 1985 the applicant sought leave to appeal to the Supreme Court. He maintained, inter alia, that vital evidence, namely that the rifle had no breech-block and accordingly could not be a weapon within the meaning of the 1973 Act, had been disregarded by both the City Court and the Court of Appeal. He asserted that this could easily have been proved had the Court of Appeal granted his request for a hearing and heard witnesses. The Supreme Court refused leave to appeal on 3 March 1986. 20. On 15 April 1986 the Supreme Court refused an application by Mr Fejde to have his case re-opened. 21. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do however exist, particularly at appellate level. Thus, Chapter 51, section 21, of the Code of Judicial Procedure (as amended as of 1 July 1984 by Law 1984:131) provides: "The Court of Appeal may dispose of an appeal on the merits without a hearing: 1. if the prosecutor appeals only for the benefit of the accused, 2. if an appeal brought by the accused is supported by the opposing party, 3. if the appeal is plainly unfounded, or 4. if no cause exists to hold the accused legally liable, or to impose a sanction upon him, or to impose a sanction other than a fine or conditional sentence, or a combination of such sanctions. ... If, in a case referred to [above], a party has requested a hearing, this shall take place unless manifestly unnecessary. ... For a ruling not relating to the merits a hearing need not take place." 22. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits on its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228), also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.
| 0
|
train
|
001-108500
|
ENG
|
RUS
|
CHAMBER
| 2,012
|
CASE OF VULAKH AND OTHERS v. RUSSIA
| 3
|
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
|
Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
5. The applicants are relatives of the late Mr Vitaliy Eduardovich Vulakh. The first two applicants are his father and mother, born in 1932 and 1939 respectively, and the third and fourth applicants are his children, born in 1985 and 1984 respectively. They lived in Kurganinsk in the Krasnodar Region. 6. On an unspecified date a criminal investigation was opened into several counts of murder, robbery and destruction of property committed by a criminal syndicate. It appears that Mr Vitaliy Vulakh was suspected of being the leader of the syndicate. 7. On 25 March 2002 Mr S., Mr N. and Mr K. were arrested on suspicion of membership of the gang. On learning of their arrest, Mr Vitaliy Vulakh shot dead his fiancée and committed suicide. 8. On 20 June 2002 the criminal prosecution of Mr Vitaliy Vulakh was discontinued as a result of his death. 9. On 3 October 2002 the Krasnodar Regional Court convicted Mr S., Mr N. and Mr K. of serious criminal offences and sentenced them to lengthy terms of imprisonment. The judgment mentioned that Mr Vitaliy Vulakh had been the leader of a criminal enterprise and had told the defendants to murder his business competitor Mr G. It read, in particular, as follows: “The person who had been the leader of the gang (V[italiy] Vulakh) in respect of whom the case was discontinued because of his death, had money at his disposal, he funded the gang and paid each gang member to commit crimes: he bought cars, paid for their maintenance, petrol and travel expenses...” 10. In these proceedings the victims Mr G., Mr F., Ms B. and Ms V. brought civil claims against the three defendants, seeking compensation for pecuniary and non-pecuniary damage. The Regional Court indicated that these claims should be examined in separate civil proceedings. 11. On 14 October 2002 the first applicant lodged an appeal to the Supreme Court of the Russian Federation. He submitted that the decision on the discontinuation of criminal proceedings against his son had never been notified to him or to his son’s counsel, and that counsel had not been allowed to study the file or plead his son’s innocence. 12. On 6 November 2002 a judge of the Krasnodar Regional Court informed the first applicant that he had no right to lodge an appeal to the Supreme Court because he was not a party to the criminal case. The judge wrote to him that further appeals would also be rejected. 13. It appears that on 2 April 2003 the Supreme Court of the Russian Federation examined appeals by those convicted and upheld the judgment of 3 October 2002. A copy of this judgment was not made available to the Court. 14. On 5 March 2003 a notary public issued the four applicants with a certificate of succession on intestacy, according to which they inherited Mr Vitaliy Vulakh’s house. 15. On an unspecified date Mr G., Mr F., Ms B., Ms V. and a private company sued the four applicants and the Kurganinskiy dairy factory, of which Mr Vitaliy Vulakh had been a minority shareholder, for pecuniary and non-pecuniary damages. 16. On 4 September 2003 the Kurganinskiy District Court of the Krasnodar Region found against the applicants and the dairy factory, finding as follows: “According to Article 42 of the Code of Criminal Procedure of the Russian Federation, the victim shall be compensated for the pecuniary damage caused by the crime, as well as for the costs incurred during the pre-trial investigation and trial... According to Article 1064 of the Civil Code of the Russian Federation, damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage. According to the judgment of the Krasnodar Regional Court of 3 October 2002 and the judgment of the Supreme Court of 2 April 2003, Mr V[italiy] Vulakh had organised an armed group (gang) composed of Mr S., Mr N. and Mr K. who had committed, under his leadership, serious crimes: the murder of the head of the Kurganinskiy District Council Mr V. and repeated attempts to murder the director general of [a] private company, Mr G. According to Resolution no. 1 of the Plenary Supreme Court of the USSR of [unreadable] March 1979, entitled ‘On the case-law on application of provisions for compensation for pecuniary damage caused by crime’, those who cause damage through their criminal activities shall be jointly liable for that damage. Thus, Mr V[italiy] Vulakh, Mr K., Mr S., and Mr N. are jointly liable for the damage caused by their crimes. According to Article 323 of the Civil Code, in cases of joint liability the creditor may claim satisfaction of debt, in full or in part, either from all the debtors or from each debtor individually. Mr V[italiy] Vulakh should have borne liability for the pecuniary and non-pecuniary damage caused by the crimes, but he committed suicide during the pre-trial investigation. The defendants Mr E. Vulakh, Ms V. Vulakh, Mr S. Vulakh and Ms V. Vulakh are heirs to Mr V[italiy] Vulakh after his death. According to Article 1175 of the Civil Code, heirs who have accepted an inheritance shall be jointly liable for the testator’s debts. Each heir is liable in proportion with the share of the inheritance he received. Article 1152 of the Civil Code provides that the heir accepting a part of an inheritance is presumed to have accepted the entire inheritance, whatever its form or location... On 5 March 2003 [the four applicants] were issued with an inheritance certificate... in respect of the house. According to Article 1176 of the Civil Code, the estate of a co-owner of a private company includes that co-owner’s part in the charter capital of the company. According to the audit report of 7 July 2003, the real value of Mr V[italiy] Vulakh’s part corresponds to 37.49% of the value of the net assets of the Kurganinskiy dairy factory, which amounts to 18,705,260 Russian roubles (RUB). For that reason, the defendants who have accepted a part of Mr V[italiy] Vulakh’s estate in inheritance must be considered to have accepted his part in the charter capital of the Kurganinskiy dairy factory. It follows that compensation in respect of pecuniary and non-pecuniary damage must be recovered from the Kurganinskiy dairy factory whose charter capital comprises a part of the estate inherited by [the applicants]...” The District Court awarded 33% of Mr Vitaliy Vulakh’s share in the dairy factory to Mr G.’s company, 19.3% to Mr G., and 25.7% to Ms B., and ordered immediate enforcement of the judgment. 17. On 14 September 2003 the applicants lodged a statement of appeal. They submitted that that Mr Vitaliy Vulakh had not been found guilty by a court of law and should be presumed innocent. In the absence of a guilty verdict on Mr Vitaliy Vulakh there were no grounds to impose joint liability on his heirs. A civil claim should have been brought against him, and the court should have examined the matter of procedural succession. Furthermore, the dairy factory could not be held liable for the debts of its owners. 18. On 18 September 2003 the Krasnodar Regional Court examined the appeal and upheld the judgment, endorsing the District Court’s approach and rejecting the applicants’ arguments in the following terms: “Although the prosecution of Mr V[italiy] Vulakh was discontinued in connection with his death, on 3 October 2002 Mr S., Mr N. and Mr K. were convicted and the conviction entered into legal effect. According to the judgment, Mr V[italiy] Vulakh had been the leader of an armed group (gang) which had committed, under his leadership, serious crimes: the murder of the head of the Kurganinskiy District Council, Mr V., and repeated attempts to murder the director general Mr G. This means that the conviction established that Mr V[italiy] Vulakh’s had been responsible for causing pecuniary and non-pecuniary damage to the plaintiffs.” 19. Criminal proceedings must be discontinued against a deceased person except where a continuation of the proceedings is necessary for his or her rehabilitation or for the reopening of the case in respect of others on account of newly discovered circumstances (Article 5 § 8). 20. The Civil Code provides as follows: “1. A private company is a company founded by one or more persons; its charter capital is divided into parts described in its articles of association. Participants of a private company are not liable for its debts...” “6. Shares in the charter capital of a private company are transferred to the heirs of the company’s participants... unless the articles of association provide that such a transfer requires the consent of the other participants...” “1. Damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage... 2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his...” 21. The factual circumstances established by the final judicial decision in an earlier case, are binding on the court (Article 61 § 2). The final judicial decision in a criminal case concerning a particular person is binding on the court examining the civil-law consequences of that person’s actions only to the extent that the criminal court determined whether or not such actions had been committed and whether or not they had been committed by that person (Article 61 § 4). 22. On 13 June 2002 the Presidium of the Moscow City Court quashed the criminal judgment against three co-defendants in so far as it concerned the alleged participation of two other persons in the crimes. The Presidium held (decision reported in Bulletin of the Supreme Court, no. 9, 2003): “In breach of Article 314 of the RSFSR Code of Criminal Procedure, the [trial] court erroneously declared Mr B. and Mr E. to have been accomplices to the crime. It follows from the case materials that, by the investigator’s decision of 16 July 1998, the case against them had been severed into separate proceedings in connection with Mr E.’s grave illness and the failure to locate Mr B. A reference to them in the text of the judgment, describing them as persons who had been complicit in the criminal offences committed by the convicts, is not justified because... the merits of the criminal case against them have not been examined by a court of law.”
| 1
|
train
|
001-110989
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,012
|
GEORGIEVI v. BULGARIA
| 4
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
1. The applicants, Mr Todor Kerezov Georgiev and Ms Hriska Todorova Georgieva, are Bulgarian nationals who were born in 1938 and 1953 respectively and live in Varna. They are represented before the Court by Mr V. Panayotov, a lawyer practising in Varna. 2. The applicants are father and daughter. The second applicant suffers from severely impaired hearing, an anxiety disorder and hypochondria. In 2001 she was classified as 76% disabled and since then has been in receipt of a disability pension. She lives with the first applicant. 3. On an unspecified date after 1997 the applicants were charged with defrauding two individuals by purporting to sell them a flat which they had already sold to others. In 2002, in the course of the trial, the defrauded individuals brought claims for damages. It is unclear whether at that stage of the proceedings the applicants were legally represented. 4. During the trial the Varna District Court ordered an expert report on the second applicant’s mental health at the time of the alleged offence and on her fitness to stand trial. The experts, a psychiatrist and a psychologist, stated that she suffered from an anxiety disorder which presented as emotional instability and irritability which, however, did not amount to psychosis, and concluded that at the time of the alleged offence she had been able to understand the nature of her actions and to control them. She was also judged able to take part in the proceedings and to give evidence. The experts further observed that she suffered from severe hearing loss and difficulties in articulation due to missing teeth, which had hampered their communication with her. On the basis of previous medical reports in respect of the second applicant, the experts also observed that her relations with the first applicant had at times been strained. 5. In a judgment of 23 February 2004, the Varna District Court found both applicants guilty of fraud and sentenced them each to two years’ suspended imprisonment. In addition, it ordered them to pay damages to the civil parties. 6. All parties appealed. The first applicant and the civil parties were represented by counsel, but the second applicant was not. In her appeal, the second applicant alleged that her conviction was wrongful and had been tainted by breaches of the rules of procedure, and that her sentence was too harsh. At the hearing, which took place between 2.30 p.m. and 2.50 p.m. on 15 July 2004, the Varna Regional Court appointed counsel for the second applicant with reference to Article 70 § 1 (2) of the Code of Criminal Procedure 1974 (see paragraph 14 below). However, it did not specify whether the appointment of counsel was necessary because of the applicant’s mental disorder or because of her hearing impairment. 7. In her closing speech, the courtappointed counsel argued that the sentence imposed on the second applicant was too harsh and should be reduced in view of her state of health and the numerous mitigating circumstances. 8. In a judgment of 29 July 2004 the Varna Regional Court upheld the applicants’ conviction and sentence, as well as the award of damages to the civil parties. 9. On 6 August 2004 a court bailiff served notice of the judgment on the second applicant, who undertook to transmit it to the first applicant. However, according to the first applicant she did not do so within the statutory fifteen-day time-limit for appealing on points of law, which expired on 21 August 2004. 10. On 9 September 2004 the first applicant requested the Varna Regional Court to extend the time-limit for appealing on points of law. He asserted that he had not been duly notified of the judgment, as notice of it had been served solely on the second applicant, in breach of the rules of procedure. 11. The Varna Regional Court examined the request at a hearing held on 19 September 2004. The first applicant was represented by counsel. The second applicant was absent and was not legally represented. The court, considering that the applicants had conflicting interests and noting that the second applicant was absent, decided to appoint counsel for her. In her closing speech, the court-appointed counsel argued that the request was unfounded and that the second applicant had not been negligent with regard to the delivery of the notice to her father. The court observed that all previous summonses and notices to the applicants had been served on the second applicant in her capacity as the daughter of the first applicant and not as a co-accused. This had been in line with the relevant rules of procedure and there was no reason to find that the notice in question had not been properly served. 12. The first applicant appealed against that ruling to the Supreme Court of Cassation. The court heard the case on 18 January 2005. The public prosecutor supported the appeal, arguing that it was open to doubt whether the notice had really been transmitted to the first applicant. He also said that extending the time-limit for appealing on points of law would be consistent with the first applicant’s defence rights. 13. In a final decision of 4 February 2005 the Supreme Court of Cassation dismissed the appeal. It held that the notice of the Regional Court’s judgment had been served in accordance with the applicable rules. The second applicant was an adult. This fact, as well as her relationship to the first applicant, had been noted in the certificate of service. The applicants did not have conflicting interests. It was true that the second applicant suffered from neurasthenia, but, according to the expert report drawn up during the trial, this had not prevented her from understanding the nature of her criminal act and bearing responsibility for it. In their appeals against the first-instance court’s judgment the applicants had not mentioned any mental-health problems affecting the second applicant. Moreover, all earlier notices and summonses to the first applicant had been served on him through the second applicant without this being the source of any problems. 14. Article 70 § 1 (2) of the Code of Criminal Procedure 1974 (“the CCP 1974”), as worded at the material time, provided that the participation of defence counsel in the proceedings was mandatory if the accused suffered from a physical or mental handicap preventing them from conducting their defence in person. The participation of counsel was also mandatory if two or more accused had conflicting interests and one of them was legally represented (Article 70 § 1 (5)), or if the case was heard in the accused’s absence (Article 70 § 1 (6)). 15. As a rule, process had to be served personally (Article 160 § 1 of the CCP 1974). If the addressee was absent, it could be handed to an adult member of his or her household, and if there was no such individual, to the building caretaker, a flatmate, or a neighbour, if he or she undertook to deliver it to the addressee (Article 160 § 2). If the process was addressed to an accused and it was impossible to serve it in the manner described it could be handed to his or her defence counsel (Article 160 § 3). The process server had to note on the receipt the name and address of the individual through whom the process was being served, as well as his or her relationship to the addressee (Article 160 § 7). An individual who undertook to deliver process to the addressee and failed to do so could be fined up to 500 Bulgarian levs (Article 162 § 2). 16. A statutory time-limit could be extended, after its expiry, if it had been missed for a valid reason (Article 166 § 1 of the CCP 1974). The court had to examine the matter at a public hearing in the presence of the parties (Article 166 § 6).
| 0
|
train
|
001-4876
|
ENG
|
BGR
|
ADMISSIBILITY
| 1,999
|
BOICHINOV v. BULGARIA
| 4
|
Inadmissible
|
Matti Pellonpää
|
The applicant is a Bulgarian national born in 1972 and residing in Biala Slatina, the region of Vratsa. The facts of the case as submitted by the parties may be summarised as follows. A. 1. Background On an unspecified date in 1993, prior to the events in the present case, criminal proceedings were opened against the applicant and three other persons on charges that they had robbed a Ms P. in her presence, taking away 75 fur coats and some other objects. The applicant was detained on remand between 21 October 1993 and 22 February 1994 when he was released on bail. As of 1998 the case was pending for trial, a hearing having been fixed for 2 October 1998. On 22 April 1995 in the area of the village Gabare three persons were shot and killed in their car in what was seen as an internal war between local criminal groups. According to the indictment the applicant and a Mr G. were in a car which was chased by the victims. At some point the two cars stopped, and the applicant, who had bought an automatic gun three weeks before the events, went out and fired the gun to kill all the victims, one after another. At his trial the applicant stated that he was present during the killings but that it had been Mr G. who had shot the victims. 2. The preliminary investigation The applicant did not return home after the above events. On 25 April 1995 he voluntarily appeared at the police in Sofia where he was arrested and transferred to Vratsa. On 27 or 28 April 1995 an investigator (следовател) officially charged the applicant on three counts of murder and ordered his detention on remand. On 27 or 28 April 1995 this decision was confirmed by a prosecutor. Between April and June 1995 the investigator in the applicant’s case heard more than 30 witnesses and 8 medical, ballistic and other experts. Some of the witnesses were examined upon the request of the applicant’s lawyer of 19 May 1995. The investigator also made site visits and conducted an experiment, reconstructing the events of 22 April 1995. The investigator heard the applicant on at least four occasions during this period of time. He also collected other documentary evidence. On 22 June 1995 the investigator requested the competent prosecutor to authorise the continuation of the investigation for another 60 days. By decision of 7 July 1995 the Regional Prosecutor’s Office (окръжна прокуратура) granted the request. On 10 August 1995 the investigator appointed a psychiatric expert to examine the applicant. An expert in physics and chemistry was appointed on 12 October 1995 to analyse traces of gunpowder. The investigator examined the applicant again on 21 November 1995. The applicant requested the collection of additional evidence. On 22 November 1995 the investigator appointed an expert in graphology. On 24 November 1995 the Chief Public Prosecutor’s Office (главна прокуратура) authorised the continuation of the preliminary investigation. On 8 December 1995 the investigator dealt with the applicant’s requests in relation to the collection of evidence in his case. On 13 December 1995 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 5 January 1996 the Prosecutor’s Office returned the case for further investigation with instructions to charge the applicant also with unlawful possession of arms. On 22 January 1996 the investigator wrote a letter to the Regional Prosecutor’s Office in Vratsa explaining that the applicant insisted on the presence of his lawyer during the investigation and that the lawyer, who was from Sofia, had declined to come to Vratsa on several proposed dates. Finally the lawyer had agreed to come on 4 or 5 February 1996. The additional preliminary investigation was concluded on 12 February 1996. On 22 February 1996 the Regional Prosecutor’s Office submitted an indictment to the Regional Court in Vratsa. By decision of 10 April 1996 the Regional Court fixed a hearing for 28 May 1996. At the hearing on 28 May 1996 the applicant claimed that there had been breaches of procedure and requested that the case be referred for further preliminary investigation. The Court found that there had been procedural violations which necessitated the referral of the case back to the prosecutor. On 5 June 1996 the prosecutor returned the case to the investigator. On 9 August 1996 the Prosecutor’s Office refused the applicant’s request for the replacement of the investigator. On 16 August 1996 the investigator examined one witness. On 18 August 1996 the investigator allowed eight civil plaintiffs to consult the case-file. On 7 October 1996 the applicant was examined by the investigator. On 14 October 1996 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 23 October 1996 a new indictment was submitted to the Vratsa Regional Court. During the preliminary investigation stage of the proceedings the applicant, who was legally represented, submitted to the investigator and to the prosecution authorities numerous complaints and requests. He complained of the behaviour of the investigator, about the visit arrangements in prison, about the delays in the examination of his case, requested his release and raised other matters. 3. The trial By decision of 15 November 1996 the Court fixed a hearing for 29, 30 and 31 January 1997. On 28 November 1996 the Court inquired with the competent administrative authorities about the address of a witness. On 29 and 30 January 1997, at the hearing, the Court admitted for joint examination six civil claims submitted by relatives of the victims, heard the applicant and 27 witnesses. Some of the witnesses refused to answer certain questions. Counsel for the applicant requested the collection of additional evidence. The hearing was adjourned until 10 March 1997 when the court heard 6 witnesses and 2 experts. The Court again adjourned the hearing because of the failure of certain witnesses to appear and also in view of the request supported by the applicant’s lawyer for the appointment ballistic experts. This was apparently related to the divergence in the testimonies given by the applicant and Mr G. The applicant claimed inter alia that Mr G. had shot one of the victims during the chase, at a moment when the cars had still been in motion, whereas Mr G. claimed that the applicant had shot all the victims from a static position. The hearing resumed on 13 May 1997 when the Court heard the applicant, the experts and 5 witnesses. The Court adjourned the hearing as two witnesses had not appeared. A warrant for the arrest of one of them had been issued, but his whereabouts had remained unknown. On 27 June 1997, acting in camera, the Court ordered the admission in evidence of several objects. The hearing resumed on 9 September 1997. At that hearing Mr G. partially altered his testimony. The Court adjourned the hearing until 6 November 1997. By letter of 23 September 1997 the applicant requested the examination of two additional witnesses. On 6 October 1997 he requested to be examined with the use of a “lie-detector”. This request was refused. On 6 November 1997, at the resumed hearing, the Court heard a police officer who participated at the applicant’s questioning during the first days after his detention and a shepherd, who was an eye-witness of the events. The applicant also gave additional testimony. Two other witnesses did not appear, the efforts to locate one of them having been fruitless. The Court decided that the questioning of one of the witnesses which had not appeared was essential and listed the case for a hearing on 4 March 1998. The Court also accepted the request of the prosecution for the questioning of an anonymous witness. On 4 March 1998 the hearing was adjourned until 6 and 7 May 1998 as the prosecutor had fallen ill and also because he had been unable to secure the attendance of the anonymous witness requested by him. In April 1998 Mr G, the witness who had been with the applicant during the shooting on 22 April 1995, was murdered. According to the applicant, in whose submission Mr G. was the person who had shot the three victims on 22 April 1995, Mr G. found his death when he visited another witness with the intention to threaten him. The Government have not commented. On 6 May 1998 the Court heard one anonymous witness and another witness. The anonymous witness stated, inter alia, that he feared for his life and declined to name certain persons in his testimony. The applicant submits he has discovered the identity of the anonymous witness. The other witness who testified on 6 May 1998 altered his testimony given at the preliminary investigation, explaining that his previous version of the facts had been dictated to him by Mr G. who had threatened him and beaten him on two occasions in 1995. At the close of the hearing the applicant’s lawyer and the civil plaintiffs requested the examination of additional witnesses. The Court granted these requests and adjourned the hearing until 29 and 30 June 1998, when it was again adjourned. The parties have not substantiated whether the Court examined any evidence at the hearing on 29 and 30 June 1998. The hearing resumed on 28 October 1998. On that date the trial re-commenced as one of the lay judges had passed away and no reserve lay judge had been appointed. On 28 and 29 October 1998 the new composition of the Vratsa Regional Court examined several witnesses and adjourned the hearing. 4. Decisions on the continuation of the applicant’s detention Following the applicant’s detention on remand on 27 April 1995 and until the first indictment his detention was confirmed by the Regional Prosecutor’s Office and by the Chief Public Prosecutor’s Office by decisions dated 7 July 1995, 14 November 1995, 20 November 1995 and 5 January 1996. The decisions of 27 April 1995 and 14 November 1995 stated that there was a danger of absconding, obstructing justice and re-offending. The decision of 20 November 1995 stated that there were no grounds justifying release. The parties have not substantiated the reasoning of the remaining decisions. On 10 April 1996 a judge at the Vratsa Regional Court confirmed the applicant’s detention. Following the referral of the case back to the prosecution authorities, the detention was confirmed by their decisions of 5 June 1996, 8 July 1996 and 6 October 1996. The decision of 5 June 1996 did not contain any reasoning. The decision of 8 July 1996 stated that the applicant’s request to be released for lack of sufficient proof against him was unfounded as his detention was in conformity with the Code of Criminal Procedure. The reasoning of the decisions of 10 April and 6 October 1996 has not been substantiated. During the applicant’s trial his detention on remand was confirmed by the Vratsa Regional Court on 15 November 1996, 21 January 1997, 30 January 1997, 10 March 1997, 13 May 1997, and 9 September 1997. The decision of 21 January 1997 was in the form of a letter which informed the applicant that his detention was lawful as he was detained by decision of the Regional Prosecutor’s Office, which had been subject to appeal. The decision of 30 January 1997 stated that the applicant could not be released in view of the charges against him. The decision of 9 September 1997 stated that the new legislation referred to by the applicant concerned only time-limits on pre-trial detention and was therefore inapplicable. The Court further stated that in the case before it the accusation concerned a serious wilful crime and that therefore there were no grounds for release on bail. The reasoning of the remaining decisions confirming the applicant’s detention has not been substantiated. Some of the above decisions were taken ex officio whereas others were in response to the applicant’s requests for release. During the preliminary-investigation stage of the proceedings he applied for release at least in October 1995, and in July, October and November 1996. Following the commencement of the trial in November 1996 the applicant requested his release in December 1996, in January, March, May, September and December 1997 and in October 1998. The parties have not substantiated the decisions taken on the latter two requests. The minutes of the hearing of 6 May 1998 record the following words of the applicant’s lawyer: “In this respect I would request that ... Mr P. ... be summoned as a witness. I would ask for his summoning through the district police. I would ask for leave to submit later the exact address of this witness. I make all these requests after consultation with my client. With a view to avoid any suspicion about manipulation on his part, he wishes to underline that he does not insist on [release] and for that reason asks that the witnesses be summoned [by the court].” B. Relevant domestic law and practice Provisions of the Code of Criminal Procedure (Наказателно процесуален кодекс), as in force at the relevant time: Section 152 §§ 1 and 2, as in force until 4 June 1995, provided as follows: "(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment. (2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ..." Section 152 §§ 1 and 2, as in force after 4 June 1995, provide as follows: "(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime. (2) In the cases referred to in paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.” According to Section 93 § 7 of the Penal Code (Наказателен кодекс) "serious" is a crime punishable by more than five years’ imprisonment. The relevant part of Section 152 §§ 3 and 5, as in force between 4 June 1995 and August 1997, provided as follows: “(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person, or where [the accused is a recidivist] ... ... (5) The detained person shall immediately be provided with the opportunity to file an appeal to the competent court against his [detention on remand]..." In August 1997 the text of paragraph 3 of Section 152 was replaced by a provision limiting the length of pre-trial detention. These limits do not apply in respect of detention after the commencement of the trial.
| 0
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train
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001-84935
|
ENG
|
LTU
|
GRANDCHAMBER
| 2,008
|
CASE OF RAMANAUSKAS v. LITHUANIA
| 1
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Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award
|
András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Stanislav Pavlovschi
|
9. The applicant is a Lithuanian national who was born in 1966 and lives in Kaišiadorys. 10. He formerly worked as a prosecutor in the Kaišiadorys region. 11. The applicant submitted that in late 1998 and early 1999 he had been approached by AZ, a person previously unknown to him, through VS, a private acquaintance. AZ had asked him to secure the acquittal of a third person and had offered him a bribe of 3,000 United States dollars (USD) in return. The applicant had initially refused but had later agreed after AZ had reiterated the offer a number of times. 12. The Government submitted that VS and AZ had approached the applicant and negotiated the bribe with him on their own private initiative, without having first informed the authorities. They alleged that AZ had suspected the applicant of having accepted bribes in the past. 13. On an unspecified date AZ, who was in fact an officer of a special anti-corruption police unit of the Ministry of the Interior (Specialiųjų tyrimų tarnyba – “the STT”), informed his employers that the applicant had agreed to accept a bribe. 14. On 26 January 1999 the STT applied to the Deputy Prosecutor General, requesting authorisation to use a criminal conduct simulation model (“the model” – see paragraph 32 below). The request stated: “Senior Commissioner [GM], Head of the Operational Activities Division of the [STT], having had access to information concerning [the applicant’s] criminal conduct, has established that [the applicant] takes bribes since he has agreed to assist a defendant, [MN], in return for payment. In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will hand over 12,000 litai, or the equivalent in foreign currency if required. Implementation of [the model] will require [AZ] to simulate criminal acts punishable under Articles 284 and 329 of the [Criminal Code]. With reference to section 11 of the Operational Activities Act ..., the undersigned requests the Deputy Prosecutor General to authorise the criminal conduct simulation model for a period of one year. This request is based on the information obtained during the preliminary inquiry.” 15. On 26 January 1999 the STT sent a letter to the Deputy Prosecutor General outlining the model as follows: “[STT] officials have collected operational information attesting that [the applicant] takes bribes. In implementing the criminal conduct simulation model, which is intended to establish, record and put an end to [the applicant’s] unlawful acts, an STT official [AZ] will simulate the offences of offering a bribe and breaching currency and securities regulations. In view of the above, and in accordance with section 11 of the Operational Activities Act, I hereby request you to authorise the criminal conduct simulation model and thus to exempt [AZ] from criminal responsibility for the offences under Articles 284 and 329 of the [Criminal Code] which are intended to be simulated. [The model] will be implemented by STT officials on the basis of a separate operational action plan. Implementation of [the model] will be financed by STT resources.” 16. On 27 January 1999 the Deputy Prosecutor General gave the required authorisation by countersigning and placing his official seal on the letter in question. This document constituted the final version of the model. 17. On 28 January 1999 the applicant accepted USD 1,500 from AZ. 18. On 11 February 1999 AZ gave the applicant a further USD 1,000. 19. On the same date the Prosecutor General instituted a criminal investigation in respect of the applicant for accepting a bribe, an offence punishable under Article 282 of the Criminal Code in force at that time. 20. On 17 March 1999 the Prosecutor General dismissed the applicant from his post as a prosecutor on grounds relating to corruption. Referring to the relevant provisions of the Prosecuting Authorities Act, the Prosecutor General stated that the applicant had been dismissed for a disciplinary offence and for activities discrediting the prosecuting authorities. 21. On an unspecified date the pre-trial investigation was concluded and the case was referred to the Kaunas Regional Court. During the trial the applicant pleaded guilty but alleged that he had succumbed to undue pressure from AZ in committing the offence. 22. On 18 July 2000 the Deputy Prosecutor General authorised a judge of the Kaunas Regional Court to disclose the details of how the model had been implemented “provided that this [did] not harm the interests” of the individuals and authorities involved in the operation. 23. On 29 August 2000 the Kaunas Regional Court convicted the applicant of accepting a bribe of USD 2,500 from AZ, in breach of Article 282 of the Criminal Code then in force, and sentenced him to nineteen months and six days’ imprisonment. The court also ordered the confiscation of his property in the amount of 625 Lithuanian litai (LTL). It found it established, firstly, that AZ had given the applicant the bribe during their meetings on 28 January and 11 February 1999, in return for a promise that the applicant would intervene favourably in a criminal case against a third person and, secondly, that AZ had entered into contact and negotiated with the applicant through VS. 24. The court’s conclusions were mainly based on the evidence given by AZ and on secret recordings of his conversations with the applicant. The court had also examined AP, a prosecutor working in the same regional office as the applicant, whose evidence had not gone beyond confirmation that the applicant had dealt with the criminal case against the third person (MN) indicated by AZ. VS was not summoned to appear at the trial as his place of residence was unknown, but a statement by him, which had been recorded by the pre-trial investigators, was read out in court. However, the Kaunas Regional Court did not take it into account in determining the applicant’s guilt. The court’s judgment did not contain any discussion of the authorisation and implementation of the model. 25. On 26 October 2000 the Court of Appeal upheld the judgment on an appeal by the applicant, finding that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence. 26. On 23 November 2000 the applicant lodged a cassation appeal. Relying in particular on the Constitutional Court’s decision of 8 May 2000 (see paragraph 34 below), he argued that there were no statutory provisions allowing the authorities to incite or provoke a person to commit an offence. In that connection, he submitted that on several occasions he had unsuccessfully requested the first-instance and appeal courts to consider the influence exerted by AZ and VS on his predisposition to commit the offence. He further complained that the lower courts had not taken into account the fact that AZ was a police officer and not a private individual. He argued that AZ had incited him to accept the bribe. Furthermore, he stated that the authorities had had no valid reason to initiate an undercover operation in his case and that they had overstepped the limits of their ordinary investigative powers by inducing him to commit an offence. He also submitted that VS had not been examined during the trial. 27. On 27 February 2001 the Supreme Court dismissed the applicant’s cassation appeal in a decision which included the following passages: “There is no evidence in the case file that [the applicant’s] free will was denied or otherwise constrained in such a way that he could not avoid acting illegally. [AZ] neither ordered [the applicant] to intervene in favour of the person offering the bribe, nor did he threaten him. He asked him orally for help in securing the discontinuation of proceedings [against the third person] ... K. Ramanauskas understood that the request was unlawful ... [and] the Regional Court was therefore correct in finding him guilty ... [The applicant] contests the lawfulness of [the model] ..., stating that the case discloses a manifest example of incitement (kurstymas) by the officers of the special services to accept the bribe ... [He submits that, by law], authorisation to simulate a criminal act cannot be given in the absence of evidence of the preparation or commission of an offence. Therefore, in his view, such a procedure cannot pursue the aim of inciting a person or persons to commit a crime. If the model were used for that purpose, it would be unlawful [and] the information thereby obtained could not be admitted in evidence ... [The] model cannot be authorised and implemented unless a person has planned or started to commit an offence, evidence of which should be submitted to a prosecutor ... It appears from the case file that [the authorities] were contacted by [VS] and [AZ] after [their initial] meetings with K. Ramanauskas, during which he had agreed in principle that he would perform the requested actions for USD 3,000 ... Accordingly, in authorising the use of the model, [the authorities] merely joined a criminal act which was already in progress. ... The case file contains no evidence that [VS] is an employee of the special services ... [AZ] works at the STT as a police driver ... but this does not mean that he is prohibited from acting in a private capacity. There is no evidence that [VS] and [AZ] negotiated with K. Ramanauskas on police instructions. It has, however, been established that [VS] and [AZ] handed money to him on the police’s orders. The court considers that provocation (provokacija) to commit a crime is similar but not equivalent to incitement (kurstymas) ... Provocation is a form of incitement consisting in encouraging a person to commit an offence ... entailing his criminal responsibility so that he can then be prosecuted on that account. While such conduct is morally reprehensible, the term ‘provocation’ is not used either in criminal or procedural law or in the Operational Activities Act of 22 May 1997 ... From a legal standpoint, provocation does not constitute a factor exempting from criminal responsibility a person who has thereby been induced to commit an offence ... Since the case file contains contradictory evidence as to the conduct of [VS] and [AZ] before the criminal conduct simulation model was authorised, it is difficult to establish who was the instigator (iniciatorius) of giving and accepting the bribe, or, in other words, who incited whom to give or accept the bribe. [VS] ... stated that, after he had contacted K. Ramanauskas to ask him to intervene in securing the discontinuation of the criminal case [against the third person], K. Ramanauskas had been the first to say that he could settle the matter for USD 3,000. For his part, [AZ] ... stated that K. Ramanauskas had said that the discontinuation of the case would cost USD 3,000. In his testimony K. Ramanauskas alleged that [VS] had asked him if USD 3,000 would be enough to ensure that the case was discontinued. In these circumstances, it cannot be said with any certainty who was the instigator of the bribery, nor can it be inferred that [VS] and [AZ] incited K. Ramanauskas to accept the bribe. Furthermore, there is no reason to conclude that [VS] and [AZ] provoked the offence committed by K. Ramanauskas in accepting the bribe. It can only be said unequivocally that the initiative (iniciatyva) to apply to K. Ramanauskas in order to have the case [against the third person] discontinued came from [AZ]. However, the court considers that the answer to the question whether a person has actually induced (palenkė) or otherwise incited (sukurstė) another to offer or accept a bribe is of no consequence as far as the legal classification of [the applicant’s] conduct is concerned. Incitement (kurstymas) to commit an offence is one of the various forms of complicity. Under the branch of criminal law dealing with complicity, incitement is a form of conspiracy. A person who commits an offence after having being incited to do so incurs the same criminal responsibility as a person who acts of his own volition ... Even assuming that K. Ramanauskas was incited by [VS] and [AZ] to accept a bribe, it must be emphasised that the incitement took the form of an offer, and not of threats or blackmail. He was therefore able to decline (and ought to have declined) the illegal offer ... It follows from the testimony of K. Ramanauskas that he understood the nature of the acts he was being asked to carry out, and accepted [the bribe] of his own free will ... At the same time it must be noted that it is a specific feature of bribery as an offence that one side is necessarily the instigator (kurstytojas). A State official soliciting a bribe is an instigator within the meaning of Article 284 [of the Criminal Code then in force – ‘the CC’] in that he incites (kursto) another to pay him a bribe, in breach of that Article. [A person] offering a bribe to a State official is necessarily an instigator within the meaning of Article 282 of the CC since, by making the offer, he incites the official to accept a bribe, that is, to commit the offence provided for in that Article ... Both the person giving and the person accepting a bribe exercise their free will ... and may therefore choose between possible forms of conduct. A person who intentionally chooses the criminal option while having the possibility of resisting the incitement rightly incurs criminal responsibility, regardless of the outside factors that may have influenced his choice ...” 28. On 27 March 2001 the applicant began serving his prison sentence. He remained in prison until 29 January 2002, when he was released on licence. 29. Furthermore, the prohibition on his working in the legal service was lifted in July 2002. In January 2003 his conviction was expunged. 30. The Criminal Code applicable at the material time punished the acts of accepting a bribe (Article 282), offering a bribe (Article 284) and breaching currency and securities regulations (Article 329). 31. Article 18 of the Criminal Code in force at the time and Article 24 of the present Criminal Code (in force since 1 May 2003) provide that incitement is one of the possible forms of complicity in an offence and is punishable alongside other forms of assistance (aiding and abetting, organising, executing) in the commission of an offence. These provisions define an instigator (kurstytojas) as a person who induces (palenkė) another to commit an offence. The term kurstymas (which can also be translated as “incitement” or “instigation”) is normally used in domestic legal doctrine to define the notion of complicity. 32. The Operational Activities Act (Operatyvinės veiklos įstatymas) was enacted in 1997 and remained in force until 27 June 2002. Section 2(12) of the Act defined a “criminal conduct simulation model” (Nusikalstamos veikos imitacijos elgesio modelis) as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual. Section 4(2) of the Act authorised the initiation of “operational activities” within the meaning of the Act where: (a) the authorities did not know the identity of an individual who was preparing to commit or had committed a serious offence; (b) the authorities had obtained “verified preliminary information” about a criminal act; (c) the authorities had obtained “verified preliminary information” about a person’s membership of a criminal organisation; (d) the authorities suspected activities by foreign secret services; or (e) an accused, defendant or convicted person had absconded. Section 7(2)(3) of the Act provided that the authorities could have recourse to a model only in one of the above scenarios, and then only on condition that the requirements of sections 10 and 11 of the Act were satisfied. Sections 10 and 11 of the Act empowered the Prosecutor General or his deputy to authorise the use of a criminal conduct simulation model on an application by the police or the investigative authorities. The application for authorisation had to include, among other things, a reference to the limits of the conduct intended to be simulated (that is, the legal characterisation under a specific provision of the Criminal Code of the actions to be taken) and the purpose of the operation, including its interim and ultimate aims. Section 8(1)(3) of the Act required the authorities to protect persons from active pressure to commit an offence against their own will. Section 13(3) of the Act afforded the right to contest the lawfulness of evidence obtained by means of special techniques. 33. In the proceedings which gave rise to the case of Pacevičius and Bagdonas v. Lithuania (no. 57190/00, struck out of the Court’s list of cases on 23 October 2003), the Court of Appeal gave judgment on 29 April 1999, holding, inter alia: “Section 2 of the Operational Activities Act defines [the criminal conduct simulation model] as a set of actions entailing the elements of an offence, authorised with a view to protecting the best interests of the State, society or the individual. ... The model may be authorised only for operations by [the police] and does not apply to individuals who commit offences. The request [by the police for authorisation of the model in this case] referred to the aim of the intended operation, namely identification of all persons involved in a [human] trafficking network. Of course, the [police] officers could not foresee who would take part in this crime ... One of the aims of [the prosecution] in authorising the model was to establish the identities of members of a criminal organisation.” In a judgment of 12 October 1999 in the same case, the Supreme Court held as follows regarding the use of police undercover agents: “[The applicants] were not aware of the ongoing operation at the time they committed the offence. They were convinced that they were trafficking persons who had illegally crossed the Lithuanian border. As Article 82-1 of the Criminal Code provides that the offence in question is committed where direct intent has been established, [the applicants’] error as to the nature of the act they were committing is of no relevance to the legal classification of their conduct. Since they were convinced that they were trafficking [human beings], their acts fell objectively within the scope of the offence defined in Article 82-1 ... Their conduct was therefore rightly classified as a completed offence. The authorisation given to the authorities [to use the model] served the sole purpose of legitimising the actions of the police officers taking part in the trafficking.” 34. On 8 May 2000 the Constitutional Court ruled that the Operational Activities Act was generally compatible with the Constitution. It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime. It emphasised that the use of clandestine measures, as such, was not contrary to the European Convention on Human Rights, or indeed the Constitution, as long as such measures were based on legislation that was clear and foreseeable in effect and were proportionate to the legitimate aims pursued. The Constitutional Court found that the Act provided a clear definition of the scope and procedure for the use of various forms of operational activities, including the model. Referring in particular to the Teixeira de Castro v. Portugal case (9 June 1998, Reports of Judgments and Decisions 1998-IV), the Constitutional Court emphasised that a criminal conduct simulation model could not be used for the purpose of incitement (kurstoma) or provocation (provokuojama) to commit an offence that had not already been initiated. It further held that this investigative technique did not allow officials to incite the commission of an offence by a person who had abandoned plans to commit the offence. It added that, by authorising and implementing the model, the investigative authorities and their undercover agents were restricted to “joining criminal acts that [had] been initiated but not yet completed”. The Constitutional Court emphasised that it was for the courts of ordinary jurisdiction dealing with allegations of incitement or of other forms of abuse of the model to establish in each particular case whether the investigating authorities had gone beyond the limits of the legal framework within which the model had been authorised. The Constitutional Court also stated that authorisation of the model did not amount to a licence for a police officer or third person acting as an undercover agent to commit a crime but simply legitimised – from the point of view of domestic law – the acts which the agent might be required to carry out in simulating an offence. The main aim of operational activities, including the model, was to facilitate criminal investigations, and on that account they came within the sphere of competence of both the prosecuting authorities and the courts. Accordingly, the model did not require judicial authorisation but simply authorisation by a prosecutor. The Constitutional Court further noted that secret audio and video recordings of conversations taking place in the context of operational activities under the Act were not subject to judicial authorisation and that this was compatible with the Constitution. Under section 10(1) of the Act, only wiretapping and surveillance techniques using stationary devices required a court order. 35. The Council of Europe’s Criminal Law Convention on Corruption (ETS no. 173, 27 January 1999) provides in Article 23 that each party is to adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, to enable it to facilitate the gathering of evidence in this sphere. The explanatory report on the Convention further specifies that “special investigative techniques” may include the use of undercover agents, wiretapping, interception of telecommunications and access to computer systems. Article 35 states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters. 36. The Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS no. 141, 8 November 1990) provides, in Article 4, that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto. 37. The use of special investigative techniques, such as controlled deliveries in the context of illicit trafficking in narcotic drugs, is also provided for in Article 73 of the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at the common borders, signed in Schengen on 19 June 1990.
| 1
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train
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001-110823
|
ENG
|
RUS
|
CHAMBER
| 2,012
|
CASE OF YEVGENIY KUZMIN v. RUSSIA
| 4
|
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Trial within a reasonable time)
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Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
|
5. The applicant was born in 1982 and lives in Mariinsk, Kemerovo Region. 6. On 8 September 2003 the applicant was arrested on suspicion of aggravated assault and causing death by negligence in order to extract a confession from a suspect. 7. On 10 September 2003 the Mariinsk Town Court of the Kemerovo Region (“the Town Court”) ordered that the applicant be placed in detention. The court noted, in particular, that the applicant was suspected of a particularly serious criminal offence and that, being a police officer, he could use his professional experience in order to influence witnesses and obstruct the investigation. The decision was upheld on appeal by the Kemerovo Regional Court (“the Regional Court”) on 22 September 2003. 8. On 31 October 2003 the Town Court extended the applicant’s pre-trial detention until 29 November 2003, stating that he was charged with serious and particularly serious offences and that, if at liberty, he could obstruct the establishment of the truth and influence witnesses. On 4 December 2003 the Regional Court upheld that decision on appeal. 9. According to the applicant, on 29 November 2003 – the last day of the period of his pre-trial detention authorised by the Town Court in its decision of 31 October 2003 – the authorities of a detention centre where he was being held at that moment refused to release him with reference to a letter of the Mariinsk Town prosecutor stating that on 28 November 2003 the file of his criminal case had been sent to a court. In the applicant’s submission, the case file was not in fact sent to the court until 1 December 2003. 10. On 7 December 2003 the Town Court scheduled a hearing in the applicant’s case and ordered that the applicant remain in detention. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision. 11. On 16 December 2003 the Town Court ordered that the case file be returned to the investigating authorities so that the applicant would have an opportunity to study it. It also stated that the preventive measure applied in respect of the applicant “should remain the same”. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision. 12. On 22 December 2003 the Town Court scheduled a hearing in the applicant’s case and ordered that he remain in detention. It did not specify the time-limit for the applicant’s detention, nor did it give any reasons for that decision. 13. By a decision of 26 May 2004 the Town Court extended the term of the applicant’s detention pending trial until 1 September 2004. It referred to the applicant’s personality, the fact that he was charged with serious and particularly serious criminal offences and the fact that he had pleaded not guilty, which, in the court’s opinion, suggested that he might obstruct the establishment of the truth, if released. 14. On 19 July 2004 the Town Court further extended the applicant’s pre-trial detention until 1 December 2004, relying on the same reasons as those indicated in the decision of 26 May 2004. That decision was upheld on appeal by the Regional Court on 7 September 2004. 15. By a judgment of 22 November 2004 the Town Court convicted the applicant as charged and sentenced him to five years and six months’ imprisonment. That judgment was upheld on appeal by the Regional Court on 22 March 2005. 16. At some point the applicant attempted to have criminal proceedings instituted against the Mariinsk Town prosecutor who, according to him, had provided the authorities of a detention centre where he had been held at the material time false information stating that the file of his criminal case had been sent to a court on 28 November 2003, whereas in reality it had not been sent there until 1 December 2003. The applicant complained that on the basis of that false information, he had remained in detention after 29 November 2003, when the term of his pre-trial detention established in the court order of 31 October 2003 had expired. 17. On 28 June 2005 the Tsentralny District Court of Kemerovo rejected the applicant’s complaint against the decision of the prosecutor’s office of the Kemerovo Region to dispense with criminal proceedings against the Mariinsk Town prosecutor. This decision was upheld on appeal by the Regional Court on 18 August 2005. The courts confirmed that the prosecutor’s office’s decision was lawful and well-founded, since there was no evidence of any criminal offence in the actions of the official in question, as he had not breached any provisions of domestic criminal law, or law on criminal procedure, and there was no evidence of any unlawfulness of the applicant’s detention during the period complained of. 18. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001). 19. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). 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). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112). 20. The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage. 21. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum period for detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge 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). 22. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category of “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, 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
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train
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001-72271
|
ENG
|
FIN
|
ADMISSIBILITY
| 2,006
|
IGNATIUS v. FINLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Antero Ignatius, is a Finnish national, who was born in 1946 and lives in Espoo. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The applicant’s clients were suspected of, inter alia, alleged dishonesty as debtors in respect of a company that was in the process of being wound-up. However, on 22 September 1994 the public prosecutor decided not to bring charges against them. Meanwhile in early 1994, the company and the tax authorities brought a compensation claim against the applicant’s clients before the District Court (käräjäoikeus, tingsrätten) of Helsinki. In May 1994 before the court, the applicant in his capacity as counsel presented a document according to which he had, acting for his clients, made a report to the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) on the official receiver of the above company and two tax officials, X and Y, accusing the two last-mentioned of having committed aggravated abuse of office relating to the company’s taxation. On 10 November 1994 the District Court rejected the compensation claim. The judgment was upheld by the higher courts. Subsequently, the official receiver and X and Y reported the applicant to the police alleging libel. On 8 May 1996 the public prosecutor charged the applicant with three counts of libel. On 10 March 1999 the District Court, having held an oral hearing, convicted him as charged and sentenced him to pay a fine and ordered him to pay damages and legal costs. The applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten). On 17 and 18 January 2001 the court held an oral hearing. On 15 November 2001 the court rejected the charges concerning the alleged libel of the wound-up company’s official receiver, reduced the sentence to a fine amounting to FIM 3,480 (EUR 585) and reduced the damages to FIM 20,000 (EUR 3,363). The applicant was ordered to pay the legal costs of X and Y amounting to FIM 53,686 (EUR 9,029). The court thus upheld the conviction insofar as the District Court had found the applicant guilty of having libelled the tax officials by accusing X of having brought considerable pressure on the tax inspection unit with a view to obtaining an unlawful tax assessment and to furthering the commission by the official receiver of certain unlawful acts, for instance, as regards the obtaining of an unreasonably large fee from the company. The applicant was found to have libelled Y by accusing him of having furthered the commission by the official receiver and X of some unlawful acts. As to the alleged libel of the official receiver, the court found that the applicant had had well-founded reasons to make the allegations in question. The court noted that the public interest required that there be a wide freedom to express criticism in judicial proceedings. It had been the applicant’s fundamental right to express criticism on behalf of his clients in the above proceedings. As to the tax officials in question, the court considered that in their capacity as civil servants they were expected to tolerate criticism directed at their exercise of powers. Nonetheless, the case should be assessed in a different manner when it was alleged that a civil servant had committed an aggravated offence, which was a particularly contemptible offence and one which could lead to a severe sentence and dismissal. The court also noted that the more serious an allegation, the more care must be exercised to ensure the accuracy of it. In the present case, the applicant had not put forward any grounds for his allegations against X and Y. On 16 May 2002 the Supreme Court refused the applicant leave to appeal. A person who spreads false information or a false insinuation about another person conducive to causing damage or suffering to that person, or subjecting that person to contempt, or who makes a derogatory comment about another otherwise than in a manner referred to above shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months. Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to above (section 9 (531/2000) of the Penal Code).
| 0
|
train
|
001-88541
|
ENG
|
GBR
|
CHAMBER
| 2,008
|
CASE OF GRAYSON AND BARNHAM v. THE UNITED KINGDOM
| 2
|
No violation of Art. 6-1;No violation of P1-1
|
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
|
6. On 23 January 2002 the applicant and a co-defendant were convicted with intent to supply over 28 kilograms of pure heroin, which was seized by the police at the time of arrest. The heroin was assessed to have a wholesale value in excess of GBP 1.2 million and a street value in excess of GBP 4 million. The following day the applicant was sentenced to 22 years’ imprisonment. 7. On 1 July 2002, after considering written and oral submissions from the applicant and the prosecution, the judge made a confiscation order under the Drug Trafficking Act 1994 (“the 1994 Act”: see paragraphs 20-22 below). He held that the applicant had benefited from drug trafficking. In assessing the amount of the benefit the judge took into account, inter alia, the following sums: GBP 18,000 cash found on the applicant at the time of his arrest; GBP 13,000 that the applicant had paid to his brother when a business partnership between them came to an end; GBP 21,000 that he had spent, in cash, on buying two cars; a further GBP 8,000 which he had spent on another two cars; and GBP 620,445 which was the judge’s assessment of the cost to the applicant of purchasing the heroin which had led to the conviction. As regards this last sum, the judge, having heard all the evidence at trial, was satisfied that the applicant had been the principal participant in the offence and must have contributed to a large extent to the purchase of the drugs. However, to be fair to the applicant he took as his share one half of the wholesale value. The judge was further satisfied that so large a consignment would not have represented the applicant’s first venture into drug trafficking and that he had financed the purchase with the proceeds of previous drug dealing. The applicant failed to rebut this assumption. The final item of expenditure taken into account by the judge was GBP 70,000 which an associate of the applicant, who claimed to have an income of approximately GBP 40,000 a year, had paid in respect of the applicant’s legal fees. The judge found that it was the applicant’s money; that it was the proceeds of drug trafficking; and that it demonstrated that the applicant had money elsewhere he was not prepared to reveal. 8. Next, the judge examined property received by the applicant during the six-year statutory period. The largest element emerged from an analysis of 17 bank accounts which the applicant had held at one time or another. The banking records demonstrated unexplained credits to the applicant’s account in the two trading years ending April 1998 and April 2000 which exceeded the turnover of his business as recorded in the accounts by approximately GBP 153,000. During the intervening year, ending April 1999, the bank statements showed deposits at GBP 83,000 below the business trading turnover. The judge therefore considered whether it was appropriate to take the three years together but decided that this would not be correct. If the applicant had delayed banking some of his 1999 profits until the following year, one would have expected to have seen a pattern of very heavy deposits in the first part of 2000, but this was not the case. He concluded that the applicant had benefited to the amount of GBP 1,230,748.69. 9. Under the statutory scheme, once the judge had assessed the amount of benefit which the applicant had received from drug trafficking, the burden passed to the applicant to show on the balance of probabilities that his realisable assets were less than the amount of his benefit (see paragraph 23 below). The police, having investigated the applicant’s background, had found realisable assets of GBP 236,000, including the cash found on the applicant at the time of his arrest, a car and some business stock. The judge observed: “The fact that the police have traced a certain amount of property is not of itself a reason to find it is the only property available to the [applicant]. Also credibility is a real issue. I have given myself a Lucas direction [that before reliance can be placed on the fact of a person’s lying, it must be shown to be deliberate; it must relate to a material issue; the motive must be a realisation of guilt and a wish to conceal the truth rather than some other reason: R v Lucas [1981] QB 720]. This Defendant is cunning, devious and intelligent. He was increasingly unbelievable and offensive to common sense. Giving evidence he sought to mislead at every turn, wary that the truth would reveal assets he didn’t want to and that he had hidden assets prior to conviction. He has lied persistently and blatantly and his credibility is nil. He has only himself to blame if I do not accept his evidence. I am convinced that he has tried to mislead me. I do not accept that there were no other assets, so I have reached the conclusion that the appropriate order be the wholesale value of the drugs, that being £1,236,748. He has not satisfied me that his assets are less than his benefit ...” He set an additional ten years’ imprisonment to be served by the applicant if he had not paid within twelve months. 10. The applicant appealed to the Court of Appeal on the grounds, inter alia, that the trial judge should have adjourned to allow him to submit additional accountancy evidence and that it had been contrary to Article 6 of the Convention for the judge to hold that it was for the applicant to establish, on the balance of probabilities, that his realisable property was less than his benefit. Although he had been represented throughout the trial and confiscation proceedings, he was unrepresented for the appeal and put his arguments before the court in a series of letters written from prison. 11. On 18 May 2005 the Court of Appeal dismissed the appeal, although it reduced the default sentence of imprisonment from ten years, the statutory maximum, to eight years. The court held that the additional accountancy evidence which the applicant sought to have admitted did not rebut the prosecution case but in fact, to a large extent, supported it. The Court added that although the accountancy report raised a suggestion of possible double-counting by the prosecution when it came to an analysis of realisable property, that was “irrelevant, since the judge’s order did not depend upon any calculation of realisable property. It depended upon his finding that the applicant had utterly failed to demonstrate that he had not got assets equivalent to his benefit.” The Court of Appeal referred to Phillips v. the United Kingdom, no. 41087/98, ECHR 2001-VII, and observed that: “In that case the court held that the reverse onus of proof in relation to the statutory assumption at the calculation of the benefit stage is fully Convention compliant. If reverse onus is Convention compliant at the stage at which primary liability is calculated, it is plain that it is equally compliant to require of the defendant evidence to demonstrate that the order for confiscation should be less than the amount of benefit, on the grounds that he does not have enough realisable property to meet it. The level of assets available to a defendant is normally peculiarly a matter within his own knowledge. In those circumstances, this was, we are satisfied, a large confiscation order. It was, however, one which it was plainly proper for the judge to make. The judge followed the scheme of the Act in arriving at his conclusions, and in the context of a man who was caught when engaged in importing heroin which had cost well over £1 million with the prospect of a profit of approximately three times that amount, the conclusion that there were large items of unexplained expenditure and hidden assets is, in the circumstances, hardly surprising.” 12. On 16 July 2001 the second applicant was convicted of two conspiracy charges involving plans to import large consignments of cannabis into the United Kingdom. Neither importation had been successful and the whereabouts of the drugs were unknown. In the course of the trial the jury heard evidence from an undercover police officer, “Murray”, who, posing as a money launderer, had made contact with the applicant. Murray’s evidence was that the applicant had told him that his organisation was expected to receive payment of GBP 12 million, of which his personal share would be GBP 2 million, which he asked Murray to help him “launder”. 13. The applicant was sentenced to eleven years’ imprisonment, the judge describing him as the lead organiser in a sophisticated, established and internationally based drug trafficking business. 14. The confiscation proceedings commenced in January 2002, when the first hearing took place to determine the statutory benefit to the applicant from his drug trafficking operations. The applicant was legally represented. He did not give evidence but conceded through his counsel that he had benefited from drug trafficking within the meaning of the 1994 Act. On 8 February 2002, the trial judge ruled that the total benefit to the applicant was GBP 1,525,615. This sum included GBP 27,000 that the applicant had given to Murray to establish his trust; various amounts totalling GBP 59,000 which the applicant had mentioned to Murray during their conversations; a car worth GBP 11,615; GBP 65,000 which the applicant had spent on renovating his house; GBP 23,000 which the applicant had told Murray he had invested in cannabis importation; GBP 500,000 with which the applicant had purchased the consignment of cannabis which formed the basis of the first count of which he had been convicted; GBP 600,000 with which the applicant had purchased another consignment of cannabis which he had mentioned to Murray; a further GBP 240,000 which related to the cost of purchasing yet another consignment of cannabis which the applicant had discussed with Murray. The applicant did not appeal against that ruling. 15. In April 2002, the judge resumed the proceedings to assess the applicant’s realisable assets. The applicant and his wife gave evidence, to the effect that their only asset was their house in Spain, which they owned jointly. The applicant claimed to have been entirely unsuccessful in his attempts at drug dealing and to have earned a living by singing in bars. Since his conviction his wife was living with their son in England and supporting herself with a cleaning job. The defence submitted that there was no evidence capable of supporting a finding of assumed “hidden” assets and such would lead to a risk of injustice. Of the total benefit figure, it was submitted that 94.4% was expenditure and the remaining 5.6% received had been dissipated over the years of the applicant’s imprisonment in Spain and Portugal and in the United Kingdom. His car, worth GBP 11,615, had also been confiscated by the Portuguese authorities. 16. On 12 April 2002, the judge made his ruling. He explained that: “In reaching my determination I have to apply the scheme laid down by the 1994 Act, subject to ensuring from the evidence before me that in applying any reverse burden of proof there is no ascertained real or serious risk of injustice resulting from this. Essentially I have to weigh whether the evidence relied on by the defendant is both clear and cogent. In my judgment, it is not, because it fails to explain truthfully what the applicant did in relation to his drug trafficking activities.” The judge found that the applicant and his wife had lied about their activities and their sources of income. The applicant had not explained what had happened to the various consignments of cannabis he had had under his control. The judge continued: “In any event, as I do not find Mr and Mrs Barnham are truthful witnesses on material facts I am unable to accept their evidence that no cash assets exist from Mr Barnham’s substantial international drug trafficking. He has failed to explain truthfully what he did and what he did with what he earned from what he did. That has been his choice and if it leaves as it does, this Court with no clear and cogent evidence to persuade it that the benefit is not fully realisable, the responsibility for that is Mr Barnham’s and Mr Barnham’s alone. It was his choice whether he told the truth in his evidence and no-one else’s. [Counsel for the defence] relies on the lack of assets discovered by the West Yorkshire police ... It is, in my view, not surprising, particularly operating in foreign jurisdictions, that investigators find difficulty in tracing cash assets derived from drug trafficking. It is because of this, indeed, that the scheme of the 1994 Act is what it is. Whilst I accept [defence counsel’s] other submission, that the vast majority of the benefit I assessed, it was on the basis of expenditure on the drugs, that does not explain what happened in the end to those drugs upon which that sum was expended. Unless, which I do not, I was to find that Mr Barnham lived as he did in Spain for all those years, never ever successfully importing cannabis from Morocco to anywhere at all.” He made a confiscation order equal to the amount which he had assessed as the benefit, namely GBP 1,525,615, with five years, three months’ imprisonment if the applicant had not paid within 18 months. 17. The applicant appealed against the judge’s ruling regarding his realisable assets, asserting that Article 6 § 1 of the Convention applied also when the judge came to assess realisable property, and that it required the prosecution at least to make out a prima facie case of realisable assets before the burden of proof shifted to the defendant. It was asserted by the applicant’s counsel that there was a difference between cases where the prosecution had proved benefit at the first stage by evidence and cases where the benefit had been calculated through the use of assumptions. In the second type of case, the assumptions continued to have effect when calculating realisable assets. 18. In its judgment of 28 April 2005, the Court of Appeal rejected this argument, holding as follows: “In our judgment the correct approach for the court to take when dealing with confiscation proceedings at the second stage is the same whether the benefit has been proved by evidence in addition to the statutory assumptions. Once the prosecution has established the benefit there is no requirement on it to provide a prima facie case. At the second stage the burden of proof shifts to a defendant to establish, if he can, his realisable assets to the satisfaction of the court. By the second stage a defendant will know exactly how the court has determined benefit attributable to him and must prove by evidence what his realisable assets are. It is for him to show why the confiscation order should not be ‘the value of (his) proceeds of drug trafficking’. If he proves that he has no, or appreciably less, realisable assets than the amount of the benefit determined by the court the order will be made in a lesser sum. Provided the judge keeps well in mind the principle that the risk of serious injustice to the defendant must be avoided and does not just pay lip service to that principle the order will be in the amount assessed as either the amount of benefit or such other sum as the defendant shows represents his realisable assets. To hold that the prosecution must, in some way, show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the court to confiscate a criminal’s ill-gotten gains. The expression ‘hidden assets’ is indicative of the fact that the prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities.” The Court of Appeal found, however, that the judge had made an error of calculation and reduced the order to GBP 1,460,615. 19. On 6 October 2005, the Court of Appeal refused to certify a point of law of general public importance for appeal to the House of Lords concerning Article 6 of the Convention. 20. The 1994 Act set out a scheme for the confiscation of the proceeds of drug trafficking in respects of offences committed before 23 March 2003. Where all the offences charged or indicted in the proceedings were committed after that date, the 1994 Act no longer applies and instead the sentencing court will impose a confiscation order under the Proceeds of Crime Act 2002. 21. Section 2 of the 1994 Act provided that a Crown Court should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of one or more drug-trafficking offences, whom the court found to have received at any time any payment or other reward in connection with drug trafficking. 22. Under section 5 of the 1994 Act, the confiscation order had to be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant, unless the court was satisfied that, at the time the confiscation order is made, only a lesser sum could be realised. 23. At the first stage of this procedure, the onus was on the prosecution to establish that the defendant had benefited from drug trafficking. However, section 4(2) and (3) of the 1994 Act required the court to assume that any property appearing to have been held by him at any time since his conviction or during the period of six years before the date on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking, and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking. This statutory assumption could be set aside by the defendant in relation to any particular property or expenditure if it was shown by him to be incorrect or if there would be a serious risk of injustice if it were applied (section 4(4)). At the second stage of the procedure, the burden shifts to the defendant to establish that the amount that might be realised is less than the amount of benefit (see R. v. Barwick, paragraphs 24-25 below). The required standard of proof applicable throughout proceedings under the 1994 Act was the balance of probabilities (section 2(8)). 24. The appellant in R. v. Barwick ([2001] 1 Cr App R (S) 129) had, over a period of years, defrauded three women into parting with sums of money totalling in excess of GBP 500,000. He pleaded guilty to a number of offences of dishonesty. The judge made a confiscation order under the Criminal Justice Act 1988 (which set out a scheme for the confiscation of the proceeds of crimes other than drug trafficking). The benefit was assessed as the GBP 500,000 that the appellant had received from the women, adjusted to GBP 600,000 on the assumption that he would have invested it in such a way as to preserve its value against inflation at least. The police were unable to identify any significant assets held by or on behalf of the appellant or to trace where the stolen money had gone, and claimed that he must have hidden it, since he did not appear to have lived extravagantly or spent large sums of money. The appellant claimed that he had lost a considerable part by gambling, but there was no evidence to corroborate his claims. The trial judge found the appellant’s evidence to be evasive and dishonest but nonetheless decided to reduce the benefit figure by GBP 150,000 as an acknowledgement that some of the money had probably been spent over the years. The appellant appealed to the Court of Appeal, contending inter alia that the judge had been wrong to place the burden on the appellant to establish that his realisable assets were less than the amount of the benefit. 25. The Court of Appeal held that the 1988 Act made it clear that, while the burden of proving the benefit was on the prosecution, it was for the defendant to establish on the balance of probabilities that the amount that might be realised was less. The Court of Appeal observed that, as a matter of principle, “... it is likely that an offender may take steps to make the proceeds of crime difficult to trace. Once it is proved that he has received the benefit, it is pragmatic, and entirely fair to the defendant, to place upon him the onus of showing (to the civil standard) that he no longer has the proceeds or that their extent or value has diminished”. It continued: “We stress that the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise ...” 26. In R. v. Benjafield [2002] UKHL 2, the House of Lords unanimously held that the confiscation scheme under the 1994 Act was compatible with Article 6 § 1 of the Convention. In R. v. Rezvi [2002] EKHL 1 it reached a similar conclusion as regards the confiscation scheme applicable under the Criminal Justice Act 1988 to the proceeds of other types of crime. Lord Steyn, with whom the other Law Lords agreed, observed in Rezvi: “It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy. The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990. These Conventions are in operation and have been ratified by the United Kingdom. It is clear that the 1988 Act was passed in furtherance of a legitimate aim and that the measures are rationally connected with that aim ... The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective inasmuch as a persuasive burden is placed on the defendant. The Court of Appeal [2001] 3 WLR 75, 103 carefully considered this argument and ruled: ‘The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in R v Director of Public Prosecutions, Ex Kebilene, [2000] 2 AC 326, 379. This is therefore a situation where it is necessary carefully to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects: (a) It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings. (b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate ... (c) There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made. (d) There is the role of this court on appeal to ensure there is no unfairness. It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.’ (Emphasis supplied) For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not be made. The Crown accepted that this is how the court, seized with a question of confiscation, should approach its task. In my view this concession was rightly made. In agreement with the unanimous views of the Court of Human Rights in Phillips v United Kingdom (Application No 41087/98) 5 July 2001 I would hold that Part VI of the 1988 Act is a proportionate response to the problem which it addresses.” 27. The 1988 Convention, to which the United Kingdom is a party, states in Article 5 that: “1. Each Party shall adopt such measures as may be necessary to enable confiscation of: a) Proceeds derived from offences established in accordance with article 3, paragraph 1, or property the value of which corresponds to that of such proceeds; b) Narcotic drugs and psychotropic substances, materials and equipment or other instrumentalities used in or intended for use in any manner in offences established in accordance with article 3, paragraph 1. 2. Each Party shall also adopt such measures as may be necessary to enable its competent authorities to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article, for the purpose of eventual confiscation. ... 7. Each Party may consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such action is consistent with the principles of its domestic law and with the nature of the judicial and other proceedings. 8. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties. 9. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a Party.” 28. The above Convention, which entered into force in September 1993, aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).
| 0
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train
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001-22951
|
ENG
|
GRC
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ADMISSIBILITY
| 2,002
|
MOLLA HOUSEÏN v. GREECE
| 4
|
Inadmissible
|
Françoise Tulkens
|
The applicant, Mr Bachri Molla Houseïn, is a Greek national, who was born in 1950 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants. On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993. A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi. On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace. On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott. On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993. On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993. On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights. On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993. On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him. On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties. On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following: – First, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code). – Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code). – Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code). The Board was fully satisfied that the applicant, “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant. On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers. On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty. On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace. Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3595/1995). On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3595/1995 of the Council of State, ordered the applicant’s dismissal as from the same date. On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1719/1996). On 4 December 1997 the Prefect ordered for the third time the applicant’s dismissal. On 16 March 1998 the applicant appealed against the Prefect’s decision of 4 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1. A hearing was set down for 18 January 2000. On that date, on the applicant’s request, the hearing was postponed for 16 May 2000. On 13 June 2000 the Administrative Court of Appeal rejected the appeal (decision no. 174/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State. The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred. On 28 December 2001 the First Instance Administrative Court of Komotini awarded the applicant EUR 4,421 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.
| 0
|
train
|
001-82370
|
ENG
|
GBR
|
CHAMBER
| 2,007
|
CASE OF ARKWELL v. THE UNITED KINGDOM
| 4
|
No violation of Art. 14+P1-1
|
Josep Casadevall;Nicolas Bratza
|
5. The applicant was born in 1957 and lives in Gloucestershire. 6. His wife died in March 1998, leaving two children born in 1984 and 1988. His claim for widows' benefits was made on 14 March 1998 and was rejected on 15 September 1998 on the ground that he was not entitled to widows' benefits because 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 security benefits were payable to widowers under United Kingdom law. 7. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.
| 0
|
train
|
001-101040
|
ENG
|
AZE
|
CHAMBER
| 2,010
|
CASE OF SAFAROVA v. AZERBAIJAN
| 4
|
Violation of Art. 6-1;Violation of P1-1
|
Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
5. The applicant was born in 1960 and lives in Baku. 6. The applicant was the owner of non-residential premises with an area of 350 square metres situated in Baku (“the Premises”). The ownership certificate relative to the Premises was delivered to the applicant on 17 July 1998 and her ownership right was duly registered in official records. 7. Since 1993 the Premises had been occupied by Police Station no. 17 of the Narimanov District Police Department (“the Police Station”). 8. The applicant wrote numerous letters to the Ministry of Internal Affairs, the Ministry of Economic Development, the Baku City Executive Authority, the Ombudsman's Office, and other public authorities, complaining of unlawful occupation of the Premises by the Police Station. In 2002 and 2003, the applicant was informed by letters from the Ministry of Internal Affairs and the Baku City Executive Authority that the Police Station would vacate the Premises as soon as it was provided with other premises by the Ministry of Economic Development. 9. On 13 May 2003 the applicant lodged a lawsuit with the Narimanov District Court claiming that she was the lawful owner of the Premises and asking the court to order the eviction of the Police Station. 10. On 3 July 2003 the Narimanov District Court granted the applicant's request. The court held that the applicant was the lawful owner of the Premises on the basis of the ownership certificate of 17 July 1998 and that there was no legal basis for the installation of the Police Station there. Moreover, the court stated that the Ministry of Economic Development should provide the Police Station with other premises. 11. No appeals were filed against that judgment and, pursuant to domestic law, it became enforceable within one month after its delivery. 12. According to the case file, between 2003 and 2006 the Ministry of Economic Development offered the Police Station different premises. However the Head of the Police Station refused to move to those premises stating that they were not suitable for a police station. 13. On 10 November 2008 the Narimanov District Executive Authority allocated a plot of land for the construction of a building for the Police Station. 14. In 2009 the Ministry of Internal Affairs commenced an action against the applicant challenging the lawfulness of the applicant's ownership rights in respect of the Premises. On 8 April 2009 the Narimanov District Court rejected the Ministry's claim. The court found that the Ministry of Internal Affairs had no right to lodge a claim concerning the Premises, that the time-limits provided for challenging the applicant's ownership right in respect of the Premises had expired, and that the matter was res judicata as the applicant's ownership had been confirmed by the judgment of 3 July 2003. 15. On 15 April 2009 a criminal case was launched by the Ministry of Internal Affairs concerning the allegedly unlawful acquisition of the Premises by the applicant and her husband. On 17 April 2009 the Sabayil District Court authorised a search and seizure at the office of a company managed by the applicant's husband. The case file does not contain any other material concerning subsequent developments and the results of this investigation and of the criminal case. 16. Moreover, it appears from the case file that in April 2009 the State Committee for the Management of State Property lodged a civil action against the applicant alleging that her ownership had been unlawful. The case file does not contain any material on the results of this legal action. 17. As at the time of the Court's last communication with the applicant, the judgment of 3 July 2003 remained unenforced.
| 1
|
train
|
001-85230
|
ENG
|
CZE
|
ADMISSIBILITY
| 2,008
|
MAREK v. THE CZECH REPUBLIC
| 4
|
Inadmissible
|
Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
|
The applicant, Mr Pavel Marek, is a Czech and Swiss national who was born in 1950 and lives in Uznach, Switzerland. He was represented before the Court by Ms K. Veselá-Samková, 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 Government of Switzerland did not make use of their right to intervene (Article 36 § 1 of the Convention). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s parents owned a house with land in Prague 6. In 1969 the whole family failed to return from a stay in Switzerland and remained abroad without the consent of the Czechoslovak authorities. In a judgment of 25 January 1972, the Prague 6 District Court (obvodní soud) convicted in absentia the applicant’s father, his mother and himself of deserting the Republic (opuštění republiky), sentenced them to imprisonment and ordered the confiscation of all their property. On 16 May 1973 the house was sold by the Czechoslovak State to Mr and Ms B., with the right to use the land. On 31 October 1995 the applicant’s father filed an action for the restitution of the confiscated property, pursuant to the Extra-Judicial Rehabilitation Act, against Ms B. and her daughter. On 17 September 1996 he died. The rights of the applicant and his mother over his estate were confirmed in inheritance proceedings. On 18 July 1997 one of the defendants died. On 20 July 1998 the District Court stayed the restitution proceedings pending the outcome of inheritance proceedings. On 5 December 2001 the inheritance proceedings were closed. On 26 March 2002 the District Court resumed the restitution proceedings. On 20 May 2003 the court decided that the applicant could continue with the restitution case alone, his mother having died on 29 November 2002. After joining the restitution proceedings, the applicant learnt that he had been adopted seven days after his birth and that his biological parents had been of Jewish origin. He also discovered that his adoptive mother had been tortured in Nazi concentration camps and that, as a consequence, she could not have children. According to the applicant, this news caused him enormous mental suffering and distress. In a judgment of 26 January 2006 the District Court dismissed the applicant’s restitution action. On 9 February 2007 the Prague municipal Court (městský soud) upheld this judgment in respect of the merits, but quashed the District Court’s decision concerning the court fees and returned this matter to the District Court for further consideration. It appears that the restitution proceedings are still pending. 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
|
001-88325
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,006
|
KURTULMUS v. TURKEY
| 1
|
Inadmissible
| null |
The applicant, Ms Sevgi Kurtulmuş, is a Turkish national who was born in 1958 and lives in Istanbul. She was represented before the Court by Ms F. Benli, a member of the Istanbul Bar. At the material time, the applicant was an associate professor at the Faculty of Economics of the University of Istanbul. She began her career in 1982 and said that she had worn the Islamic headscarf when she obtained her doctorate in 1992 and professorship in 1996. In 1998 she was the subject of a disciplinary investigation following an allegation that she had failed to comply with the rules on dress for public servants. On 5 January 1998 she was suspended from her duties pending the outcome of the investigation. On 12 February 1998, pursuant to paragraphs 5 (g) and 9 (m) of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions (Yüksek Öğretim Kurumları Yönetici, Öğretim Elemanı ve Memurları Disiplin Yönetmeliği – “the Disciplinary Procedure Rules”), she was given a warning and declared ineligible for promotion for two years on the ground that she had wilfully and persistently failed to comply with the applicable rules, despite receiving verbal and written reminders. On 18 May 1998 the applicant was reprimanded for continuing to wear the Islamic headscarf while teaching. Finally, on 27 May 1998 she was deemed to have resigned from her post under paragraph 15 of the Disciplinary Procedure Rules, again on the ground that she had wilfully failed to comply with the Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği – “the Rules on Dress”). On 30 July 1998 she applied for an order setting aside the decision of 27 May. She submitted, inter alia, that there was no statutory basis for the measure and that the relevant rules of procedure had not been followed. On 27 April 1999 a public hearing was held, which the applicant’s counsel attended. On the same day, after deliberations, the Istanbul Administrative Court rejected the applicant’s application on the ground that the evidence in the investigation file showed that she had wilfully and persistently refused to comply with the rules on dress for public servants, despite being sent numerous reminders. It further found that the decision had been taken in accordance with the relevant procedural rules. On 17 June 1999 the applicant appealed on points of law against the judgment of 27 April 1999. She explained that, although paragraph 5 (a) of the Rules on Dress prohibited female members of staff from wearing the headscarf when performing their duties in educational institutions, the penalty prescribed by paragraph 5 (g) of the Disciplinary Procedure Rules for breaches of the Rules on Dress was a warning. Consequently, she argued that the only penalty to which she should have been liable was a warning or a reprimand and that the penalty imposed on her was unduly harsh and incompatible with the rights and freedoms protected by the European Convention on Human Rights. On 3 September 1999 Law no. 4455 came into force. It provided for public servants to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled. In a judgment of 9 December 1999, the Supreme Administrative Court ruled on the basis of Law no. 4455 that it was unnecessary to examine the merits of the applicant’s appeal on points of law since she had received an amnesty in respect of the penalties that had been imposed on her and the resulting disabilities had been annulled. However, on 16 February 2000 the applicant exercised her right under Law no. 4455 to lodge an application for orders reviving the proceedings and setting aside the judgment of 27 April 1999. She also requested a hearing. In a judgment of 27 June 2000, the Supreme Administrative Court upheld the judgment of 27 April 1999 without holding a hearing. The Court does not have any precise information on developments since the disciplinary penalties imposed on the applicant were cancelled, thereby giving her an opportunity to request reinstatement. However, the material before it indicates that the applicant, who argues that she has not received any written notification from the University, has not, in fact, requested reinstatement. Provisional section 19 of Law no. 657 on State employees (Devlet Memurları Kanunu) of 14 July 1965, which was published in the Official Gazette of 23 July 1965, requires public servants to comply with rules on dress laid down by statute, circulars or regulations. Section 125 of the Law provides that a failure by a public servant to comply with the rules will result in a warning and, in the event of a repeated breach, the “maximum penalty”. The Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği) were adopted on 17 July 1982 and published in the Official Gazette of 16 July 1982. At the material time, paragraph 5 provided: “Female members of staff Clothes shall be clean, proper, ironed and plain. Shoes shall be plain, low-heeled and polished. No head covering shall be worn on work premises; hair shall be properly brushed and gathered, and nails cut. Trousers, blouses, and sleeveless or open-necked suits are prohibited. Skirts shall not be split or less than knee-length. Open shoes (sandals) shall not be worn. Male members of staff Clothes shall be clean, proper, ironed and plain. Shoes shall be plain and polished ... No head covering shall be worn on work premises ... Male members of staff shall not wear a beard and must shave every day ... Ties shall be obligatory.” Paragraph 4 of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions sets out a list of the disciplinary penalties, namely a warning, a reprimand, suspension from administrative duties, loss of salary, ineligibility for promotion, deemed resignation and dismissal from office. Paragraph 5 (g) lays down that the penalty for failing to comply with the Rules on Dress shall be a warning and, in the event of a repeated breach, the “maximum penalty”. The Amnesty for Public Servants and State Employees (Disciplinary Penalties) Act (Law no. 4455) came into force on 3 September 1999. Section 1 provided, inter alia, that persons on whom disciplinary penalties had been imposed before 23 April 1999 would receive an amnesty and that the penalty would be expunged from their service record. Section 2 of the Act entitled those concerned to make an application within one month after the date the Act came into force for an order reviving the proceedings. Transitional section 17 of Law no. 2547 of 25 October 1990 provides: “Choice of dress shall be free in institutions of higher education, provided that it does not contravene the law.”
| 0
|
train
|
001-57500
|
ENG
|
DNK
|
CHAMBER
| 1,989
|
CASE OF HAUSCHILDT v. DENMARK
| 2
|
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 - Convention proceedings
|
C. Russo;N. Valticos
|
8. The applicant, Mr Mogens Hauschildt, who is a Danish citizen born in 1941, currently resides in Switzerland. In 1974, he established a company, Scandinavian Capital Exchange PLC ("SCE"), which traded as a bullion dealer and also provided financial services. SCE became the largest bullion dealer in Scandinavia, with associated companies in Sweden, Norway, the Netherlands, the United Kingdom and Switzerland. The applicant was appointed its managing director. 9. Over the years and until the end of 1979, difficulties arose between SCE and the Danish National Bank, the Internal Revenue Service and the Ministry of Trade. They concerned the flow of money to and from SCE and its associated companies abroad. 10. On 30 January 1980 the Internal Revenue Service forwarded a complaint to the police in which it stated that the activities of the applicant and SCE seemed to involve violations of the Danish tax laws and the Penal Code. After obtaining a warrant from a court, the police arrested the applicant, seized all available documents at the seat of the company and closed its business on 31 January 1980. 11. The applicant was brought before the Copenhagen City Court (Københavns byret) the following day and charged with fraud and tax evasion. The court directed that he should be kept under arrest for three consecutive periods of twenty-four hours; no objection was raised. On 2 February 1980, after hearing the prosecution and the defence, the City Court held that the charges were not ill-founded and remanded the applicant in custody in solitary confinement under sections 762 and 770(3) of the Administration of Justice Act (Retsplejeloven - "the Act"; see paragraphs 33 and 36 below). As a result of successive decisions, a number of which were taken by Judge Claus Larsen, Mr Hauschildt was held in detention on remand until the public trial began before the City Court on 27 April 1981 (see paragraphs 19-21 below). He also spent some time in solitary confinement (31 January to 27 August 1980). 12. During the investigation stage, the police seized further documents and property. Inquiries were also carried out in the United Kingdom, the Netherlands, Belgium, Switzerland, Liechtenstein and the United States of America. In accordance with the European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters, the judge of the City Court on several occasions authorised the prosecution to seek co-operation from other European countries in securing documents as well as in other matters (see paragraph 22 below). On 4 February 1981 the indictment, which ran to 86 pages, was served on Mr Hauschildt. He was charged with fraud and embezzlement on eight counts involving approximately 45 million Danish crowns. 13. The trial at first instance began before the City Court, sitting with one professional judge, Judge Larsen, and two lay judges, on 27 April 1981. According to the applicant, he had complained about the presiding judge before the trial, but no formal request was made on the matter. At the trial he was advised by his lawyers that section 60(2) of the Act debarred any challenge of the judge on the basis of the pre-trial decisions that he had made (see paragraphs 20-22 and 28 below). 14. In the course of over 130 court sittings at the trial the City Court heard some 150 witnesses as well as the applicant and examined a substantial number of documents. Furthermore, opinions from appointed experts, in particular accountants, were taken into consideration. The court also issued numerous orders concerning the remand in custody and solitary confinement of the applicant, the sending of commissions rogatory and other procedural matters (see paragraph 24 below). 15. The City Court, with Judge Larsen presiding, gave judgment on 1 November 1982. It found Mr Hauschildt guilty on all counts and sentenced him to seven years’ imprisonment. 16. The applicant appealed to the High Court of Eastern Denmark (Østre Landsret). This court sat with three professional judges and three lay judges. Its jurisdiction extended to both the law and the facts, and involved a trial de novo. The hearing of the appeal began on 15 August 1983. Before the appeal hearing, the applicant had raised with the presiding judge an objection against one of the judges on the ground of his involvement in a City Court decision to seize the applicant’s correspondence and assets. However, counsel for the defence refused to argue this point on the basis of section 60(2) of the Act, and Mr Hauschildt withdrew the objection. 17. On 2 March 1984 the High Court found the applicant guilty on six of the eight counts and sentenced him to five years’ imprisonment. The extensive character of the fraud was treated as an aggravating factor. On the other hand, the court took into account the fact that the applicant had been held in custody on remand since 31 January 1980, and considered this detention harsher than regular imprisonment. Mr Hauschildt was released on the same day. 18. The applicant’s subsequent application for leave to appeal to the Supreme Court (Højesteret) was rejected by the Ministry of Justice on 4 May 1984. 19. As already mentioned (see paragraph 11 above), the City Court judge had decided on 2 February 1980 to remand Mr Hauschildt in custody in solitary confinement. In the judge’s opinion, there were reasons to believe that the applicant, if at large, would abscond or impede the investigation (section 762(1) nos. 1 and 3 and section 770(3) of the Act; see paragraphs 33 and 36 below). As justification for the detention he listed the following elements: (1) the circumstance that the applicant had lived outside Denmark until 1976 and at the time of his arrest was planning to move to Sweden; (2) his economic interests abroad; (3) the importance of the case; (4) the risk of his obstructing the investigation by exerting influence on persons in Denmark and abroad. 20. In accordance with section 767 of the Act, the applicant’s continued detention on remand was subject to regular judicial control carried out at maximum intervals of four weeks. The elements set out in the initial decision of 2 February 1980, which had been taken by Judge Rasmussen, were the basis for the applicant’s detention until 10 April 1980. On 10 April the City Court judge, Mr Larsen, who was subsequently to preside over the trial court that heard the applicant’s case (see paragraph 13 above), also relied on section 762(1) no. 2 as a ground for his remand in custody (danger of his committing new crimes; see paragraph 33 below). The reason prompting that decision was the fact that the applicant had, whilst in custody, secretly communicated with his wife and asked her to remove money from certain bank accounts as well as certain personal property. Subsequently, on 30 April, the same judge ordered her detention on remand and the stopping of a letter written by the applicant. At a later stage, when ruling on 5 September 1980 on an appeal against an order of further remand in custody, the High Court referred in addition to sub-section 2 of section 762 (see paragraph 33 below), since the investigations carried out by the police at that time indicated a possible loss by the injured parties of approximately 19,5 million Danish crowns. From 24 September on, Judge Larsen also relied additionally on this sub-section. The applicant’s detention on remand continued to be based on each of the three paragraphs of sub-section (1) and on sub-section (2) of section 762 (see paragraph 33 below) until 17 August 1982 when paragraph 3 of sub-section (1) was no longer relied on. 21. As from the applicant’s arrest on 31 January 1980 and until the trial started on 27 April 1981, police investigations and his continuing detention on remand necessitated decisions to be taken by the City Court sitting with one professional judge. A total of approximately forty court sittings were held in connection with the case during this period, twenty of which were concerned with remand in custody and, from 31 January to 27 August 1980, also with the question of solitary confinement. Fifteen of these decisions were taken by Judge Larsen (10 April, 30 April, 28 May, 25 June, 20 August, 27 August, 24 September, 15 October, 12 November, 3 December and 10 December 1980 and 4 February, 25 February, 11 March and 8 April 1981). On five of these occasions he ordered prolongation of the applicant’s solitary confinement (10 April, 30 April, 28 May, 25 June and 20 August 1980). On 27 August 1980, however, he terminated the solitary confinement. 22. During this period, the City Court decided on three occasions (5 March, 16 June and 13 August), on application by the police, to request the co-operation of other countries in securing documents and in other matters (see paragraph 12 above). Two of these decisions were taken by Judge Larsen (16 June and 13 August 1980). The City Court judge was furthermore called on to rule on a number of other procedural matters such as the seizure of the applicant’s property and documents, his contacts with the press, access to police reports, visits in prison, payment of defence counsel fees and correspondence. Besides the order of 30 April 1980 to detain Mr Hauschildt’s wife on remand (see paragraph 20 above), Judge Larsen gave directions on 28 May 1980 as to the stopping of another of the applicant’s letters, on 12 November 1980 as to the seizure of a certain amount of money which allegedly belonged to the applicant, on 4 February 1981 as to a change of defence counsel, and finally on 11 March 1981 as to the applicant’s access to certain parts of the police files. These rulings were delivered at the request either of the prosecutor or of the defence counsel. 23. Mr Hauschildt brought various decisions taken by the City Court judge before the High Court sitting on appeal with three professional judges. On five occasions the High Court was called upon to inquire into the applicant’s continued remand in custody. Altogether thirteen different judges participated in these decisions, none of whom was subsequently involved in the appeal proceedings regarding conviction and sentence. The same applied to the six judges who heard appeals on other procedural matters. 24. During Mr Hauschildt’s trial, from 27 April 1981 to 1 November 1982 (see paragraphs 13-15 above), the City Court, sitting with Judge Larsen as presiding judge and two lay judges, was also required to give rulings on a number of procedural matters. In particular, the court prolonged the applicant’s detention on remand twenty-three times on the basis of section 762(1) and (2). Except on two occasions, these orders were made by Judge Larsen and, on four, he was joined by the two lay judges. Furthermore, from 2 July to 7 October 1981, the applicant was kept in solitary confinement at the request of the prosecuting authorities. Although the first order to this effect was made by another judge, Judge Larsen on two occasions prolonged the solitary confinement. In addition, on five occasions, he authorised the seeking of the co-operation of other countries. 25. The applicant entered nineteen appeals against these various rulings to the High Court. On twelve occasions, the High Court upheld the decision of the City Court concerning remand in custody. Fourteen judges participated in these judgments, none of whom was subsequently involved in the hearing of the applicant’s appeal against conviction and sentence. The applicant’s other appeals related to matters such as the appointment of defence counsel, the hearing of further witnesses, the issue of search warrants, custody in solitary confinement and travel expenses for defence counsel. Twelve different judges took part in these decisions. On 14 July 1981 three High Court judges upheld the order continuing the applicant’s solitary confinement, one of whom also sat on the court for the hearing of the applicant’s appeal against judgment. 26. According to Danish law, the applicant was still considered as being in custody on remand during the appeal proceedings (see paragraphs 16-17 above). The High Court had accordingly to review the detention at least every four weeks. Out of the nineteen renewals ordered, ten were ordered before the hearing opened, whereas the remaining nine were ordered during the sittings. With a few exceptions all decisions concerning detention on remand were adopted by the same judges as took part in the proceedings on appeal. During the hearing (15 August 1983 to 2 March 1984), the professional judges were joined by three lay judges. The above-mentioned rulings of the High Court were based on section 762(1) no. 1 and 762(2) of the Act (see paragraph 33 below). The court attached particular importance to the gravity of the charges and to the fact that the applicant had lived abroad and still had substantial economic interests abroad. 27. The applicant twice obtained leave from the Ministry of Justice to bring the issue of his continued detention on remand before the Supreme Court. On 26 January 1983 the Supreme Court upheld the decision of the High Court, while considering that the detention should also be based on section 762(1) no. 2 (see paragraph 33 below). In fact, some of the offences for which the applicant had been convicted by the City Court had been committed whilst he had been in custody on remand. On 9 December 1983 the Supreme Court directed that the detention should continue but be based solely on section 762(1) nos. 1 and 2 (see paragraph 33 below). The majority of the court found that the public interest no longer required the applicant to be kept in custody under section 762(2). 28. The challenge of a judge is governed by sections 60 to 63 of the Act: "(1) No one may act as a judge in a case where he, 1. is himself a party to the case, or has an interest in its outcome, or, if it is a criminal case, has suffered injury as a result of the criminal offence; 2. is related by blood or marriage to one of the parties in a civil case or with the accused in a criminal case, whether in lineal ascent or descent or collaterally up to and including first cousins, or is the spouse, guardian, adoptive or foster parent or adoptive or foster child of one of the parties or of the accused; 3. is married, or related by blood or marriage in lineal ascent or descent or collaterally up to and including first cousins, to a lawyer or other person representing one of the parties in a civil case or, in a criminal case, to the injured party or his representative or to any public prosecutor or police officer appearing in such a case or to the accused’s defence counsel; 4. has appeared as a witness or as an expert (syn- og skønsmand) in the case, or, if the case is a civil one, has acted in it as a lawyer or otherwise as representative of one of the parties, or, if the case is a criminal one, as a police officer, public prosecutor, defence counsel or other representative of the injured party; 5. has dealt with the case as a judge in the lower instance, or, if it is a criminal case, as member of the jury or as lay judge. (2) "In the situations mentioned in the preceding section, the judge shall, if he sits as a single judge, withdraw from sitting on the court by a decision pronounced by himself. If he sits on the court together with other judges, he shall inform the court of the circumstances which according to the preceding section may disqualify him. Likewise, the other judges on the court, whenever aware of such circumstances, are entitled and have the duty to raise the question of disqualification, whereafter the question is decided by the court, without the judge in question being excluded from taking part in the decision." "(1) The parties can not only demand that a judge withdraw from sitting in the instances referred to in section 60 but may also object to a judge hearing a case when other circumstances are capable of raising doubt about his complete impartiality. In such instances the judge, too, if he fears that the parties cannot trust him fully, may withdraw from sitting even when no objection is lodged against him. Where a case is heard by several judges, any one of them may raise the question whether any of the judges on the bench should step down on account of the circumstances described above. (2) The questions which might arise under this section shall be decided in the same manner as is laid down in section 61 in regard to the situations enumerated in section 60." "The question whether or not a judge should remain on the bench, which when raised by one of the parties in civil matters is treated as other procedural objections, should as far as possible be raised before the beginning of the oral hearing. This question may be decided without the parties having been given the opportunity to submit comments." 29. According to the Government, no case-law on section 60(2) had been established by the Supreme Court at the time when the applicant’s case was pending before the Danish courts. However, by a ruling of 12 March 1987, the Supreme Court held that if a judge has directed the remand in custody of a person charged with a criminal offence, this shall not in itself be deemed to disqualify the judge from taking part in the subsequent trial and delivery of judgment. 30. In connection with an amendment extending the application of section 762(2) (see paragraph 35 below), section 60 was amended on 10 June 1987 by the Danish Parliament. Sub-section (2) as amended now provides that "no one shall act as a judge in the trial if, at an earlier stage of the proceedings, he has ordered the person concerned to be remanded into custody solely under section 762(2), unless the case is tried as a case in which the accused pleads guilty." This amendment came into force on 1 July 1987. 31. In Denmark, the investigation is carried out by the prosecuting authorities, with the assistance of the police, and not by a judge. The functions of the police at the investigation stage are regulated by sections 742 and 743 of the Act, which provide: "(1) Information about criminal offences shall be submitted to the police. (2) The police shall set in motion an investigation either on the basis of such information or on their own initiative where there is a reasonable ground for believing that a criminal offence which is subject to public prosecution has been committed." "The aim of the investigation is to clarify whether the requirements for establishing criminal responsibility or for imposing any other sanction under criminal law are fulfilled and to produce information to be used in the determination of the case as well as to prepare the case for trial." 32. Section 746 of the Act governs the role of the court: "The court shall settle disputes concerning the lawfulness of measures of investigation taken by the police as well as those concerning the rights of the suspect and the defence counsel, including requests from the defence counsel or the suspect concerning the carrying out of further investigation measures. The decision shall be taken on request by order of the court." 33. Arrest and detention on remand are dealt with in sections 760 and 762 of the Act: "(1) Any person who is taken into custody shall be released as soon as the reason for the arrest is no longer present. The time of his release shall appear in the report. (2) Where the person taken into custody has not been released at an earlier stage he shall be brought before a judge within 24 hours after his arrest. The time of his arrest and of his appearance in court shall appear in the court transcript." "(1) A suspect may be detained on remand when there is a justified reason to believe that he has committed an offence which is subject to public prosecution, provided the offence may under the law result in imprisonment for one year and six months or more and if 1. according to information received concerning the suspect’s situation there is specific reason to believe that he will evade prosecution or execution of judgment, or 2. according to information received concerning the suspect’s situation there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or 3. (2) A suspect may furthermore be detained on remand when there is a ‘particularly confirmed suspicion’ [translation supplied by the Government of the Danish phrase saerlig bestyrket mistanke] that he has committed an offence which is subject to public prosecution and which may under the law result in imprisonment for six years or more and when respect for the public interest according to the information received about the gravity of the case is judged to require that the suspect should not be at liberty. (3) Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment (haefte) or if the deprivation of liberty will be disproportionate to the interference with the suspect’s situation, the importance of the case and the outcome expected if the suspect is found guilty." 34. Sub-section 2 of section 762 is applicable even in the absence of any of the conditions set out in sub-section 1. Section 762(2) was first inserted in the Act in 1935, following an aggravated rape case. In the Parliamentary record concerning this amendment (Rigsdagstidende, 1934-35 Part B, col. 2159), it is stated: "When everyone assumes that the accused is guilty and therefore anticipates serious criminal prosecution against him, it may in the circumstances be highly objectionable that people, in their business and social lives, still have to observe and endure his moving around freely. Even though his guilt and its consequences have not yet been established by final judgment, the impression may be given of a lack of seriousness and consistency in the enforcement of the law, which may be likely to confuse the concept of justice." 35. Section 762(2) was amended in 1987 in order to extend its application to certain crimes of violence which were expected to entail a minimum of sixty days’ imprisonment. In reply to a criticism in an editorial in the newspaper Politiken, the Danish Minister of Justice wrote on 30 December 1986: "In so far as it ... has been suggested that the Bill opens possibilities for the imprisonment of innocent persons, I find reason to stress that my proposed Bill makes it a condition that there is a particularly confirmed suspicion [the Minister’s emphasis] that the accused has committed the crime before he can be remanded in custody. Thus there has to be a very high degree of clarity with regard to the question of guilt before the provision can be applied and this is the very means of ensuring that innocent persons are not imprisoned." 36. Solitary confinement is governed by section 770(3) of the Act, which at the relevant time read as follows: "On application by the police the court may decide that the detainee shall be totally or partially isolated if the purpose of the detention on remand so requires." This provision was amended on 6 June 1984.
| 1
|
train
|
001-95959
|
ENG
|
SRB
|
CHAMBER
| 2,009
|
CASE OF VINCIC AND OTHERS v. SERBIA
| 3
|
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1
|
András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
|
5. The applicants, Ms Aleksandra Vinčić (“the first applicant”), Mr Damir Matić (“the second applicant”), Ms Dušica Obradović (“the third applicant”), Mr Aleksandar Kržić (“the fourth applicant”), Mr Ljubomir Božić (“the fifth applicant”), Mr Zoran Radonjić (“the sixth applicant”), Ms Ljiljana Savić (“the seventh applicant”), Ms Aleksandra Rosić (“the eighth applicant”), Mr Jovo Grbić (“the ninth applicant”), Mr Mirko Maljković (“the tenth applicant”), Mr Milan Vukelić (“the eleventh applicant”), Mr Jovan Milić (“the twelfth applicant”), Mr Jovan Jovanović (“the thirteenth applicant”), Mr Milutin Jovanović (“the fourteenth applicant”), Mr Nenad Jovanović (“the fifteenth applicant”), Mr Zoran Korica (“the sixteenth applicant”), Ms Dara Đorđević Halapir (“the seventeenth applicant”), Ms Vera Vasović (“the eighteenth applicant”), Mr Drago Tumbas (“the nineteenth applicant”), Mr Dobrivoje Dunjić (“the twentieth applicant”), Mr Svetozar Munćan (“the twenty-first applicant”), Mr Rade Savić (“the twenty-second applicant”), Mr Dragan Udović (“the twenty-third applicant”), Mr Milutin Milunov (“the twenty-fourth applicant”), Mr Predrag Stamenović (“the twenty-fifth applicant”), Mr Zoran Babić (“the twenty-sixth applicant”), Mr Slobodan Pejić (“the twenty-seventh applicant”), Mr Mirko Novaković (“the twenty-eighth applicant”), Mr Radoje Đukić (“the twenty-ninth applicant”), Mr Zoran Živković (“the thirtieth applicant”) and Mr Miodrag Lopičić (“the thirty-first applicant”) are all Serbian nationals. 6. The facts, as submitted by the parties, may be summarised as follows. 7. The applicants were all members of the Independent Union of Aviation Engineers of Serbia (Samostalni sindikat inženjera vazduhoplovstva Srbije). 8. Following a strike, on 28 November 2004 their union and their employer, JAT Airways, concluded an agreement whereby the latter accepted to pay all union members a certain benefit while the former promised to discontinue the strike and refrain from any legal action. 9. On 29 November 2004 the Director General of JAT Airways, a public corporation founded by the respondent State, ordered that the necessary calculations be made and the payment of the benefit be effected immediately. 10. Since this decision would appear not to have been implemented, on 7 February 2005 the applicants, as part of a group of 151 persons, filed a single civil claim against JAT Airways with the Fourth Municipal Court (Četvrti opštinski sud) in Belgrade, seeking payment of the benefit in question (ranging from several hundred up to approximately one thousand Euros, “EUR”, respectively). 11. The total number of plaintiffs subsequently dropped to 140. The Fourth Municipal Court thereafter decided to separate the proceedings for each of the remaining plaintiffs, and ordered them to re-submit their individual claims. The plaintiffs, including the applicants, complied. 12. Certain applicants were successful before the Fourth Municipal Court; others were not. However, all the applicants were unsuccessful at second-instance before the District Court in Belgrade whose decisions they received on the following dates: - the first applicant on 27 September 2006; - the second applicant on 13 July 2006; - the third and fourth applicants on 13 September 2006; - the fifth applicant on 17 November 2006; - the sixth applicant on 10 November 2006; - the seventh applicant on 4 December 2006; - the eighth applicant on 5 December 2006; - the ninth applicant on 28 November 2006; - the tenth applicant on 14 December 2006; - the eleventh applicant on 20 November 2006; - the twelfth applicant on 8 December 2006; - the thirteenth applicant on 7 December 2006; - the fourteenth applicant on 21 December 2006; - the fifteenth applicant on 21 August 2006; - the sixteenth applicant on 26 December 2006; - the seventeenth applicant on 7 February 2007; - the eighteenth applicant on 5 January 2007; - the nineteenth and twentieth applicants on 5 February 2007; - the twenty-first and twenty-fifth applicants on 7 March 2007; - the twenty-second applicant on 1 March 2007; - the twenty-third applicant on 28 March 2007; - the twenty-fourth applicant on 11 April 2007; - the twenty-sixth applicant on 5 October 2007; - the twenty-seventh applicant on 3 September 2007; - the twenty-eighth applicant on 5 September 2007; - the twenty-ninth applicant on 19 October 2007; - the thirtieth applicant on 13 June 2007; and - the thirty-first applicant on 3 September 2007. 13. In its reasoning in the applicants' cases, the District Court held, inter alia, that the Director General of JAT Airways had not been authorised to grant payment of the benefit at issue in the absence of an explicit governmental authorisation. 14. In another 23 separate cases, for the same reasons, the District Court also ruled against the plaintiffs. 15. However, in at least 17 other judgments, rendered between 31 May 2006 and 5 December 2007, the District Court decided in favour of the applicants' colleagues, notwithstanding the fact that their claims were based on the same facts and concerned identical legal issues. In its reasoning in these other cases, the District Court explained, inter alia, that JAT Airways had had to comply with the agreement of 28 November 2004, as well as the decision of its Director General of 29 November 2004. 16. On 27 September 2006 the District Court adopted a “legal opinion” (pravno shvatanje) affirming the reasoning described at paragraph 13 above. 17. On 21 November 2006 the applicants filed a request urging the Fourth Municipal Court to proceed in accordance with Article 176 of the Civil Procedure Act 2004 (see paragraph 39 below), that is to seek guidance from the Supreme Court (Vrhovni sud Srbije) on how to deal with a large number of cases, including their own, wherein the District Court had already ruled inconsistently. 18. On 27 February 2007 the Supreme Court rejected the Fourth Municipal Court's request made to this effect on 10 January 2007. In so doing, it noted, inter alia, that Article 176 was inapplicable because in a number of cases at issue the District Court had already ruled as the final instance, and stressed that it was up to the said court to harmonise its own case-law. 19. On 17 July 2008 the Constitutional Court (Ustavni sud Srbije) rejected the motion for abstract review (inicijativa za ocenu zakonitosti) filed by JAT Airways, requesting to have the agreement of 28 November 2004 and the Director General's decision of 29 November 2004 declared unlawful. The court explained that it had no jurisdiction ratione materiae given that the impugned documents could not be qualified as general acts (opšti akti) within the meaning of Article 167 § 1 of the Constitution (see paragraph 24 below). 20. In the meantime, JAT Airways lodged several separate counterclaims against the applicants, seeking that the said agreement and the Director General's decision be declared null and void. Ultimately, however, all of these claims would appear to have been rejected on various procedural grounds. 21. Dozens of separate cases such as the applicants' seem to be still pending at first or second instance. 22. Article 22 § 1 of the Constitution provided, inter alia, that everyone “shall be entitled to the equal protection of his or her rights in a suit before a court of law”. 23. This Constitution was repealed in November 2006, which is when the new Constitution, published in OG RS no. 98/06, entered into force. 24. The relevant provisions of the Constitution read as follows: “Everyone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his [or her] rights and obligations ...” The Constitutional Court shall decide about: ... 5. the compliance of general acts [opštih akata] adopted by organisations exercising delegated public powers ... with the Constitution and the laws. “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” “The Constitutional Court shall have fifteen judges who shall be elected or appointed for a period of nine years. Five judges of the Constitutional Court shall be elected by the National Assembly, another five shall be appointed by the President of the Republic, and another five shall be appointed at the general session of the Supreme Court of Cassation... The National Assembly shall elect five judges of the Constitutional Court from among ten candidates proposed by the President of the Republic, the President of the Republic shall appoint five judges of the Constitutional Court from among ten candidates proposed by the National Assembly, and the general session of the Supreme Court of Cassation shall appoint five judges from among ten candidates proposed at the general session by the High Judicial Council and the State Prosecutors' Council.” “The Constitutional Court shall adjudicate by the majority of votes cast by all judges of the Constitutional Court.” 25. In accordance with Article 9 § 3 the Constitutional Court shall be deemed constituted when two thirds of the total number of judges have been elected or appointed. 26. The relevant provisions of this Act read as follows: “The decisions of the Constitutional Court shall be final, enforceable and binding.” “The Constitutional Court shall have its Rules of Procedure ... which shall regulate, in greater detail, the organisation ... [and the functioning of the Constitutional Court] ... as well as the proceedings ... [before it] ...” “ ... [T]he Constitutional Court shall have a Registry. The organisation, the tasks, and the functioning of the Registry shall be regulated, in greater detail, by ... the Constitutional Court.” “A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law. A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant's right to a trial within a reasonable time.” “A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.” “A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...” “When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time. The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.” “... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ... If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought. The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.” “A constitutional appeal may also be lodged against ... [the individual decision or action in question] ... if this decision ... [has been adopted] ... or this action has been undertaken between the date of promulgation of the Constitution and the date of entry into force of this Act.” ... [In this case a constitutional appeal may be lodged] ... within thirty days as of the date of entry into force of this Act” “The Constitutional Court shall, within ninety days as of the date of entry into force of this Act, adopt its Rules of Procedure and ... [further regulate the organisation and functioning of its Registry] ...” The Minister of Justice shall, within ninety days as of the date of entry into force of this Act ... [regulate the composition and the operation of the Commission for Compensation] ...” 27. These Rules, inter alia, contain the necessary details as regards the processing of appeals lodged with the Constitutional Court. 28. The new Constitution of the Republic of Serbia and the Constitutional Act on its implementation were both promulgated in November 2006. 29. By 24 November 2007 two thirds of the total number of Constitutional Court judges had been elected or appointed (see paragraph 25 above). 30. The Constitutional Court Act entered into force on 6 December 2007. 31. The Rules of Procedure of the Constitutional Court, published in OG RS no. 24/08, entered into force on 15 March 2008. Minor textual corrections thereof were published in OG RS no. 27/08 of 17 March 2008. 32. By 9 July 2009 the Constitutional Court had considered several hundred appeals alleging individual human rights violations, and had found breaches in dozens of cases concerning, inter alia, access to court, detention, length of proceedings, and various procedural fairness issues (see http://www.ustavni.sud.sr.gov.yu/sudska_praksa/uzalbe.php). 33. The first decisions on the merits of the appellants' complaints, including the very first decision establishing a violation of the Constitution, had been adopted on 10 July 2008 (ibid.), and were published in OG RS no. 74/08 of 7 August 2008. 34. Where appropriate, the Constitutional Court had, in a number of cases, quashed decisions adopted by the lower courts, as well as the Supreme Court, ordered that the excessively protracted judicial proceedings be concluded as soon as possible, and held that financial compensation for the damage suffered by the appellant had been warranted. 35. By 26 May 2009 the Commission for Compensation had awarded damages in at least 4 cases where the Constitutional Court had already found a violation and held that adequate compensation was called for. 36. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights. 37. Article 12 provides that when a court's decision in a pending suit rests on the prior resolution of a preliminary legal issue, the court itself may rule on this issue, as well as the main claim, unless the relevant legislation provides otherwise. The court's decision as regards the preliminary issue, however, shall only be legally binding in respect of the ongoing judicial proceedings. 38. Article 149 provides, inter alia, that, in principle, legal costs and expenses shall be divided proportionately between the parties, based on the measure of their success in the proceedings. Should a party lose the case entirely, that party shall be obliged to pay all the legal costs and expenses incurred. 39. Article 176 provides that when there are many cases pending at first instance raising the same preliminary legal issue, the court of first instance shall, either ex officio or at one of the parties' requests, be entitled to institute separate proceedings before the Supreme Court, petitioning the latter to resolve the issue in question. The lawsuits pending at first instance shall be stayed in the meantime. 40. Articles 3 § 3, 413, 415, 417 and 418 provide that the Public Prosecutor shall, ex officio or in response to a party's specific proposal, within a period of three months, have the right to lodge a Request for the Protection of Legality against a final civil court decision, should it transpire that the decision in question was “based on the parties' unlawful dispositions” (nedozvoljeno raspolaganje stranaka), i.e. those undertaken in breach of the “binding provisions of domestic law, public order or the rules of morality” (prinudni propisi, javni poredak i pravila morala). Should the Public Prosecutor refuse to lodge a request of this sort, the party who had urged him to do so shall, within thirty days, have the right to file its own Request for the Protection of Legality with the Supreme Court. 41. Article 422.8 provides that a case which has been concluded by means of a final court decision may be re-opened, at the interested party's request, if the preliminary legal issue, within the meaning of Article 12 of this Act, was subsequently resolved in a different manner by the competent State body. Article 422.10 further provides that a case may be re-opened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue. 42. This Act entered into force in February 2005, thereby repealing the Civil Procedure Act 1977.
| 1
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train
|
001-95871
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF ZAYTSEVA v. RUSSIA
| 4
|
Violation of Article 6 - Right to a fair trial
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
5. The applicant was born in 1939 and lives in Arkhangelsk. 6. In 1975 the applicant was injured in a work-related accident. In 2004 she sued the Arkhangelsk Regional Health Department for disability benefits alleging that her current disability had resulted from that incident. 7. On 15 December 2004 the Oktyabrskiy District Court of Arkhangelsk rejected the applicant's claims. The District Court examined, among other evidence, a decision by the Medical and Labour Expert Examination Service of the Arkhangelsk Region, which indicated that the applicant's disability had been caused by the injury she sustained in 1975. 8. The applicant lodged an appeal with the Arkhangelsk Regional Court. The appeal hearing was scheduled for 17 January 2005. According to the Government, the District Court dispatched summonses to the parties, including the applicant and her representative, informing them of the date and time of the appeal hearing. According to the applicant, she did not receive the summons. 9. On 17 January 2005 the Arkhangelsk Regional Court examined the appeal and rejected it. The applicant and the representative of the Health Department were absent but the prosecutor intervened in the proceedings on behalf of the Health Department and addressed the court. The Regional Court did not examine the question whether the applicant or her representative had been duly summonsed and, if they had not, whether the examination of the appeal should have been adjourned. 10. The Code of Civil Procedure (in force as of 1 February 2003) provides that parties to the proceedings are to be summonsed to a court by registered mail with a confirmation of receipt, by a phone call or a telegram, by fax or by any other means which will secure delivery of the summons to the addressee. Summonses must be served on the parties in such a way that they have enough time to prepare their case and appear at the hearing (Article 113). 11. Summonses are to be sent by mail or by a court courier. The time when a summons is served on the addressee is to be recorded on a document which must be returned to the court by courier or by any other method used by the postal service. A judge may request a party to the proceedings to transmit a summons to another party. In that case, that person should bring to the court an acknowledgment of receipt (Article 115). 12. A summons is to be served on a person against his or her signature, on its copy, which is to be returned to the court (Article 116). 13. A civil case is to be heard in a court session with mandatory notification of all parties of the place and time of the court session (Article 155). 14. If a party to the case fails to appear at the hearing and there is no evidence that the party has been duly summonsed, the hearing is to be adjourned (Article 167).
| 1
|
train
|
001-93847
|
ENG
|
UKR
|
CHAMBER
| 2,009
|
CASE OF SEBOVA v. UKRAINE
| 4
|
Violation of Article 6 - Right to a fair trial
|
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
|
4. The applicant was born in 1947 and lives in the city of Odessa, Ukraine. 5. In February 1996 Mr I. M., the father of the applicant’s grandson, exchanged his share in the apartment in which he cohabited with his parents, for the apartment of Mrs I.S, his grandmother, who moved in with his parents. This transaction was recorded in a residential premises exchange bureau (бюро обміну житловими приміщеннями), but was not certified by a notary. 6. In May 1996 Mr I. M. gave the applicant a power of attorney authorising her to manage all his property. 7. In June 1996 the applicant, acting on the basis of this power of attorney, sold the apartment Mr I.M. had acquired from Mrs I.S to Mr Y. S., the applicant’s former husband, who in October 1996 sold it on to Mr V. K. 8. On 23 June 1997 Mr I. M. instituted civil proceedings in the Malynivsky District Court of Odessa (“the Malynivsky Court”) against the applicant, Mr Y. S. and Mr V. K., seeking to annul the sales of his apartment, which he alleged had been effected in breach of confidence. 9. On 9 October 1997 Mrs I.S. lodged a claim against Mr I. M., his parents, the applicant, Mr Y. S. and Mr V. K., seeking to annul the initial apartment exchange and subsequent sales. These proceedings were joined to the proceedings that had been brought by Mr I.M. 10. On 17 May 1999 the Malynivsky Court dismissed Mr I. M.’s claim for breach of confidence and upheld Mrs I.S.’s claim for the annulment of the exchange, considering that the exchange had not been certified by a notary in breach of applicable law. However, having found that Mr V. K. had purchased the apartment in good faith, the court declared him the lawful owner of the apartment and ordered the applicant and Mr Y. S. jointly to pay Mrs I.S. compensation of 41,181 Ukrainian hryvnyas for the loss of the apartment. The applicant and Mr Y. S. appealed in cassation. 11. On 31 December 1999 Mrs I.S. died. 12. On 11 April 2000 the Odessa Regional Court authorised Mrs L. M. to join the proceedings as Mrs I.S.’s successor. 13. On 25 April 2000 it quashed the judgment of 17 May 1999 as regards the amount of compensation awarded against the applicant and Mr Y. S. after finding that the first-instance court had insufficiently explored the relevant evidence, and remitted the case for a fresh consideration. 14. On 21 August 2001 the Malynivsky Court ordered the applicant and Mr Y. S. to pay Mrs L. M. UAH 56,112 in compensation for the loss of the apartment. The applicant and Mr Y. S. appealed. 15. On 17 October 2002 the Regional Court quashed that judgment and remitted the case for fresh consideration. The applicant and Mr Y. S. appealed in cassation. 16. On 29 May 2003 the Supreme Court rejected their request for leave to appeal in cassation. 17. On several occasions the applicant and her husband unsuccessfully challenged the decision to allow Mrs L. M. to join the proceedings. 18. On 18 December 2006 the Malynivsky Court ordered the applicant and Mr Y.S to pay Mrs L. M. UAH 80,653.33 in compensation for the loss of the apartment. 19. On 27 March 2007 the Odessa Regional Court of Appeal upheld that judgment. The applicant and Mr Y. S. appealed in cassation. 20. On 31 May 2007 the Supreme Court upheld the judgments of the lower courts. 21. On 7 October 1999 the applicant instituted civil proceedings in the Central District Court of Odessa, alleging that Mr I. M. had failed to repay her 7,000 United States dollars (USD) he had received as a loan. 22. On 24 May 2000 the court heard the case in the defendant’s absence and allowed the applicant’s claim. It noted, in particular, that the defendant had systematically ignored its orders summoning him to the hearings. This judgment was not appealed against and became final. 23. On 21 February 2001 the Presidium of the Odessa Regional Court quashed that judgment following an objection (протест) instituted by the Deputy President and remitted the case for fresh consideration. The Presidium confirmed that the defendant had been duly notified of the hearings. However, it considered that the interests of justice required his presence in order to clarify ambiguities as to the nature and terms of the agreement between the parties. 24. On 20 March 2002 the Central District Court decided to hear the case in the defendant’s absence in view of his repeated refusals to accept service of the summons. It dismissed the applicant’s claim. The applicant appealed. 25. On 11 July 2002 the Regional Court quashed that judgment, after finding the evidence that the defendant had been duly notified of the hearings unpersuasive. Subsequently, the proceedings were transferred to the Prymorsky District Court of Odessa (the Prymorsky Court). 26. On 24 December 2003 the Prymorsky Court dismissed the applicant’s claim after hearing evidence from both parties. It found that the applicant had failed to prove that Mr I. M. owed her the money claimed. 27. On 28 April 2004 the Regional Court quashed that judgment and remitted the case for fresh consideration. Mr I. M. appealed in cassation. 28. On 22 September 2006 the Supreme Court rejected Mr I. M.’s request for leave to appeal in cassation. 29. On 3 April 2007 the first-instance court terminated the proceedings since the parties failed to appear. The applicant appealed. 30. On 11 July 2007 the Regional Court quashed the ruling of 3 April 2007. 31. On 8 October 2007 the first-instance court allowed the applicant’s claim in part.
| 1
|
train
|
001-4559
|
ENG
|
FIN
|
ADMISSIBILITY
| 1,999
|
DEMIR v. FINLAND
| 4
|
Inadmissible
|
Georg Ress
|
The applicant is a Turkish national national, born in 1971 and resident in Kuopio, Finland. He is represented before the Court by Mr Pertti Suonio, a lawyer practising in Kuopio. A. The applicant arrived in Finland on 12 August 1989 with a visa at the age of 17. He married a Finnish citizen on 20 December 1989. The applicant was refused a residence and work permit on 2 January 1990. He left Finland but returned again on 1 March 1990 as he had been granted a residence and work permit in the Finnish Embassy of Ankara on the basis of his marriage. The applicant was granted a further residence and work permit later on. The applicant and his first Finnish wife divorced on 27 June 1995. The applicant has committed several crimes during his stay in Finland. He has been sentenced to several suspended prison sentences and to community service. He has also been ordered to pay fines. According to the applicant he has not committed any crimes since 23 May 1997. On 5 June 1997 local police requested the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) to expel the applicant. The Directorate of Immigration ordered on 11 March 1998 that the applicant be expelled to Turkey as he had no family ties in Finland and as he had repeatedly committed crimes for which the maximum penalty was more than one year imprisonment. The applicant was also forbidden by the decision of the Directorate of Immigration to enter Finland, Sweden, Norway, Iceland or Denmark for five years. The applicant appealed against the decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), stating that there were no legal reasons for his expulsion as the crimes he had committed were not serious enough to justify such an expulsion and as his then girlfriend, T., was pregnant. The applicant also alleged that he would be convicted of desertion and sentenced to a lengthy prison sentence in Turkey, if expelled. In the meantime, on 10 September 1998, the applicant married T., who is a Finnish citizen, and who was pregnant by the applicant. The applicant’s daughter was born on 1 November 1998. On 8 December 1998 the Supreme Administrative Court refused the applicant’s appeal. The Supreme Administrative Court found, taking into account the applicant’s numerous convictions, that the applicant’s expulsion was justified and lawful. It was also noted by the court that the applicant had not submitted any evidence concerning the alleged inhuman treatment in Turkey, if expelled. The Supreme Administrative Court further stated that Article 8 of the Convention does not guarantee to the spouse of a citizen a general right to be granted a residence permit. Taking into account, however, that the applicant’s family lives in Finland, the Supreme Administrative Court reduced the period of the prohibition to enter Finland or other Nordic countries to two years from the original five years’ prohibition. B. Relevant domestic law and practice According to Section 40, subsection 1.3, of the Aliens Act (ulkomaalaislaki, utlänningslag 378/1991), an alien can be expelled from Finland, inter alia, if he or she has committed an offence for which the minimum penalty is more than one year’s imprisonment, or if he or she has repeatedly committed criminal offences. According to Section 41 of the Aliens Act, the circumstances (such as the length of the alien’s stay in Finland, the existence of a parent-child relationship, family and other ties to Finland, or, in connection with Section 40, subsection 1.3, of the Act, the nature of the offence or offences committed) have to be taken into account as a whole when an expulsion is considered. No one may be expelled to an area where he or she might risk being subjected to inhuman treatment or persecution, nor to another area from which he or she might be sent to such an area. According to Section 42 of the Aliens Act, the expulsion is decided by the Directorate of Immigration if so requested by police. The Directorate of Immigration may in some exceptional circumstances decide an expulsion even if the measure is not requested by the police. The alien concerned must also be given an opportunity to be heard in the matter. According to Section 43 of the Aliens Act, an alien may be prohibited from entering the country for a maximum of five years or for an indefinite period. The prohibition may be cancelled permanently or for the time being, because of a change in circumstances or important personal reasons. Such a cancellation is decided by the Directorate of Immigration. According to Section 58 of the Aliens Act, decisions of the Directorate of Immigration concerning, inter alia, expulsion orders, may be appealed within 14 days before the Supreme Administrative Court.
| 0
|
train
|
001-81760
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF FEYZİ YILDIRIM v. TURKEY
| 2
|
Procedural violation of Art. 2;No separate issue under Art. 6-1 and 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
|
Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele
|
7. The applicant was born in 1965 and lives in Istanbul. He is the son of Mr Emin Yıldırım, a draper by trade, who died on 7 February 1996 after suffering a brain haemorrhage. 8. On 7 January 1996, at about 11 p.m., shots were fired in the direction of the local gendarmerie post in the Çermik district (Diyarbakır). Two non-commissioned officers (NCOs) serving at the post, A.B. and F.Ö., went out on patrol under the command of Officer Akgün. They noticed Mr Emin Yıldırım's drapery shop, with three customers inside, Ö.Y., H.Y. and B.N. 9. According to the Government, Officer Akgün agitatedly asked the customers whether they had heard the shots being fired and hurled abuse at the 67-year-old Emin Yıldırım for having his shop open so late. Two police officers, A.Ö. and Ö.Ş., alerted by the din, witnessed the incident. According to the applicant, Officer Akgün not only agitatedly questioned those present in the drapery shop but also violently beat Emin Yıldırım. 10. The following day, Emin Yıldırım went to see E.T., the Çermik district governor, handing him a complaint against Officer Akgün which he had had typed (see paragraph 15 below). However, the district governor, being anxious for the protagonists to settle their differences, allegedly kept hold of the complaint. 11. On 9 January 1996 E.T. summoned Emin Yıldırım and Officer Akgün to his office. Emin Yıldırım was accompanied at the meeting by H.A., the mayor of Çermik. It appears that during the conversation Emin Yıldırım complained of a headache. For his part, Officer Akgün is said to have apologised, explaining that he had been drunk on the night of the incident; Emin Yıldırım then forgave him and withdrew his complaint. At that point, E.T. allegedly tore up the letter of complaint he had kept. 12. On 3 February 1996 Emin Yıldırım was admitted to Diyarbakır General Hospital in a coma. A computed tomography brain scan revealed a severe haemorrhage in the left frontoparietal region. An explanatory note attached to the back of the scan image referred to the haemorrhage as “chronic”, in other words resulting from bleeding over a prolonged period. A life-threatening clinical presentation emerged from subsequent examinations. Two days later, Emin Yıldırım underwent an operation to drain a haematoma, performed by a neurologist, Ö.H. On 7 February 1996 he was transferred to Dicle University Hospital, where he died the same day. 13. Later on 7 February 1996 an autopsy was carried out by a single forensic medical examiner, L.E., under the authority of the Diyarbakır public prosecutor. Dr L.E. subsequently drew up a report, which began by referring to the content of the medical records kept at Diyarbakır General Hospital. According to the report, a superficial examination of the skull revealed a haematoma and an ecchymosis slightly below the surgical scar in the left frontal lobe; in the same area, there was a hole where the skull had been opened up. An intracranial examination revealed a subdural haematoma in the left frontoparietal lobe, multiple areas of brain-tissue degeneration at the base of the left hemisphere, severe cerebral oedema and a swollen cerebellum. According to the forensic medical examiner, a blow sustained “about a month earlier” could well have been the cause of death. 14. According to the mayor of Çermik, H.A., the complaint that Emin Yıldırım had handed to the district governor (see paragraph 10 above) was found in the deceased's pockets. On 8 February 1996 H.A. submitted the document in question to the public prosecutor and gave the following summary of what had happened in the district governor E.T.'s office: “... Accompanied by Mr Emin Yıldırım, I went into the district governor's office; he was there together with Officer Akgün. The officer spoke to Mr Emin Yıldırım and apologised, saying: 'I beat you up last night and displayed an attitude incompatible with my rank as an officer; I am sorry.' Mr Emin Yıldırım replied: 'OK, Captain, but I want you to know that you hit me for no reason and my head [still] hurts'; the district governor then said to him: 'I'll send you to see a doctor ...' The written, unsigned complaint I have with me was found in the deceased's pocket; Mr Emin Yıldırım had had it drawn up [by someone else] but had not handed it to its addressee (the Çermik district governor's office).” 15. The complaint in question, of which the Government produced a copy, is dated 8 January 1996 and is not signed. It is likely that it was typed by another person with some knowledge of procedural matters. The complaint is addressed to the “authority of the Çermik district governor's office” and accuses Officer Akgün of “assault and insults”. In it the events are summarised as follows: “1- On the evening of 7 January 1996, at about 11 o'clock, R.Y., Ö.Y. and H.Y., from the village of Diktol in Çermik, came to my home; the witness Ö.Y. asked me for a shroud of 1.8 m in order to take his deceased father back to the village ...; 2- Together with those persons, I went to open up my drapery shop in Siverek Street. While I was measuring the fabric ..., the accused Sezai Akgün came into my shop, accompanied by two or three gendarmes and two police officers. 3- Captain Akgün said to me: 'Some shots have been fired; did you hear them?'; I replied: 'Yes, but I don't know where they came from.' I explained that I had opened up the shop to provide the persons present, whose father had died, with fabric for a shroud. 4- Officer ... then punched me, shouting: 'You're lying, you son of a ...' While I was asking him what I had done wrong, the officer carried on hitting me, as though drunk. 5- The incident took place in front of the gendarmes ..., the two police officers and the customers ... 6- I am lodging a complaint against the captain. I have bruises on my body, my head hurts from the blows I received and my left ear is torn. 7- I demand the opening of an administrative investigation in respect of the accused and my referral to a doctor for a report, and I ask your office to notify the relevant authorities about the accused ...” 16. On 9 February 1996 the applicant and his mother lodged a formal complaint against Officer Akgün with the Çermik public prosecutor (“the public prosecutor”). 17. Later that day, the public prosecutor interviewed the eyewitnesses Ö.Y., H.Y. and B.N. (see paragraph 8 above). They stated that on the evening of the incident Mr Emin Yıldırım had been violently punched and kicked, in particular in the head, by Officer Akgün. Ö.Y. added that he himself had also been punched twice on the chin when he had exclaimed: “What's wrong with buying a shroud?” On 12 February 1996 police officers A.Ö. and Ö.Ş. and a local gendarmerie NCO were interviewed. The police officers explained that they had heard Officer Akgün hurling abuse at people inside the shop, but that they had not seen him hit them. 18. On an unspecified date the applicant's lawyer contacted the public prosecutor's office at the Diyarbakır 7th Army Corps Command Military Court, seeking to have Officer Akgün placed under arrest in order to prevent him from putting pressure on witnesses and disposing of incriminating evidence. On 27 February 1996 the military prosecutor's office indicated that it was not empowered to take the action requested, as offences committed by members of the armed forces against civilians came under the jurisdiction of the ordinary criminal courts. 19. On 13 March 1996 the public prosecutor interviewed NCOs A.B. and F.Ö. A.B. explained that their commanding officer had been annoyed to see customers in a shop open at night and had asked them to leave the premises immediately. He stated that the victim and some young people had been in the shop, and added: “It must nevertheless be admitted that when we went to the scene we were stressed because of the shooting; under pressure, we could certainly have hit someone, even without really intending to; however, if it had come to that, we would have gone for the young men as they are more dynamic and likely to commit offences.” F.Ö. stated that on the day of the incident he had not gone into the shop and had consequently not seen what had happened there. 20. On 14 March 1996 the public prosecutor sent a summary report on his inquiry to the Ministry of Justice and asked for permission to place Officer Akgün under investigation under the Prosecution of Civil Servants Act. Permission was granted on 16 May 1996. 21. On 12 July 1996 the public prosecutor questioned Officer Akgün, who denied that he had beaten the applicant's father, claiming that he was the victim of a plot hatched by members of terrorist organisations or other underground groups to hinder the gendarmerie's work in fighting terrorism. According to Officer Akgün, Emin Yıldırım had complained to the district governor that he had been verbally abused; as a result, he had gone to the district governor's office himself to meet Emin Yıldırım and had apologised for having lost his temper. Emin Yıldırım had accepted his apology without ever claiming that he had been beaten. Officer Akgün was dismayed that anyone might think that an officer of his rank who had served his homeland for more than 15 years could have gratuitously set about an elderly man and gone so far as to beat him up. He further challenged the competence of the forensic medical examiner who had conducted the autopsy of the body in the absence of a pathologist. He noted that in any event the autopsy had not found any possible traces of the alleged acts of violence. In addition, he invited the public prosecutor to consider how a person claiming to have been so severely beaten could have omitted to contact a doctor and the prosecuting authorities. Officer Akgün asserted that the complaint lodged on 9 February 1996 had been entirely fabricated by Emin Yıldırım's relatives, as had the unsigned letter of complaint allegedly found in the deceased's pockets, and explained that after the meeting in the district governor's office the original complaint had been torn up. 22. On 9, 20 and 25 September 1996 the public prosecutor took initial statements from S.Ç., A.Y., H.S. and M.A., who had been seen near the shop on the evening of the incident. They stated that they had not seen Officer Akgün assault Emin Yıldırım. Next, the eyewitnesses Ö.Y., H.Y. and B.N. were questioned again. They retracted their previous statements, asserting that Officer Akgün had not beaten Emin Yıldırım and that they had been forced to state otherwise following threats by two unknown persons who had not been seen since. On 8 and 9 October 1996 the public prosecutor summoned two other potential witnesses, M.As. and Y.A., whose statements did not bring any new evidence to light. 23. On 15 October 1996 the public prosecutor sent the Ministry of Justice a second summary report on the investigation, asking whether he should institute criminal proceedings. On 14 November 1996 the Ministry replied in the affirmative. In the meantime Officer Akgün had been promoted from the rank of captain to major. 24. On 20 November 1996 the Siverek public prosecutor, to whom the case had been assigned, indicted Officer Akgün in the Diyarbakır Assize Court (“the Assize Court”) for unintentional homicide under Article 452 of the Criminal Code and asked the President of the Siverek Assize Court to order his detention pending trial. On 6 December the President refused the request on the ground that the suspect had a fixed abode and there was no risk of his evading trial or concealing evidence. 25. On 20 January 1997 the mayor H.A. tendered his resignation on the ground that no action had been taken on his request for Officer Akgün to be transferred to another town in view of the events in which he was implicated. It appears that both H.A. and Ö.Y. were subsequently called up for military service. 26. The trial opened in the Assize Court on 20 March 1997. The applicant and his mother applied to join the proceedings as intervening parties, reserving the right to claim compensation. Several witnesses appeared on 20 March 1997, including the applicant's mother. She stated that on returning home after the incident, her husband had had visible injuries to his face and that subsequently his health had rapidly deteriorated. 27. The eyewitnesses H.Y., B.N. and Ö.Y. retracted their statements a further time and confirmed the truth of their initial accusations against Officer Akgün. H.Y. explained that he had been forced by Officer Akgün to retract his initial statement if he did not want to end up like Emin Yıldırım. He then confirmed that the accused had indeed started to hit the applicant's father for no reason; he had first banged Emin Yıldırım's head against a table, before kicking him and then banging his head against the shelves. After Emin Yıldırım had collapsed on the ground, Officer Akgün had carried on kicking him in the head. B.N. maintained that the reason why he had given evidence in favour of Officer Akgün was that he too had been threatened by him. He explained that the officer had in fact kicked Emin Yıldırım in the head and abdomen and had banged his head against the walls until he could no longer stand. Ö.Y. likewise retracted his second statement, explaining that he had made it out of fear that Officer Akgün might take it out on him during his military service. 28. Police officer Ö.Ş., the gendarmes F.Ö. and A.B. and the mayor H.A. also gave evidence. H.A. stated that after the victim's death, Officer Akgün had asked him to help secure his reconciliation with the Yıldırım family, to whom he wished to pay a sum of money to make amends for the wrong he had done. He added that during their meeting in the district governor's office, Officer Akgün had also said that he had had too much to drink on the evening of the incident and that he was aware that he had acted wrongly. Ö.Ş. stated that he had gone to the scene with his colleague after hearing shots being fired. He added that from outside the shop they had heard Officer Akgün reprimanding the victim but had not seen him beat him. NCO A.B. accused H.A. of having twice attempted to put pressure on him to give evidence against his commanding officer. 29. On 12 May 1997 Officer Akgün produced to the Assize Court a letter dated 12 April containing death threats against him. 30. On 21 May 1997 the gendarmerie general command informed the judges of the trial court that Officer Akgün had been relieved of his duties with effect from 20 May 1997. 31. In a letter of 25 May 1997 Ö.Y., who was performing military service at the time, informed the Assize Court that Officer Akgün had compelled him to retract his original statement and subsequently, shortly before the trial, had offered him free air tickets to travel to the courthouse and testify in his favour. He stated that Officer Akgün had in fact grabbed Emin Yıldırım by the neck and had repeatedly banged his head against the walls. He added that Mr Yıldırım had collapsed to the ground and had hit his head on the floor. 32. On 10 June 1997 Officer Akgün requested that the Istanbul Forensic Medicine Institute (“the Institute”) produce a further expert opinion in response to the autopsy report. He again alleged that he had been the victim of a plot, this time orchestrated by H.A., the former mayor of Çermik, on account of the latter's defeat in the elections. For his part, the district governor E.T. explained that on the day after the incident Mr Emin Yıldırım had indeed come to see him with a written complaint. He stated, however, that the complaint was much briefer than the document allegedly found in the victim's pockets and contained no allegations of assault. The district governor stated that he had summoned the protagonists to his office as the deceased had feared that he might be accused of involvement in the unresolved incident of the shots fired on 7 January 1996. E.T. stated that during the meeting Officer Akgün had apologised for uttering insults and that Emin Yıldırım had never claimed that he had been beaten. He added that after the meeting he had torn up the deceased's complaint, believing that matters had been settled. 33. On 12 September 1997 the applicant's lawyer warned the Institute's forensic experts that Officer Akgün might attempt to intimidate them into producing an opinion that was favourable to him. 34. On 16 September 1997 the Assize Court decided to obtain additional medical evidence concerning the precise circumstances of the death and instructed the Institute to draw up a full report as a matter of urgency. 35. On 21 October 1997 and 27 January and 5 March 1998 the Assize Court refused applications for Officer Akgün to be detained pending trial. 36. At the hearing on 5 March 1998 the Assize Court heard evidence from a colleague of Ö.R., a neurologist, A.U., who gave his opinion on the basis of Emin Yıldırım's medical records. He stated that the haematoma was located between the dura mater and the skull, and not in the actual brain. A subdural haematoma of that kind was more likely to result from cranial trauma. It was therefore improbable in his view that the haematoma had been caused by hypertension, especially as the patient's blood pressure had been recorded as normal at the hospital. 37. On 21 April 1998 the neurological surgeon Ö.R. gave evidence. He stated that he did not agree with the note attached to the back of the scan image that the haematoma was “chronic”, which meant that it had formed very gradually. He added that he did not know who could have attached the note but that he was convinced, having himself operated on Emin Yıldırım, that the haemorrhage was “sub-acute” and that it could thus have been caused by a second blow, occurring in the two weeks before the death. He further noted that the patient had been admitted to hospital in a coma, a symptom not associated with cases of chronic haemorrhages, and explained that while Mr Yıldırım' 38. At the next hearing, some ten inhabitants of the deceased's native village stated that he had told them that he had been beaten by Officer Akgün and was suffering from pains in the head, stomach and feet but that, as a matter of pride, he had not wanted to see a doctor. 39. At the hearing on 22 October 1998 the Assize Court heard evidence from a radiologist, A.A., who stated that according to standard medical practice, the results of the scan performed on Emin Yıldırım should have been analysed by a radiologist; at the relevant time, however, he had been the only radiologist employed at the general hospital and he could not imagine who else could have attached the note indicating the presence of a chronic haemorrhage. Counsel for the applicant accordingly demanded that the Institute clarify the contradictions between the various medical opinions. 40. On 23 December 1998 the Institute's First Specialist Committee submitted its report. It found that it could not be concluded with any certainty that Mr Emin Yıldırım had died as a result of an injury sustained on 7 January 1996, particularly as no scan images had revealed any traces of ecchymotic lesions to the bone. The report concluded that the haemorrhage observed during the autopsy could have developed after the operation. On 25 February 1999 the applicant's lawyer challenged that conclusion and asked for the case to be reviewed by the Institute's General Assembly. 41. The General Assembly gave its opinion on 22 April 1999, after studying the seven different medical opinions in the file. It concluded that the causes of death could not be determined with any certainty and that no causal link could be sufficiently established between the alleged acts of violence and the deceased's clinical presentation. Having inspected the deceased's medical records, the General Assembly nevertheless noted certain shortcomings which made it impossible to determine the exact process by which the death had occurred. The autopsy report gave no indication of the colour, density, quantity and extent of the intracranial haematoma and there had been no histological examination of blood samples or of the area described as having been affected by diffuse degeneration of the brain tissue. At the hearing on 10 June 1999 counsel for the applicant also challenged these conclusions, arguing that they had no scientific basis. 42. In its judgment of 14 June 1999 the Assize Court endorsed the public prosecutor's opinion that the charge of unintentional homicide should be dismissed as there was no clear causal link between the death and the alleged blows. However, the Assize Court found Officer Akgün guilty of ill-treatment in the performance of official duties, within the meaning of Article 245 of the Criminal Code. It sentenced him to the minimum penalty of three months' imprisonment and suspended him from duty for two months and fifteen days. The court considered that what constituted ill-treatment on Officer Akgün's part was that he had “made remarks that were likely to offend the victim and engender feelings of distress and anxiety in him” and not that he had beaten him. It found that, even assuming that Officer Akgün had hit the victim as well, such an act would at most have also fallen within the scope of Article 245 of the Criminal Code, which prohibited all forms of ill-treatment of others, including physical violence, in the performance of duties involving the preservation of order in a region affected by terrorism. 43. As to the length of the sentence, the judges pointed out that the accused deserved a favourable assessment on account of the socio-economic conditions in the region where he was serving and his various personal qualities. They thus decided to reduce his prison sentence to two months and fifteen days in view of his “good conduct”. The sentence was subsequently commuted to a fine of 375,000 old Turkish liras, which at the relevant time was equivalent to approximately 0.90 United States dollars or 0.68 euros. Lastly, the Assize Court decided to suspend the enforcement of the fine, being persuaded that Officer Akgün would not reoffend. 44. In his capacity as an intervening party, the applicant appealed to the Court of Cassation, arguing in particular that insufficient consideration had been given to the evidence for the prosecution, that the accused had never been placed in pre-trial detention and that, in view of his status as a high-ranking officer, he had remained free to exert pressure on the witnesses and forensic experts. On 8 May 2000 the Court of Cassation upheld the impugned judgment. 45. The relevant provisions of the Criminal Code read as follows: “Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes or does bodily harm to another person shall be sentenced to between three months' and three years' imprisonment and temporarily barred from public service. ...” “Where death results from an act of violence ... inflicted without the intention to kill the victim, ... a sentence of eight years' imprisonment shall be imposed on the offender ... If the death occurs as a result of the offender's act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate, ... a sentence of a minimum of five years' imprisonment shall be imposed ...” 46. Articles 151 to 153 of the Code of Criminal Procedure (CCP) govern investigations into acts capable of constituting offences such as those punishable under Articles 245 (ill-treatment) or 452 (unintentional homicide) of the Criminal Code. Such acts may be reported to the authorities or members of the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority to which it has been made must make a record of it. The complaint may also be lodged through provincial governors, district governors or village mayors. By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duties is liable to imprisonment (see Yaşa v. Turkey, 2 September 1998, §§ 4850, Reports of Judgments and Decisions 1998VI, and İlhan v. Turkey [GC], no. 22277/93, § 36, ECHR 2000VII). 47. For a summary of the rules governing civil and administrative liability for the acts of State agents, see, for example, Şahmo v. Turkey ((dec.), no. 37415/97, 1 April 2003) and Okkalı v. Turkey (no. 52067/99, § 51, ECHR 2006XII). 48. For the determination of criminal sentences and the rules governing their execution, see Okkalı, cited above, §§ 47 and 49.
| 1
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train
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001-103109
|
ENG
|
UKR
|
ADMISSIBILITY
| 2,011
|
GABIBULLAYEV v. UKRAINE
| 4
|
Inadmissible
|
Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
The applicant, Mr Nizayutdin Dadashevich Gabibullayev, is a Ukrainian national who was born in 1961 and lives in Kharkiv, Ukraine. He was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 December 2004 a criminal case concerning tax evasion was opened against the management of a private company, V., the applicant’s employer. On the morning of 17 December 2004 tax police officers arrested the applicant at his work and brought him to the tax police office. There the applicant was questioned as a witness. When the applicant refused to answer any questions, an unknown person came into the room and started beating the applicant. The tax police officer, U., who was present in the room, did not prevent the applicant’s beating. The applicant was later brought to the Eastern Region Transport Prosecutor’s Office and released in the evening of the same day. Once he was back at home, an ambulance was called for him. He was taken to hospital, where he was diagnosed with a rib fracture and a head injury. The injuries were confirmed by the note issued on 18 December 2004 by the ambulance station. On 18 December 2004 the applicant asked the Kharkiv Regional Prosecutor’s Office to institute criminal proceedings against the tax police officers. On 20 December 2004 a medical examination confirmed that the applicant had a rib fracture and a bruise on the right side of his forehead, and that it was possible that these injuries had been inflicted on the evening of 17 December 2004. On 25 January 2005 the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings following the applicant’s complaints. The prosecutor found that the applicant’s complaints were unsubstantiated. No explanation for the applicant’s injuries had been provided. On 15 February 2005 the decision of 25 January 2005 was quashed by the Kharkiv Regional Prosecutor’s Office. The applicant was informed that his case had been transferred to the Poltava Regional Prosecutor’s Office. Following a forensic medical examination carried out in February and March 2005, the expert found that on 20 December 2004 the rib fracture could not have been more than three weeks old and the head injury not more than three days old. On 31 August 2005 the deputy prosecutor of the Oktyabrskyy District of Poltava refused the applicant’s request to institute criminal proceedings against the tax police officers. Officer U., when questioned, said that he had not beaten the applicant. It was further concluded that the applicant’s injuries had been inflicted before 18 December 2004, namely, “before the applicant was questioned by the tax police officers”. On 28 November 2005 the applicant enquired about the progress of his case. By a letter of 18 January 2006 the applicant was informed of the decision of 31 August 2005. On 31 August 2008 the applicant was again informed of the decision of 31 August 2005. The applicant states that he never received these letters and only learned of the decision of 31 August 2005 on 10 March 2010 from the Government’s observations.
| 0
|
train
|
001-97496
|
ENG
|
GBR
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ADMISSIBILITY
| 2,010
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IYISAN v. THE UNITED KINGDOM
| 4
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Inadmissible
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David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza
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The applicant, Mr Hayri Iyisan, is a Turkish national who was born in 1947 and lives in Adana. He was represented before the Court by Mr H Tepe, a lawyer practising in Ankara. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J Gladstone of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to the United Kingdom in 1970. He was granted leave to enter and remain, which permitted him to work in the United Kingdom. On 12 January 1975 he was granted Indefinite Leave to Remain. In December 1972 the applicant married a British citizen. His wife was born in Cyprus in 1952 but she came to the United Kingdom when she was twelve years old, while Cyprus was still under British control. She speaks Turkish. The applicant and his wife have a daughter, who was born in the United Kingdom on 12 January 1976. She is a British citizen. She married in 2001 and has two children, born on 30 August 2002 and 1 May 2006, who are also British citizens. Her husband's family are Turkish and she travels to Istanbul approximately once a year to visit them. On 19 September 2001 the applicant was convicted of the importation of controlled drugs. Together with two accomplices, he had imported 7.1 kilograms of pure heroin, worth GBP 426,000. Although it was the applicant's first offence, the sentencing judge noted that he had organised the importation and although he had pleaded guilty, he had only done so at a late stage. He was sentenced to thirteen years' imprisonment but was not recommended for deportation. He did not appeal against sentence or conviction. On 6 September 2006 the Secretary of State for the Home Department wrote to the applicant, asking him to submit reasons why he should not be deported. The applicant's representations were considered but on 15 March 2007 the Secretary of State advised the applicant that he intended to deport him on the ground that his deportation would be conducive to the public good. On 19 March 2007 the applicant was issued with a Decision to Make a Deportation Order. The applicant appealed to the Asylum and Immigration Tribunal (“AIT”). In a decision dated 15 August 2007, the AIT dismissed the appeal, holding, inter alia, that the applicant's crime was too serious for his deportation to be found to be disproportionate, notwithstanding the interference with his private and family life in the United Kingdom. On 11 September 2007 the AIT decided not to make an order for reconsideration. The applicant considered renewing his application to the High Court, but counsel advised him that it would be virtually impossible to challenge the AIT's decision. On 5 December 2007 the applicant was served with a deportation order. He was deported to Turkey on 7 January 2008. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that: “390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. 391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion (i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or (ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. 392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”
| 0
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train
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001-85775
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ENG
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MDA
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CHAMBER
| 2,008
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CASE OF GRADINAR v. MOLDOVA
| 2
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Violation of Art. 6-1;Remainder inadmissible
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Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
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5. The applicant was born in 1956 and lives in Comrat. She acts on behalf of her deceased husband, Mr Petru Grădinar (“G.”). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. G. was in conflict with a number of officers of the Comrat police and was allegedly persecuted by those officers for criticising them and helping alleged victims of police abuse. In 1993 G. was allegedly abducted by the local police and a ransom was requested. Having been kept for 15 days in the woods, he was released and on 24 December 1993 lodged a complaint against several officers of the local police, including D., the Deputy Chief of the Comrat police. A criminal investigation was opened but was discontinued for lack of evidence. 8. On 11 March 1995 M., a subordinate of D., made a complaint against G. for resisting the legitimate orders of the police. On the same day G. made a complaint against D., M. and another officer for abusing their power by beating him up at his home and requested the opening of a criminal investigation. The judge examining the two cases closed the first one for lack of evidence. The criminal investigation into G.’s complaint was discontinued some time later. 9. On 4 May 1995 the personnel of the local police station wrote a letter to various authorities in support of the three officers and against D.C. (one of the three accused in the present case). The Prosecutor General found that many of the statements by the police officers in that letter were unfounded and tendentious and contained gratuitous accusations against G., D.C. and the prosecutor who had opened the criminal investigation. There was mention of talk among the officers about possibly resorting to “illegal methods of fighting” the suspects. 10. On 16 September 1995 a burnt-out car was found in a forest near Comrat. The police found the remains of a person in the boot of the car. A criminal investigation was opened and led to the conclusion that the victim was D. Three persons became the prime suspects: the C. brothers (D.C. and G.C.) and G. 11. According to the prosecution, the following events led to the murder of D. on the night of 15 to 16 September 1995. In 1994 D. had opened a criminal investigation against G.C. for “aggravated hooliganism”. The C. brothers and G. were in serious conflict with D. On 15 September 1995 D. visited a bar in Comrat, where he met with the C. brothers and G., was insulted by them and was hit outside the bar. They agreed to meet at around 4 a.m. at a roundabout to finish the dispute. 12. When they met at 4 a.m., the C. brothers and G. beat D. and then forced him into the back of his police car and drove to a forest, followed by G. in his own car. In the forest, they continued beating D. and then loaded him into the boot of his car, sprayed petrol all over it and set the car on fire. The applicant disputed this version of events. 13. On 20 May 1997 the Chişinău Regional Court acquitted all three suspects. On 21 October 1997 the Court of Appeal upheld that judgment. 14. On 5 December 1997 a bomb exploded near G.’s house but nobody was hurt. G. lodged a complaint and requested measures of protection. The criminal investigation initiated at his request could not identify the bombers and was closed in February 1998. The Ministry of the Interior refused to apply measures of protection to him because he had not received any threats and there was no reason to expect a repeat of the bombing. 15. On 12 January 1998 the Supreme Court of Justice quashed the lower courts’ judgments of 20 May and 21 October 1997 and ordered a full rehearing of the case. 16. On 11 June 1999 G. and his son were killed in their car by gunmen. The criminal investigation subsequently launched did not reveal the identities of the killers. On 6 July 1999 the applicant insisted on the continuation of her late husband’s retrial in order to prove his innocence. She was recognised as his legal representative and was allowed to make submissions to the courts in addition to those made by the lawyer whom she had appointed. 17. On 16 September 1999 the Chişinău Regional Court (“the first-instance court”), the only one which examined the witnesses in the case directly (except for P.O., the prison hospital doctor), found the following facts: 18. On 17 September 1995 D.C. was taken to the local police station and questioned as a witness about the events of the night of 15 to 16 September 1995. On 18 September 1995 G. was taken to the same police station and also questioned as a witness about the same events. 19. They were not informed of their rights and were not assisted by lawyers. They were handcuffed while questioned. After the questioning, administrative files were opened on the basis of their alleged insults to D. at the bar and a judge ordered their arrest for ten days as an administrative sanction. During the administrative arrest further questioning took place and other procedural steps were taken, resulting in evidence later used in the criminal case against them. In particular, during this period (18-22 September 1995), G. and D.C. confessed to having murdered D. 20. The court found that the initial reports which had served as a basis for the administrative arrest had been filed in breach of the proper procedures. There had been no grounds for the administrative arrest because the two men were suspects in a criminal case and any detention should have been ordered on that basis. 21. On 19 September 1995 G. and D.C. were taken to a remand centre in Chişinău, where they were questioned again until 21 September 1995 as witnesses and without legal assistance. They made statements accepting their guilt during the questioning. 22. On 21 September 1995 they were, for the first time, interviewed as suspects (as opposed to witnesses), still without having their rights explained and without access to a lawyer. 23. On 9 October 1995 both D.C. and G. were questioned for the first time in the presence of their lawyers and each confessed to having committed the crime. However, when signing the record of the questioning, each wrote that he did not accept any guilt. The same happened on 7 November 1995 in respect of G.C., who had been arrested in Russia and extradited to Moldova. In his statement G.C. mentioned that G. and D. had fought in the woods and had both fallen to the ground before D. was immobilised and burned in his car. D.C. noted that after taking C.S. to the hospital where she worked after 3 a.m., they had driven back by the police station building and towards the roundabout. However, the court found that this was contradicted by the officer P.V., who had been in a police car parked next to the police station and who had not seen any car drive past the station at that time. 24. In early October 1995 G. lodged two complaints about ill-treatment by the police. On 15 December 1995 the investigating judge requested the prosecutor to investigate the allegations. On 1 March 1996 the prosecutor answered in respect of one complaint that the facts had not been confirmed but did not attach any documents from the investigation as required by law. There was no evidence of any investigation of the second complaint. 25. In October 1995 G. was admitted to a hospital for detainees, where he was examined by Dr P.O. on 13 October 1995. Dr P.O. testified in court that G. had complained to him of ill-treatment by the police, but because there were no visible signs, this had not been recorded in the medical report. The court noted that the medical report had been drawn up almost a month after the alleged ill-treatment, which prevented the verification of the allegations. However, G.’s medical file showed that he had complained of pain in the kidneys and broken chest bones and that he had been treated for injuries to his head and leg (“post-traumatic neuritis of the right leg”). Dr P.O. testified that such damage to the leg normally appeared as a result of blows or contusions to that area. The doctor’s conclusion that no chest-bone fractures had been found was not backed up by X-ray evidence as required by law. Subsequent X-ray pictures were of too poor a quality to establish whether the bones were intact. 26. On 20 March 1996 another medical examination of G. was carried out at the request of the investigator. While no signs of ill-treatment were found, the diagnosis was “mild consequences of craniocerebral trauma with hypertonic syndrome” and G. was advised to undergo in-patient treatment. He refused, but in May 1996 he had to be admitted to the hospital as a result of the head injuries and neuritis in the leg. He stayed at the hospital until December 1996. 27. The court also found that, owing to various violations of the rules on criminal procedure, including the use of ill-treatment for the purpose of obtaining a confession, the self-incriminatory declarations made by the third suspect, G.C., who had been arrested in Russia, could not be accepted as evidence. No proper request had been made by the Moldovan authorities to their Russian counterparts to question G.C. and he could not properly be questioned by the Russian authorities because he was not a Russian citizen. 28. The court found that in all the statements made by the suspects there was no fact of which the prosecution had not already been aware before the questioning. Furthermore, G.’s complaint that he had been shown a video of D.C.’s statements, including those made during the crime scene investigation, had been made at a time when he was still a witness and had no right of access to the case file; he was not even supposed to have known of the existence of that video recording. The court concluded that the only way for G. to have known about the recording was by having seen it, which confirmed his claim that he had been shown it in order to ensure that his confession concurred with those of D.C. 29. On the basis of all the evidence, the court found that the statements made by the suspects during questioning had not been given voluntarily but had been taken from them illegally under duress and could not constitute valid evidence. 30. The court then turned to the witness statements. The witnesses had given evidence on three matters: (i) the quarrel at the bar; (ii) the existence of unfriendly relations between the accused and D. (motive for the crime); and (iii) the events at around 4 a.m. at the C. brothers’ parents’ house (alibi for G.). 31. The court examined a number of witnesses whose written statements made at the police station about the events at the bar apparently confirmed that the accused had initiated the fight and been aggressive towards D. A number of those witnesses declared in court that they had been threatened or otherwise forced by the police to sign witness statements, whereas they had not witnessed the events described in the statements. One of these witnesses was C.E., who stated that under pressure from the police he had signed a false witness statement about having seen the accused’s car being driven in the direction of the roundabout at about 3 a.m. on the date of the crime. 32. The statements taken from seven other witnesses by the police in 1995 were read out in court, including that of M.E. who had been with C.E. and had confirmed his statement (see the preceding paragraph). They referred mostly to the events at the bar. Since these witnesses were uncontactable abroad and the accused could not confront and properly challenge them, and in virtue of guarantees provided for in Article 6 of the Convention, the court rejected their statements as evidence. 33. Another witness, a former colleague of D. who had been accused by G. of beating him up in 1995, confirmed his earlier statements attributing the initiation of the fight to the accused. He had gone with D. to the police station and, rather than talking about subsequently returning for any further meeting, they had agreed to go home after visiting the police station. The witness C.S. declared in court that she had seen part of a quarrel at the bar between the accused and D. but that later (at around 3.30 a.m.), when she had been taken to work by the accused in their car, they had been calm and had not spoken about the policemen. 34. The court concluded that not a single witness, including D.’s colleagues, had confirmed the prosecution’s version that D. and the suspects had agreed after the incident at the bar to meet at a later time near the roundabout to continue the dispute. 35. Some of the police officers declared that G.C. had threatened D. with violence because of the administrative file opened against him. The court failed to see why in such circumstances and after allegedly being threatened that same night by the suspects, D. would have agreed to return for a fight, alone and without warning anyone, including the officer on duty at the police station, and without taking his weapon from the safe. 36. D.’s colleague, a police officer who was present during all the events at the bar, had not informed his superiors of any such meeting even though he would have been obliged to report anything suspect. Indeed, he did not confirm that such an agreement had taken place. Moreover, having called his wife from the police station, he had gone outside to be taken home by D. in his car but had not seen D. or his police car. He had run down the street hoping to see him, but passing by the roundabout several minutes later, he had not seen D. or anyone else there. 37. The court’s conclusion was that the incident at the bar, to the extent that it had happened, had ended there. 38. Other witness statements related to the alleged motives for the crime, for example, that relations between the suspects and D. were hostile on account of the criminal file opened against G.C. and that D. was worried about vengeance on their part. However, the court found no objective confirmation of such fears. On the contrary, D. had declared during questioning in the case in which G. had accused him of abduction in 1993 that he was on good terms with G. 39. In addition, while D. had opened a criminal investigation in respect of G.C. on 16 June 1994, he had not taken any measures in relation to him before handing the case to another investigator on 1 July 1994. There was no evidence in the file suggesting that G.C. had seen the materials in the file and thus found out about D.’s involvement in the case, and the case had been closed by another investigator in December 1994 following G.C.’s admission of having committed hooliganism. The court thus did not find any reasonable motive for revenge by G.C. based on that investigation. 40. Other witnesses called by the prosecution not only denied the allegation that G.C. had told them about killing D. while they were travelling in Russia, but declared that they had seen G.C. being beaten to obtain a confession from him. The court likewise rejected the evidence of a former officer from the police station in Comrat where D. had worked to the effect that he had been told by G.C. about the murder and its details. The court found that the witness was not impartial. 41. Another group of witnesses testified about the events at the house of the C. brothers’ parents. These witnesses (not only the parents) stated that they had butchered and processed a pig for about two hours and then taken the meat to the market at about 5.30 a.m. Two of them declared that they had been made to sign statements which did not entirely correspond to what they had witnessed, in particular being pressed by the police to indicate that the butchering had begun at a different time and to declare that G. had not been present. A meat seller at the market confirmed that at about 5.30 a.m. he had received meat from G.C. and that, judging by its weight, the butchering had taken between one and a half and two hours. 42. Considering all the above witness statements, the court found that at around 4 a.m., the time of the murder according to the prosecution, the suspects had been at C. brothers’ parents’ house and could not have been in the woods to commit the crime as alleged. 43. The report of the crime scene investigation, together with a video recording of the investigation, depicted each of the accused showing the place and the manner in which they had allegedly committed the crime. According to the testimony of one of the police officers who had taken part, the investigation had been carried out on 18 September 1995. 44. The court found a number of violations of the rules on criminal procedure in the investigation of the crime scene. In particular, the report had been signed and annexed to the case-file only at a much later stage, whereas by law, it should have been signed during or immediately after the investigation. The witnesses to the crime scene investigation confirmed that they had signed the report but that they had not been allowed near the crime scene and had seen the burnt-out car only from a distance. Contrary to legal requirements, they had not had any explanation of their rights and obligations as witnesses, they had not seen what the police had found on the scene and they had not seen the video recording of the event before signing the report and map. 45. In addition, while a car tyre print had been found at the crime scene, a copy had not been made. D.’s documents, found intact and “conspicuously displayed” nearby, had not been examined for fingerprints, even though they had a plastic cover that could have retained prints. 46. A piece of fabric found on a bush had been described but not located on the map and not subjected to expert analysis. The analysis of the suspects’ clothes which they had worn on that night did not reveal any element suggesting that they had been at the crime scene. A petrol tank found at the scene had likewise not been analysed by the experts. 47. The prosecution had not produced to the court the video recording of the crime scene investigation. The map drawn did not indicate the exact position of a number of items and marks noted in the report as having been found at the crime scene. This made it impossible for the court to verify whether what the accused had indicated at the crime scene coincided with the map and the traces found. 48. The report of the investigation described the finding of a plastic tube in September 1995, but no details or measurements were given. It was only on 28 February 1996 that the investigator had presented as evidence a piece of plastic tubing which had allegedly been found at the crime scene and had been used for taking fuel from D.’s car in order to set the car on fire. The court rejected that evidence, along with the result of a forensic experiment that merely showed the possibility of evacuating fuel from the car’s tank in that manner. 49. In the light of these findings, the court excluded the crime scene report as a whole from the evidence on account of the serious procedural violations. 50. The court examined additional facts determined during the investigation. A witness testified that he worked as a security guard in a café near the roundabout and had seen a police car and another car stopping there and a fight taking place between their occupants. They had then all got back into their cars and shots had been heard. One car had left, followed by the police car, in the direction of Chişinău. He had not seen either of the two cars return in the direction of the wood where the burnt-out car was later found. 51. Other witnesses confirmed in court that they had heard shots that night but could not confirm their location. 52. The defence claimed that, after a brief initial investigation of the shooting, including a ballistics report, the relevant evidence had been withdrawn and examined in a new criminal case, in order to prevent the examination of alternative leads in the accused’s case. The court found no evidence of any ballistics report, but noted the presence of records of interviews of witnesses who had heard the shots. Moreover, a cartridge case was found in D.’s car, the origin of which had not been explained. The court concluded that initially there had been another lead in the case which had not been fully investigated. 53. The court also examined the evidence relating to the identification of the human remains found in the car and decided that the identity of the victim had not been established. 54. The court also found, from the statements of a number of witnesses, including police officers, that the assumption that the three suspects had committed the crime had emerged immediately and remained not just the main scenario under consideration, but in fact the only one examined during the entire investigation. In the court’s view, this was confirmed by the failure to examine in any detail the established fact of the shooting in the area of the roundabout. 55. The court also noted the general attitude of the local police officers towards the suspects displayed in their letter of 4 May 1995 (see paragraph 9 above), which had led it to conclude that the local police had formed a strongly negative attitude towards the suspects even before the crime had been committed. Added to that was the loss to the police station in the form of the police car that had been destroyed. The court concluded that that police station should not have been involved at all in the investigation of the crime. Nonetheless, most procedural steps in the initial phase of the investigation of the case had been performed by officers from that police station. 56. The court examined the expert reports on various items found in and around the car. It concluded that most of those reports had been filed in serious breach of the rules on criminal procedure (notably, the presumed identity of the human remains found in the burnt-out car had already been written on the materials presented to the experts, who were under the impression that the fact had already been established) or had been seriously undermined by the improper manner in which samples had been obtained during the crime scene investigation. 57. The court concluded that these reports neither confirmed, nor denied the identity of the victim. The objects found in the car and identified as belonging to the alleged victim were not inseparable from him and could have been placed there. Moreover, the prosecution had given no explanation as to why those who had committed the crime, having taken measures thoroughly to destroy all traces, had left D.’s personal documents untouched in an open space nearby, “conspicuously displayed” with his picture attached. 58. The court considered that credibility could be attached to the statements by the accused that illegal forms of pressure had been used on them and to those made by some witnesses about being forced by the police to give false statements. 59. The court also found that the investigation had been unilateral and biased against the suspects. It found that it had not been proved that the remains in the burnt-out car belonged to the alleged victim. While it had been proved that a crime had been committed by burning the car and an unidentified person inside it, there was no evidence to show that the suspects were the perpetrators of the crime. Most of the evidence gathered was unreliable owing to breaches of criminal procedure and could not serve as a basis for a conviction. On the basis of its findings, the court acquitted all three suspects. 60. On 31 January 2000 the Court of Appeal quashed the judgment of the Chişinău Regional Court and adopted a new one, convicting D.C., G.C. and G. It did not sentence G. because of his death in 1999. 61. The court recounted in detail the sequence of events as submitted by the prosecution. It then examined the parties’ submissions and the material in the case file and examined one witness (Dr P.O.). The court noted the contents of the interviews of each of the accused during the investigation (of G.C. on 1 and 7 November 1995, of D.C. from 17 to 20 September, 9 October and 10 November 1995 and of G., without specifying any specific date in his case but rather stating that he had given genuine confessions “throughout the investigation”). 62. It found that the three suspects had on a number of occasions made genuine and consistent confessions in the presence of their lawyers and that G.C. had written one of his confessions himself. D.C.’s confession of 19 and 20 September 1995 had been filmed. 63. The court considered that all of the above precluded the possibility of ill-treatment and that the suspects’ confessions had incorrectly been excluded from the evidence by the first-instance court. The suspects had changed their statements towards the end of the investigation only to avoid criminal responsibility. 64. In the court’s opinion, there was no evidence of any ill-treatment of the accused. The officers questioned in that regard all denied having applied such treatment and G.’s personal medical file from his hospital treatment in October 1995 did not establish any evidence of ill-treatment. Dr P.O. did not confirm the ill-treatment. 65. The officer who had questioned G.C. after arresting him in Russia testified to the fact that G.C. had been lawfully questioned and that he had not been subjected to any form of ill-treatment. Because G.C. had a Russian residence visa in his passport for 1995, the Russian investigating authorities had treated him as a Russian citizen and there had thus been no need for a special request by any Moldovan authority to that effect. 66. The court noted that all three suspects had made similar statements, differing only as regards their respective roles in committing the crime. The court considered that their subsequent denial of committing the crime and the slight variations in their versions of events was an attempt to avoid criminal responsibility. 67. The crime scene investigation had been conducted in the presence of witnesses and G.’s lawyer and was filmed. Both D.C. and G. had been able clearly to indicate the place and the manner of D.’s killing. 68. D.’s wife had identified the objects found in the burnt-out car and declared that the accused had often threatened her husband and family because of a criminal investigation opened by her husband against G.C. On 17 September 1995 the local police had called to inform her that her husband’s corpse had been found burned in the woods, together with his keys and documents. The court found that D. had indeed opened a criminal investigation against G.C. on 16 June 1994. 69. The car found at the crime scene belonged to the local police station. Blood samples from around the car coincided with the D.’s blood group. Moreover, no other disappearances had been reported during the relevant period in the region. There was no doubt in the view of the Court of Appeal that the corpse found in the car was D. 70. The court stated, without giving any further details, that a number of witnesses had “directly and indirectly shown that the accused were connected to the crime”. The statements of two other witnesses, excluded from the evidence by the first-instance court, were declared admissible by the Court of Appeal, although it did not specify why, or what those statements included. 71. Moreover, the witness statements of M.F. and S.P. had been read in court but unlawfully excluded from the evidence by the first-instance court. 72. The court also found that the first-instance court had not given reasons for its decision to reject from the file several types of evidence. The court rejected as unproven, without giving any explanation, all the other evidence taken into account by the first-instance court in favour of the accused. It found each of the accused, including G., guilty as charged and decided to discontinue the proceedings against G. because of his death. 73. On 30 May 2000 the Supreme Court of Justice upheld the judgment of the Court of Appeal. 74. The court first recounted in detail the prosecution’s version of events, the findings of the lower courts in the case and the arguments raised by the defence, including an alibi for the accused. 75. The court declared that it accepted only lawfully obtained evidence as the basis for its judgment, evidence which it found “sufficient to confirm the guilt of the accused [G.C.], [D.C.] and [G.] in having committed the acts of which they are accused”. It referred to the contents of the self-incriminating statements made by the accused on 9 October and 7 November 1995 and noted that these statements had been made in the presence of their lawyers. It confirmed the Court of Appeal’s acceptance of the self-incriminating statements as the “decisive evidence” in the case. The accused had made similar statements; the discrepancies relating to the role of each in committing the crime were the result of their attempt to transfer most of the guilt to the others. 76. The court also found that the accused had not withdrawn their statements until 6 March 1996, when they declared that they had been ill-treated. The first-instance court: “gave credibility to the accused’s declarations, even though they had not been proved, while deciding, without any basis, that witnesses who testified that there had been no ill-treatment were interested persons and should thus have their testimony excluded.” 77. The court also noted the statements of several witnesses who confirmed that the quarrel at the bar had taken place, that the accused had initiated it and that they had left for the hospital, while D. had left for the police station after 3 a.m. The testimonies largely coincided, as to the time and sequence of events, with the initial statements by the accused. 78. The witness C.S. confirmed that the accused had driven her to the hospital after 3 a.m. and confirmed the quarrel at the bar. Her statements largely coincided with those made by D.C. on 17 September 1995. The witnesses C.E. and M.E. stated that they had seen the accused in their car and the police car driving towards the roundabout shortly after 3 a.m. 79. The officer who had been on duty that night at the police station noted that D. and his colleague M. had come to the station at around 3.22 a.m. and that minutes later D. had left in the car. 80. Officer M. (se paragraph 8 above), remembered one of the accused shouting in the Gagauz language “I will burn you”. The officer did not speak that language but remembered the word and had later found out its meaning. 81. The court noted that D. had opened a criminal investigation against G.C., which might have constituted a motive for revenge. 82. The court examined various pieces of evidence which proved, in its view, that the human remains found at the crime scene were those of D.: an expert report had found that the corpse was, in all probability, that of a man; the blood stains found coincided with D.’s blood group; and items found in and around the car, such as keys and documents, belonged to D. and had been recognised by his wife. 83. Lastly, the court declared that the above and “other evidence taken into account by the Court of Appeal” proved the accused’s guilt. No further details were given. 84. The relevant provisions of the Code of Criminal Procedure in force at the material time read as follows: “Criminal proceedings cannot be instituted, and those already instituted shall be discontinued: ... (8) against a deceased person, with the exception of those cases where the proceedings are necessary for the rehabilitation of the deceased ...” “... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents.” “... A witness who refuses to testify shall be liable in accordance with Section 197 of the Criminal Code, and shall be liable for falsely testifying in accordance with Section 196 of the Criminal Code. ...” “... When the accused is first questioned after being taken into custody, the questioning may take place only in the presence of defence counsel, whether chosen or officially appointed.” “The minutes of an investigatory procedure shall be filed during the procedure or immediately thereafter. ... After the end of the questioning the audio or video recording shall be reproduced in full for the person questioned. ... The audio or video recording shall end with a declaration by the person questioned confirming the correctness of the recording.” “... The following have the right to introduce a revision request: ... (b) the spouse and other close relatives of a convicted person, even after his or her death.” 85. The relevant provisions of the Act on compensation for damage caused by the illegal acts of the criminal investigating authorities, prosecuting authorities and courts (no. 1545 (1998)) read as follows: “(1) Pursuant to the present Act, compensation shall be payable for pecuniary and non-pecuniary damage caused to a natural or legal person as a result of: (a) unlawful detention or arrest ...; (b) unlawful conviction ...; ... (d) unlawful administrative detention or arrest ...” “(1) At the time of notifying about ... an acquittal ..., the natural person (in case of his or her death the heirs) ... shall be handed a notice in a typical form explaining their right and procedure for asking reparation for damage caused.” “(1) The prosecutor responsible for the criminal investigation or the hierarchically superior prosecutor shall make an official apology in the name of the State to the groundlessly prosecuted person. (2) Official apology of the prosecutor shall be made in the case where: ... (c) an acquittal becomes final; ... (3) The prosecutor shall make an official apology in written form to the victim of the unlawful acts or to the latter’s close relatives.”
| 1
|
train
|
001-95234
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,009
|
JUNG v. GERMANY
| 4
|
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
The applicant, Ms Meike Jung, is a German national who was born in 1970 and lives in Berlin. Together with Mr W., the applicant held shares in a limited liability company which in 2001 took out several loans from the Berliner Volksbank eG for which both the applicant and Mr Weiβ provided directly enforceable guarantees (selbstschuldnerische Bürgschaft). In July 2002 the bank terminated the loans on account of arrears and claimed the outstanding debts from the applicant. After the applicant had refused to pay, the bank invoked the guarantees and in 2004 brought an action claiming partial payment of 50,000 euros (EUR). Together with its statement of claim the bank submitted, inter alia, a deed signed by the applicant on 16 March 2001 guaranteeing an overdraft of the company’s account in anticipation of a current account advance (Kontokorrentkredit) of EUR 200,000. On 13 September 2004, following an oral hearing, the Regional Court found the bank’s claim to be justified in view of the guarantee. The applicant brought an appeal against the judgment. On 15 February 2005 the Court of Appeal advised the parties that it had doubts as to the action’s conclusiveness (Schlüssigkeit). In the opinion of the Court of Appeal, the guarantee of 16 March 2001 did not cover the bank’s claim since it was in anticipation of a current account advance and had therefore expired once the advance had been authorised. On 23 August 2005 the bank’s lawyer submitted a deed guaranteeing the actual current account advance signed by the applicant on 26 April 2001. The applicant did not dispute the newly submitted guarantee; however, she alleged that its submission constituted an inadmissible amendment of claim (Klagänderung) and that a claim based on the new guarantee was moreover time-barred. In September 2005 the presiding judge of the competent chamber, Mr W., fell ill. He has been unfit for service because of illness (dienstunfähig krank) since then. By decision of the Court of Appeal’s presidium of 30 August 2005 Mr G. was appointed regular deputy presiding judge (regelmäβiger Vertreter des Vorsitzenden). By letter of 17 October 2005 Mr G. informed the parties that in view of the new submission of the bank the chamber intended to dismiss the applicant’s appeal in accordance with section 522 § 2 of the Code of Civil Procedure (see Relevant domestic law and practice, below) without an oral hearing for lack of prospects of success. The court considered that from the beginning the bank had based its claim on an undisputed guarantee for the current account advance and had simply submitted the wrong deed. For this reason the claim could not be time-barred either. In reply, the applicant submitted that, because of the amendment of claim, a decision under section 522 § 2 of the Code of Civil Procedure was no longer admissible and an oral hearing was necessary. On 25 January 2006 the Court of Appeal, by unanimous decision, dismissed the appeal under section 522 § 2 of the Code of Civil Procedure, referring to the reasons set out in the letter of 17 October 2005. On 7 February 2006 the applicant submitted a complaint that she had not been heard (Gehörsrüge), arguing, inter alia, that the Court of Appeal had neither dealt with her arguments regarding a modification of the matter in dispute (Wechsel des Streitgegenstandes) nor the question whether a decision under section 522 § 2 of the Code of Civil Procedure was still admissible. On 27 February 2006 the Court of Appeal dismissed the applicant’s complaint. The court held that it did not view the bank’s submission on appeal as new or as an amendment of claim. However, even if it had considered it as such an oral hearing would not have been necessary. The new submission had been undisputed and was therefore admissible in any event on appeal. An amendment of claim would have been relevant (sachdienlich) and therefore also admissible, irrespective of the applicant’s objection. Finally, the bank’s claim was not time-barred as argued by the applicant: the current account advance had not been terminated until 2002 so the statute of limitations ran until the end of 2005 and the correct guarantee had been submitted in time. In a constitutional complaint of 3 April 2006 the applicant alleged a violation of her right to be heard and a violation of her right to the legally competent judge. In connection with the latter argument, she submitted that because of the long-term illness of Mr W. a new presiding judge should have been appointed. Furthermore, the decision of the presidium of 30 August 2005 was unlawful because there had been no material cause (sachlicher Grund) for the appointment of Mr G. as deputy presiding judge and thus a change in the distribution of business (Geschäftsverteilungsplan) in the course of the business year. On 26 July 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (file no. 1 BvR 1194/06). The relevant domestic law is described in the Court’s decision in the case of Rippe v. Germany (dec.), no. 5398/03, 2 February 2006.
| 0
|
train
|
001-111838
|
ENG
|
TUR
|
CHAMBER
| 2,012
|
CASE OF TAYLAN v. TURKEY
| 4
|
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
|
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
|
4. The applicant was born in 1968 and lives in Bursa. 5. On 8 March 2000 the applicant was arrested on suspicion of establishing a criminal organisation and committing fraud, threats and bribery. Approximately an hour after the arrest, he underwent a medical examination. The doctor who examined the applicant noted no sign of injury on his body. 6. On the same day, the applicant was taken to the Department of Organised Crime of the Bursa Directorate of Security, where he was allegedly subjected to ill-treatment. More specifically, he was stripped naked, beaten, subjected to electric shocks, hung by the arms, forced to sit naked on cold ground bare and hosed with water. 7. On 10 March 2000 the applicant’s wife lodged a complaint with the Bursa Public Prosecutor, claiming that her husband was being tortured. 8. Subsequently, on the same day the Bursa Public Prosecutor initiated an investigation into the matter. 9. On 12 March 2000, upon the request of the Bursa Directorate of Security, the Bursa Magistrates’ Court decided to prolong the applicant’s detention in police custody for three days. 10. On 14 March 2000 the applicant was heard by the Bursa Public Prosecutor. He was then transferred to the Bursa Branch of the Forensic Medicine Institute to be examined. The forensic medical report noted the applicant’s complaint as to his ill-treatment and indicated that he had two bruises measuring 8 x 3 cm and 8 x 1 cm on his left arm, a 6 x 5 cm light bruise in his right armpit, a blue-coloured bruise surrounding his left eye, several parallel scabbed lesions around his penis and a scratch measuring 2 x 1 cm below his right knee. 11. On the same day, following a request from the Department of Organised Crime, the applicant was examined once more by another doctor, who stated that the applicant had complained of headaches, dizziness and sensitivity at the tip of the big toe of his right foot. The report drawn up by that doctor indicated that the applicant’s general health condition was good and that he was conscious. It noted that he had bruises and hyperemia on his left and right sides, further hyperemia on both his arms, scabbed lesions of 2 x 3 cm on his penis (which would probably heal in three days) and a bruise around his eye (to heal in five days). The report concluded that the injuries would not keep the applicant from daily work. 12. On 20 March 2000 the Bursa Public Prosecutor requested the Forensic Medicine Institute to indicate, on the basis of its medical report dated 14 March 2000, whether the applicant was fit for work. On the same day, the Institute issued another report, reiterating the findings of the initial one and stating that the applicant would be unfit for routine activities for a period of three days. 13. Following the applicant’s detention on remand, the prison doctor transferred him to the Bursa State Hospital. On 22 March 2000 the applicant was diagnosed with acute lumbar strain and discopathy by a doctor at that hospital. The doctor also indicated that the applicant suffered from spondylosis and sciatica on his right side. The applicant was discharged from the hospital on 27 March 2000. 14. On 28 March 2000 the Bursa Public Prosecutor heard the applicant’s allegations of ill-treatment during his time in police custody. The applicant repeated before the Public Prosecutor that he had been stripped naked and subjected to electric shocks, hung by the arms, forced to sit on cold ground and hosed with cold water every one or two hours during the seven-day period of custody. He added that he had been blindfolded during his arrest and kept that way until he was brought before the Bursa Public Prosecutor for the first time. 15. The next day, on 29 March 2000, the Bursa Public Prosecutor requested the Bursa Directorate of Security to list the names of the police officers who had been on duty and who had had any contact with the applicant during the time he had been held at the Department of Organised Crime. 16. In the meantime, the issue was brought to the attention of the Ministry of Justice by one of the Members of Parliament representing Bursa. 17. Following this event and the coverage of the issue in a local newspaper, on 6 April 2000 the Bursa Public Prosecutor submitted an information document to the Directorate of Criminal Affairs attached to the Ministry of Justice, stating that the medical reports about the applicant corroborated the allegations of ill-treatment and that he had already commenced an investigation into the matter on 10 March 2000. 18. Subsequently, on 18 April 2000 the Bursa Directorate of Security informed the Bursa Public Prosecutor of the names of thirteen police officers on duty during the period when the alleged events took place. 19. On 26 April 2000 the Public Prosecutor filed an indictment with the Bursa Assize Court, accusing all thirteen police officers listed of torture, pursuant to Article 243 of the former Criminal Code (Law no. 765). He maintained that the complainants’ accounts of the events and witness statements confirmed the findings of the medical reports and concluded that the seven complainants, including the applicant, had been subjected to illtreatment in police custody. 20. At the first hearing on 29 June 2000, the Bursa Assize Court found that the investigation conducted by the Bursa Public Prosecutor had been inadequate. The court conducted a procedure whereby the complainants identified the police officers they had accused of torture. The applicant joined the proceedings as a civil party. 21. During the course of the ten hearings that followed, the court evaluated medical reports and documents from the Directorate of Security. It also heard statements from the accused police officers, the complainants and several witnesses. 22. On 27 March 2003 the Bursa Assize Court acquitted ten of the officers, finding that none of the complainants, except for the applicant, had been ill-treated and that those ten officers had not been involved in the applicant’s ill-treatment in police custody. The court found the other three officers, who had been identified by the applicant during the hearings, guilty as charged, having regard to the consistency of the applicant’s account of events with the medical reports. It sentenced the said three officers to ten months’ imprisonment and banned them from public service for a period of two months and fifteen days. The court finally deferred the execution of their sentences pursuant to Section 6 of Law No. 647 on the basis that the officers did not show any likelihood of reoffending. 23. On 14 June 2006 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the acquittal. It quashed the part concerning the sentences, stating that the court should evaluate the case again in the light of the recent Criminal Code (Law no. 5237) and the Code of Criminal Procedure (Law no. 5271), both of which had entered into force in 2005. 24. On 1 February 2007 the Bursa Assize Court held that the former Criminal Code (Law no. 765) was more favourable for the accused police officers. The court once more sentenced them to ten months’ imprisonment and two months and fifteen days’ ban from public service. This time, the sentences were commuted into a fine of 900 Turkish liras for each officer and were suspended again. 25. The Court of Cassation quashed that judgment on 2 July 2008, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years (hükmün açıklanmasının geri bırakılması), pursuant to Article 231 of the recent Code on Criminal Procedure (Law no. 5271). 26. On 5 November 2008 the Bursa Assize Court held that the officers concerned had beaten and cursed the applicant and administered electroshocks on him in order to a extract confession. The court sentenced the police officers once again to ten months’ imprisonment and banned them from public service for two months and fifteen days, pursuant to Article 243 of the former Criminal Code (Law no. 765). Finally, it suspended the pronouncement of the judgment, having regard to the officers’ lack of criminal records and finding it unlikely that they would reoffend. 27. The applicant objected to that decision. However, on 28 November 2008 Bursa Assize Court rejected his objection. The final decision was served on the applicant on 15 December 2008. 28. On 12 May 2000 the Bursa Governorship assigned a chief officer to conduct a disciplinary investigation about the allegations of ill-treatment concerning thirteen police officers. 29. The investigation began on 22 May 2000 and ended on 3 August 2000, on which date the superintendent officer drew up a report (fezleke). On the basis of two video recordings of the applicant during a search and when his statements were being taken and the statements of the police officers, the witnesses and the complainants, including the applicant, the superintendent indicated that the applicant seemed to be in good health and that the light ecchymoses indicated in the medical reports could have just as well been produced by the applicant himself. He concluded therefore that the police officers’ acts did not require disciplinary action. 30. On 9 January 2002, having reiterated the findings of the chief officer, the Central Disciplinary Board of the Directorate of Security held that there was no ground to take disciplinary measures against the thirteen police officers. 31. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts). 32. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code on Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows: ... (5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment would not bear any legal consequences for the offender. (6) Suspension of the pronouncement of the judgment may be decided provided that; a) the offender has never been found guilty of a wilful offence, b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed, c) the damage caused to the victim or to the society is repaired by way of restitution or compensation. (8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. (10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, the pronouncement of which had been suspended, will be cancelled and the case discontinued. (11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may as well suspend the execution of the imprisonment or commute it to other optional measures. (12) An objection may be filed against the decision to suspend the pronouncement of the judgment.
| 1
|
train
|
001-84607
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,008
|
PINCZE v. HUNGARY
| 4
|
Inadmissible
|
András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
|
The applicant, Ms Mária Pincze, is a Hungarian national who was born in 1958 and lives in Budapest. The Hungarian Government (“the Government”) are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 August 1999 the applicant signed a contract for the purchase of the flat of Cs.Z. and paid the first instalment of the price. The applicant was aware of the fact that a third individual, S.T., enjoyed the beneficial ownership of the flat and that Cs.Z. had obtained ownership by virtue of a life annuity contracted with S.T. Since S.T. was mentally disabled and permanently placed in a mental hospital, he did not actually live in the flat. In order to finance the transaction, the applicant sold her own flat and requested a loan from her employer. In October 1999 the applicant requested the Budapest IX District Guardianship Authority to approve the transaction. In December 1999 the Guardianship Authority refused her request and informed her that the Budapest IX District Government had sued Cs.Z. before the Pest Central District Court because of the breach of the life annuity contract. On 21 December 1999 the applicant, being of the view that it was no longer possible to obtain ownership of the flat, signed a lease with S.T. and moved into the flat with her two children. She received the Guardianship Authority’s approval for the lease on 17 February 2000. (On 24 May 2002 the District Court established that S.T. had died on 4 February 2000, and that the Hungarian State had inherited ownership of the flat.) In the meantime, following S.T.’s death, the applicant appealed against the Guardianship Authority’s decision of 17 February 2000, requesting the Authority to approve her original purchase of the flat instead of the lease. The Budapest Administrative Office, acting as a second administrative level, terminated the proceedings on 6 March 2000 in view of the death of S.T. The applicant did not seek judicial review of this decision. Subsequently, the applicant, considering that the death of S.T. had removed any obstacles to the purchase of the flat, paid the second instalment of the purchase price to Cs.Z. On 11 May 2000 Cs.Z. forced the applicant to leave the flat, since she had been unable to pay the final instalment of the purchase price. The applicant did not initiate any proceedings in order to challenge Cs.Z.’s action. Since then she has been renting another flat, being unable to buy a new one. On 20 October 2000 the applicant brought an action in compensation before the Pest Central District Court against the individuals, lawyers and State officials who had been a party to, or otherwise involved in, the abovementioned proceedings. The District Court transferred the case to the competent Budapest Regional Court. On 19 June 2001 the Regional Court held a hearing. On 28 October 2002 the Regional Court partly found for the applicant and awarded her 1,862,009 Hungarian forints (approximately 7,385 euros) plus accrued interest in compensation. The Regional Court relied on documentary evidence and the testimony of the parties. On appeal, on 17 September 2003 the Budapest Appellate Court upheld the first-instance decision in substance. This decision was served on the applicant in January 2004. On 10 February 2004 the applicant requested the execution of the final decision. On 19 July 2004 the Budapest Regional Court ordered the enforcement. On 27 May 2005 the bailiff informed the applicant of the suspension of the proceedings since the debtor did not possess any executable property. However, on 5 October 2005 the sum awarded was paid to the applicant. “(1) Those who have been deprived of their possessions without justified reason or are being disturbed therein (illicit power), are entitled to the protection of possession.” “(1) Those who have been deprived of their possessions or are being disturbed in their enjoyment thereof may request the restoration of the original state of possession, or the termination of the disturbance, from a Notary within one year.”
| 0
|
train
|
001-5788
|
ENG
|
ITA
|
ADMISSIBILITY
| 2,001
|
TRACIA v. ITALY
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant is an Italian national, born in 1920 and living in Rome. He is represented before the Court by Mr A.G. Lana, a lawyer practising in Rome. The applicant was an employee of the Italian Tax Revenue whose duty was to supervise the validity of payments made to taxpayers. On 8 July 1976, the applicant authorised to pay a company its tax credit although it was not entitled to it. On 13 November 1987, the Principal State Counsel at the Court of Audit summoned the applicant to appear before the Court of Audit with a view to ascertaining his liability jointly with other employees for the damages caused to the State. By a decision of 9 December 1987, the Court of Audit ordered the seizure of the applicant’s property. By a judgment of 28 September 1991, the Court of Audit found the applicant liable and ordered him to pay compensation to the State. Two judges of that Court (D.R. and M.) had also decided in the seizure proceedings. The applicant’s appeal against this judgment was dismissed by the Appellate Court of Audit on 25 May 1995. Pursuant to Article 395 No. 4 of the code of civil procedure, on 13 September 1995 the applicant lodged an application with the Appellate Court of Audit to recall the above-mentioned judgment of 25 May 1995 by reasons of errors of facts (revocazione). Two judges of that Court (G. and A.) had already participated in the appeal proceedings. The application was declared inadmissible by a decision of 9 September 1996. Pursuant to Article 1 quinquies of Law No. 20/1994, on 30 December 1997 the applicant lodged a second application with the Appellate Court of Audit to recall the judgment of 9 September 1996 in order to be excluded from his joint liability. By a judgment of 16 July 1998, the Appellate Court of Audit declared that application inadmissible. Under Article 26 of Royal Decree No. 1038 of 13 August 1933 and Article 52 of the code of civil procedure, the party in the proceedings before the Court of Audit can challenge the judge where there are reasons to doubt his impartiality. Under Article 1218 et seq. of the civil code, civil servants are responsible for damages caused to the State during the performance of their duties. Under Article 395 No. 4 of the code of civil procedure, final judgments can be recalled if they are based on errors of fact which result from the acts and documents of the case. Under Article 1 quinquies of Law No. 20 of 14 January 1994, final judgments can be recalled with a view to excluding a person from his joint liability.
| 0
|
train
|
001-61651
|
ENG
|
AUT
|
CHAMBER
| 2,004
|
CASE OF LOFFLER v. AUSTRIA (No. 2)
| 4
|
Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Georg Ress;Mark Villiger
|
4. The applicant was born in 1944 and lives in Linz. 5. On 10 April 1986 the Linz Regional Court instituted preliminary investigations on the suspicion of murder against the applicant and remanded him in custody. On 31 March 1987 a Court of Assizes (Geschworenengericht) at the Linz Regional Court (Landesgericht) convicted the applicant of murder and sentenced him to eighteen years' imprisonment. On 15 September 1987 the Supreme Court (Oberster Gerichtshof) dismissed the applicant's plea of nullity and appeal against sentence. 6. On 6 September 1990 the applicant requested the re-opening of the criminal proceedings against him. On an unspecified date the Linz Regional Court dismissed this request. On 15 June 1992 the Linz Court of Appeal (Oberlandesgericht) granted the applicant's appeal and reopened the criminal proceedings against him. On 23 June 1992 the applicant was released. New preliminary investigations were instituted against him. 7. On 10 May 1993 the applicant instituted official liability proceedings (Amtshaftung) against the Republic of Austria. He claimed compensation for damages caused by his conviction, which had been annulled, and his detention which lasted approximately six years and two months. He further filed a request for legal aid. 8. On 6 June 1993 the case was transferred to the Steyr Regional Court. The Republic of Austria subsequently filed an appeal against the decision ordering the delegation. On 12 July 1993 the Republic of Austria withdrew their appeal. 9. On 19 August 1993 the Republic of Austria filed a statement of defence. 10. On 6 September 1993 the Presiding Judge (Vorsitzender) of the Steyr Regional Court dismissed the applicant's request for legal aid. 11. Upon the applicant's appeal, the Linz Court of Appeal quashed this decision. 12. On 12 October 1993 the Steyr Regional Court granted the applicant's request for legal aid. 13. In the meantime, on 27 September 1993, the Regional Court had rejected submissions filed by the applicant. The applicant's appeal was to no avail. 14. A hearing scheduled for 13 December 1993 had to be cancelled due to illness of the Presiding Judge. 15. On 15 March 1994 the Steyr Regional Court held a hearing and suspended the official liability proceedings, as the criminal proceedings against the applicant were still pending. The applicant appealed against this decision. On 10 August 1994 the Court of Appeal dismissed this appeal. 16. On 29 August 1996 the Assize Court acquitted the applicant of the charge of murder, but dismissed his application for compensation for detention (Haftentschädigung) under the Criminal Proceedings Compensation Act (Strafrechtliches Entschädigungsgesetz). 17. On 6 November 1996 the Court of Appeal allowed the applicant's appeal and stated that the applicant was entitled to a compensation under Section 2 § 1(b) and 1(c) of the Criminal Proceedings Compensation Act. 18. On 4 September 1996 the Steyr Regional Court decided to continue the official liability proceedings. 19. In the meantime, on 11 March 1996 the applicant instituted further official liability proceedings. On 28 June 1996 the Linz Court of Appeal transferred the case to the Steyr Regional Court. On 3 October 1996 the Supreme Court dismissed the Republic of Austria's appeal. 20. On 7 December 1996 the Steyr Regional Court decided to join the official liability proceedings. 21. On 11 March 1997 the Steyr Regional Court found that the competent presiding judge was biased and allocated the case to another judge. 22. On 25 June, 8 October 1997 and 15 October 1998 the Steyr Regional Civil Court held hearings. At the hearing of 25 June 1997 the applicant submitted that his claim was also based on the Criminal Proceedings Compensation Act. 23. On 14 September 1998 the applicant extended his claim. 24. On 11 March 1999 the Steyr Regional Court partly allowed the applicant's claim and granted him compensation of ATS 42,912. The applicant and the Republic of Austria appealed against this decision. 25. On 9 July 1999 the Supreme Court delegated the case to the Vienna Court of Appeal. 26. On 18 October 1999 the Vienna Court of Appeal allowed the applicant's appeal for procedural deficiencies and remitted the case to the court of first instance. 27. On 18 November 1999 the Supreme Court transferred the case to the Vienna Regional Court. 28. On 28 February 2000 the applicant requested the Supreme Court to transfer the case back to the Steyr Regional Court. On 10 March 2000 the Supreme Court dismissed the applicant's request. 29. On 24 May 2000 the Vienna Regional Court held a hearing and decided to appoint an expert in order to assess the applicant's loss of earnings. It further ordered the applicant to submit the relevant documents concerning his loss of earnings. The applicant submitted the documents on 15 June 2000. 30. On 1 October 2000 the Vienna Regional Court appointed an expert to assess the applicant's loss of earnings and ordered her to submit the expert opinion within three months. 31. On 22 February 2001 the expert requested the Regional Court for an extension of the time-limit. The Regional Court granted the request on the same day. 32. On 25 May 2001 the applicant filed a request under Section 91 of the Court Act (Gerichtsorganisationsgesetz) for a time-limit to be fixed for the delivery of the expert opinion and a hearing to be held. 33. On 29 May 2001 the expert submitted her opinion. 34. On 25 June 2001 the Vienna Court of Appeal dismissed the applicant's request under Section 91 of the Court Act. 35. On 11 December 2001 the Regional Court held a hearing. Upon the applicant's request it ordered the expert to supplement the expert opinion within three months. 36. On 20 March 2002 the applicant filed again a request under Section 91 of the Court Act for a time-limit to be fixed for the delivery of the expert opinion. 37. On 29 March and on 4 April 2002 the Regional Court requested the expert to submit her opinion. On 10 April 2002 the expert filed her opinion. 38. On 5 June 2002 the Vienna Court of Appeal dismissed the applicant's application under Section 91 of the Court Act. 39. Upon the applicant's request the Regional Court, on 10 July 2002, appointed another expert to assess the applicant's loss of earnings within three months. On 10 December 2002 the new expert submitted her opinion. 40. On 10 March 2003 the Regional Court held a hearing. 41. On 29 July 2003 the Regional Court gave a partial decision (Teilurteil) and granted the applicant compensation in the amount of approximately 236 000 € as well as a monthly annuity. On an unspecified date it decided upon the applicant's further claims. 42. Appeal proceedings before the Vienna Court of Appeal are still pending.
| 1
|
train
|
001-72900
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,006
|
TANASENKO v. MOLDOVA
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mrs Lyubov Tanasenko, is a Ukrainian national, who was born in 1937 and lives in the village of Liubitkoe, Ukraine. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Pârlog. The facts of the case, as submitted by the parties, may be summarised as follows. In 1998 the applicant brought a civil action against a person who refused to pay his debt to her (N.). On 6 April 1998 the Botanica District Court found for the applicant and ordered N. to pay her 56.447 Moldovan lei. The applicant obtained an enforcement warrant which the Bailiff did not enforce. The applicant requested and obtained, on 1 July 1998, a court order for the seizure of N.’s apartment. N. requested the same court to lift the seizure and on 22 November 1999 this request was granted. On 30 December 1999 N. purchased the apartment from the State (in the privatisation process). The applicant requested a new order for the seizure of N.’s apartment, which was granted on 16 February 2000. This order was annulled by the same court on 16 March 2000. On 24 March 2000 the same court issued another order for the seizure of N.’s apartment, which was annulled on 28 April 2000. The applicant did not appeal against any of the court decisions to annul the seizures. On 3 May 2000 the apartment was sold to a third party; N. left for Russia. The applicant subsequently complained about the non-enforcement of the decision to various authorities, which responded that enforcement was not possible in view of the fact that the applicant’s debtor lacked any assets and had left the country. The judgment of 6 April 1998 has not been enforced to date. The relevant domestic law has been set out in this Court’s judgment in the case of Prodan v. Moldova, no. 49806/99, ECHR 2004... (extracts).
| 0
|
train
|
001-75287
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,006
|
DURGUN AND OTHERS v. TURKEY
| 4
|
Inadmissible
| null |
The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Ali Cemal Zülfikar, a lawyer practising in Elazığ. The facts of the case, as submitted by the applicants, may be summarised as follows. Until 1994 the applicants lived in Bilekli village, in the Hozat district in Tunceli province, where they own property. It is to be noted that the title deeds to the property that Polat Ferhat, Mevlit Ceviz and Kemal Durgun used in Bilekli bear their mothers’ and fathers’ names. In October 1994 security forces forcibly evacuated Bilekli on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live. On 20 October 1994 Kemal Durgun’s father filed a petition with the District Governor’s office in Hozat and requested redress for the damage he suffered and sought permission to return to their village. On 1 December 1994 Kemal Durgun’s father filed a petition with the Prime Minister’s office requesting provided with government aid and asking the authorities to expropriate his property. On 14 January 1995 Kazım Demirkılıç filed a petition with the Ministry of Public Works and Settlement requesting permission to return to his village and compensation for the damage he suffered. On 20 January 1995 the Governor’s office in Tunceli sent a letter to Kemal Durgun’s father and informed him about the aid supplied by the District Governor’s office in Hozat. They further noted that there was no legal ground for expropriation of property. On 11 November 2000 Kemal Durgun filed a petition with the District Governor’s office in Hozat requesting redress for the damage he suffered and seeking permission to return to his village. On 11 and 20 November 2000 the applicants lodged petitions with the Public Prosecutor’s office in Hozat complaining about the burning down of their house by security forces. On 13 February 2001 the Public Prosecutor sent a letter to the applicants stating that he had issued a decision of non-jurisdiction and had sent the case- files to the Administrative Council in Hozat. The Public Prosecutor further noted that the latter authority had decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified. Until 1994 the applicants lived in Halitpınar village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Kamber and Veli Çelik did not submit any certificate to the Court attesting their ownership of the property in Halitpınar. In October 1994 security forces forcibly evacuated Halitpınar on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live. On an unspecified date the applicants lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their house by security forces. On 9 December 1994 the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified. On 16 August 1995 and on 2 February 1999 the headman of Halitpınar village, Süleyman Toprak, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Halitpınar village and asked the aforementioned authorities to allow the residents to return to their village. He further requested compensation for the damage they suffered. He received no response. On 18 February 1998 Cafer Toprak filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 25 June 1998 the District Governor’s office in Ovacık sent the following reply to him: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On an unspecified date Cemal Toprak, Kamber Çelik and Veli Çelik filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village. On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until 1994 the applicants lived in Karaoğlan village, in the Ovacık district in Tunceli province, where they own property. It is to be noted that Ms. Güllü Gülerdoğan did not submit any certificate to the Court attesting her ownership of the property in Karaoğlan. In October 1994 security forces forcibly evacuated Karaoğlan on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Elazığ where they currently live. On 27 July 1995 and on 4 August 1995 Hıdır Gülerdoğan filed petitions with the District Agriculture Directorate (İlçe Tarım Müdürlüğü) in Ovacık and the Governor’s office in Tunceli and requested loan for livestock. On 11 September 1995 Güllü Gülerdoğan and Hıdır Gülerdoğan filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. On 11 October 1995 the Governor’s office in Tunceli sent the following reply to the applicants: “Your petition containing a request of permission to return to your village has been considered by the District Governor’s office. You will be informed about the developments by the headman (muhtar) of the village.” On 18 February 1998 Hıdır Gülerdoğan filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On the same day the District Governor’s office in Ovacık sent the following reply to the applicant: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On 16 August 1998 and on 2 February 1999 the headman of Karaoğlan village, Düzgün Yıldız, filed petitions with the President’s office, the General Headquarters of Refah Partisi (Welfare Party), the Prime Minister’s office, the Presidency of the Grand National Assembly of Turkey, the Ministry of Public Works and Settlement, the Governor’s office in Tunceli, the District Governor’s office in Ovacık and the Emergency Regional Governor’s office on behalf of the residents of Karaoğlan and requested the aforementioned authorities to allow the residents to return to their village. He further requested compensation for the damage they suffered. He received no response. On an unspecified date the applicants filed petitions with District Governor’s office in Ovacık requesting permission to return to their village. On 10 June 2000 the District Governor’s office in Ovacık sent the following reply to the applicants: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 20 August 2004 the representative of the applicants informed the Court that Mr Fedi Gülerdoğan had died and his heirs, Fındık Gülerdoğan, Cafer Gülerdoğan, Sevgi Canpolat and Serdar Güneş wish to pursue the application. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).
| 0
|
train
|
001-75293
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,006
|
CICEK v. TURKEY
| 4
|
Inadmissible
| null |
The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul. The facts of the cases, as submitted by the parties, may be summarised as follows. Until 1994 the applicants lived in Hamzabey, a hamlet of Baharlar village, in the district of Lice, in Diyarbakır province, where they own property. It is to be noted that Selam Çiçek and Ramazan Atalay did not submit their authority forms. In May 1994, following the incidents that took place in the district of Lice, security forces arrived in Hamzabey and forcibly evicted the applicants from their hamlet. On 25 March 1996 the mayor of Baharlar village, Mr Sait Polat, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor and the State of Emergency Governor requesting permission to return to their hamlet. On 10 February 2000 the mayor of Baharlar village filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor, the State of Emergency Governor and the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) requesting permission to return to their hamlet. He further requested the Ministry to provide aid for the infrastructure of the hamlet. He also noted that the inhabitants of Hamzabey were willing to return to their hamlet. On 3 October 2001 the mayor of Baharlar village filed a petition, on behalf of the applicants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet. On 23 July 2002 three inhabitants of Hamzabey hamlet filed a petition, on behalf of the other inhabitants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet and a solution to the problems of infrastructure of the hamlet. It is to be noted that they did not receive any response to their petitions. On an unspecified date three Members of Parliament, Mr Nurettin Dilek, Mr Sebgetullah Seydaoğlu and Mr Haşim Haşimi, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Deputy Prime Minister, the Minister of the Interior, the Minister of Public Works and Settlement, the State of Emergency Regional Governor and the Diyarbakır Governor. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).
| 0
|
train
|
001-5352
|
ENG
|
POL
|
ADMISSIBILITY
| 2,000
|
STEPOWSKI v. POLAND
| 4
|
Inadmissible
| null |
The applicant, a Polish citizen born in 1939, is an engineer residing in Warsaw. A. 1. The custody proceedings On 29 November 1988 the Warszawa-Praga District Court dissolved the applicant’s marriage, awarded custody of one of their sons to the applicant, and that of the other to his former wife. On 4 September 1989 the applicant lodged an action with the Warszawa-Praga District Court, claiming that the parental rights of his former wife be restricted and that the custody of both children be awarded to him. The court held hearings on 13 October 1989, 27 October 1989, 21 November 1989, 20 March 1990, 26 April 1990, 30 April 1990, 23 October 1990 and 27 November 1990. On 8 January 1991 the applicant complained to the President of the District Court, alleging that the presiding judge lacked impartiality, that she had been conducting the proceedings in a chaotic manner, and that she had been distorting his oral submissions to the court when dictating them for the record. In a reply of 21 January 1991, he was informed that it was open to him to submit at any time written objections to the case-file as regards the manner in which the minutes of the hearings were being taken. It was further acknowledged that certain complaints were well-founded and that the attention of the judge concerned would be drawn to them. The court held further hearings on 12 March 1991 and 28 May 1991. On the latter date the applicant requested that the judge step down, alleging her bias. Apparently this request was later dismissed. The court held the next hearing on 22 January 1992. On 2 April 1992 the Family Diagnostics Centre submitted its expert opinion to the court. On 8 May 1992 the applicant lodged objections to the report. On 11 May 1992, 15 June 1992, 29 June 1992 and 29 July 1992 further hearings were held. Apparently, at the last of these hearings, the court ordered that a further expert opinion be prepared on the parties’ parental skills. This opinion was submitted to the court on 5 November 1992. On 20 November 1992 the applicant lodged his pleadings with the court, arguing that this opinion was also ill-founded. He submitted that the report contained serious discrepancies and errors. He stressed that the experts had had particular regard to the previous report of 2 April 1992, and that they had failed to address adequately the questions put by the court. On 30 November 1992 the court dismissed the applicant’s request to have the parental rights of his former wife restricted, and ordered that one of the sons should reside with his mother. The court apparently relied, inter alia, on an expert opinion of the Family Diagnostics Centre of 5 November 1992. The applicant appealed. On 15 March 1993 the Warsaw Regional Court granted the appeal after a hearing and remitted the case to the lower court. On 7 June 1993 a hearing was held. On 15 June 1993 the District Court refused to order as an interim measure that both boys immediately move to the applicant’s apartment, considering that they felt safe with their mother and that there were no reasons justifying such a measure. The court further noted that the children were spending each weekend with their father. On 21 July 1993 the applicant complained to the President of the court about the alleged bias of the presiding judge. He alleged that there were differences between the version of the decision of 15 June 1993 kept in the case-file and that which had been served on him. He further complained that the proceedings were unfair. In the President’s reply of 23 August 1993, it was explained that the difference, an omission of one word in the written grounds of the decision, had been caused by a clerical error, and that otherwise the texts had been identical. Apologies were presented to the applicant. In a letter of 7 September 1993, the applicant again complained about discrepancies between two versions of the same decision. In a reply of 22 September 1993, the Deputy President of the Regional Court acknowledged that there were minor discrepancies between various copies of the decision, but stressed that they were devoid of any legal significance, in that they did not affect the essence of the decision. On 3 December 1993 the applicant complained again about these errors. On 29 December 1993 the Regional Court dismissed the applicant’s appeal against the refusal to order interim measures on 15 June 1993. On 15 March 1994 the applicant again complained about the errors in the text of the decision of 15 June 1993. On 5 September 1994 the applicant objected to a new expert report prepared by the Family Diagnostics Centre, complaining that the relevant examinations had been cursory and that the conclusions of the specialists were erroneous. He requested that the experts, who had prepared the opinion, be questioned by the court. He further requested the court to take evidence from the tape recording made during the examination of the children by the experts. On 8 September 1994, 10 October 1994 and 10 November 1994 hearings were held. On 10 October 1994 the applicant lodged a request that the judge step down, alleging her lack of impartiality. Apparently this request was later dismissed. The next hearing was held on 18 October 1995. On 13 December 1995 the District Court discontinued the proceedings as the applicant had withdrawn his request, in view of the fact that his son M. had moved into his apartment. 2. Labour law proceedings On 31 May 1996 the applicant lodged an action against his employer with the Warsaw District Court, claiming payment of certain parts of his salary. On 23 September 1996 the District Court apparently allowed his claim in part. On 21 October 1997 the applicant requested retroactive leave to lodge an appeal outside the statutory time-limit. His request was dismissed on 10 February 1998 by the Warsaw District Court. The court noted that the applicant had failed to comply with the statutory time-limit of fourteen days for lodging an appeal. The court established that the final hearing in the case had been fixed for 23 September 1996. Four summonses for this hearing had been sent to the applicant: on 10 June 1996, 10 July 1996, 30 July 1996 and 8 September 1996. The applicant had failed to fetch any of them from the post office. The court considered them to have been duly served on him. The court further noted that the applicant had been on holiday from 30 June to 18 July 1996, and later from 4 to 26 August 1996. From May to November 1996 he had not lived in his apartment, as he had been taking care of his mother. However, the court considered that the applicant, by failing to take any measures in order to ensure that the court documents be duly served on him, had failed to show the diligence which could reasonably be expected from a person engaged in judicial proceedings. The applicant appealed against this decision. On 16 April 1998 the Warsaw Regional Court upheld the contested decision, considering that the applicant had failed to adduce any circumstances capable of showing that he had shown due diligence, particularly as he had left on holiday without informing the court thereof. The court further considered that he had not shown that there had been objective and insurmountable obstacles to the effective service of the four summonses to the hearing of 23 September 1996 on him. B. Relevant domestic law Article 168 § 1 of the Code of Civil Procedure, insofar as relevant, provides that if a party to proceedings fails to comply with the prescribed time-limit through no fault of its own, the court shall, on that party’s request, grant leave to appeal out of time. Article 136 of the Code of Civil Procedure provides that the parties to proceedings are under an obligation to inform the court about any change of address. Under § 2 of this provision, if they fail to do so, a decision to be served on the party shall be filed in the case-file and shall be regarded as having been duly served, unless the court knows the new address of that party.
| 0
|
train
|
001-104849
|
ENG
|
RUS
|
CHAMBER
| 2,011
|
CASE OF MAAYEVY v. RUSSIA
| 4
|
Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
|
5. The first applicant is the mother and the second applicant is the father of Mr Isa Maayev, born in 1975. The applicants were born in 1957 and 1942 respectively. They live in the town of Urus-Martan, in the Chechen Republic. 6. At the material time the applicants and Isa Maayev resided at 64 Titova Street in Urus-Martan. Their property consisted of two houses. 7. On 10 March 2003 the applicants and Isa Maayev were at home in one of the houses. 8. At about 2 a.m. on 10 March 2003 about ten men in camouflage uniforms burst into the applicants’ bedroom. All of the intruders wore masks, were armed with sub-machine guns and spoke unaccented Russian. The intruders blinded the applicants with their flashlights. When the first applicant asked them why they were there, they ordered her in Russian to lie on the floor and pushed her to the ground. One of the intruders stepped on her back, pressed his gun against her neck and told her to remain quiet. At the same time several other armed men pushed the second applicant out of bed, tied his hands and asked him where he kept his weapons. He replied that there were no weapons in the house and they then ordered him to be silent. One of the armed men pressed his gun against the second applicant’s head. While the applicants stayed on the ground, several intruders went into another room where Isa Maayev was sleeping. After a while the armed men in the applicants’ bedroom ordered the applicants not to move and left the room. 9. The first applicant immediately ran to the window and saw four other men in the courtyard. One of them punctured the tyres of the applicants’ car. Another man broke the lamp above the entrance to the house. All of the men then left the courtyard. The first applicant followed them outside and saw that they had turned right into Mayakovskogo Street. She then heard the noise of a vehicle and a sound as if someone was being thrown into it. When she returned home she realised that the armed men had taken Isa Maayev away and she started crying and shouting for help. 10. According to a written statement by M.K., enclosed by the applicants, on the night of 10 March 2003 she felt unwell and went outside. She heard shouting coming from the applicants’ house. Immediately thereafter she saw a group of men moving quickly from the applicants’ house in the direction of Mayakovskogo Street. M.K. immediately rushed to the applicants’ house. 11. According to a written statement by A.M., at about 2 a.m. on 10 March 2003 she was returning home from her late shift at a bakery where she worked at the time. On her way home she saw several UAZ vehicles parked at the corner of Mayakovskogo and Bolnichnaya streets, and a number of camouflaged men whom she identified as servicemen. The servicemen were armed and some of them were masked. They were standing one metre apart from each other and kept themselves in formation. She quickly passed by them without being stopped (despite the curfew) and initially went in the direction of her home, but then heard the first applicant’s screaming and turned back to go to the applicants’ house. She found the first applicant and M.K. there. A.M. untied the second applicant and then accompanied the applicants to the place where she had seen the UAZ vehicles, but by the time they arrived there the vehicles and the servicemen had already left. 12. According to the statement by M.K., all of the people present in the applicants’ house heard the noise of departing vehicles and, after untying the second applicant, they tried to follow the vehicles by their noise but did so in vain. Their attempt brought them to the centre of Urus-Martan, where they reported the matter to the local police. 13. The applicants have had no news of Isa Maayev since 10 March 2003. 14. The above account of the events is based on the information contained in the application form; written statements by the applicants dated 22 December 2006; and written statements by M.K. and A.M. dated 21 December 2006. 15. The Government submitted that the domestic investigation had obtained no evidence that Isa Maayev had been abducted by State agents. 16. Immediately after the intruders left with Isa Maayev, the applicants, accompanied by A.M. and M.K., went to the local police station and alerted the police officers to the abduction. An on-duty police officer took note of their complaint and told them to return home. 17. On 10 March 2003 two police officers came to the applicants’ house and questioned them about the circumstances of the abduction of Isa Maayev. The applicants were allegedly told that the police would not be able to help them find their son. 18. On the same date the applicants filed a written complaint about the abduction of Isa Maayev with the prosecutor’s office for the UrusMartanovskiy District (“the district prosecutor’s office”). 19. On 13 March 2003 the second applicant complained to the Special Envoy of the President of the Russian Federation in the Chechen Republic about the abduction of his son. He submitted, in particular, that Isa Maayev had been abducted by a group of armed camouflaged men who had arrived in several vehicles, including a UAZ vehicle and an armoured personnel carrier (“APC”). 20. On 17 March 2003 the applicants allegedly found a note bearing the handwriting of Isa Maayev at the entry to their house. The note stated that the applicants were to pay 1,000 United States dollars to an unidentified person, upon which Isa Maayev would be released. The applicants were instructed to pay half of the sum before the referendum on the Constitution for Chechnya which was to take place on 23 March 2003. The remaining amount was to be paid after the referendum. The applicants obtained the money and made preparations to pay it but no one showed up to collect it. 21. On 18 March 2003 the applicants’ relative, Mr I., told them that on 10 March 2003 Mr A., who was a police officer and a friend of Mr I., had been on duty together with other police officers at the local school building. The police had been guarding the building because it was to be used as a polling station in the forthcoming referendum. Mr I. said that Mr A. had told him that on the night of 10 March 2003 he had seen a big group of Russian servicemen in camouflage uniforms. They had been leading a man away and urging him to hurry. Mr A. had allegedly also heard the servicemen throw the man into a vehicle. According to Mr A., on 16 March 2003 during the night, when he was again on guard duty at the school building, the police officers had spotted an UAZ car parked between the school and the applicants’ house. There had been three people in the car. The police officers had contacted the local police and had been advised that those people were members of the Federal Security Service (“the FSB”), that they were carrying out a special operation in Urus-Martan and that the police officers were not to interfere. 22. Subsequently, the applicants contacted two military servicemen from a military unit located near Urus-Martan. The applicants did not give their names. Those servicemen allegedly claimed that a “Sergey” from the FSB department in Urus-Martan had “[taken] over” the case concerning the applicants’ son. 23. On 20 March 2003 the district prosecutor’s office instituted an investigation into the abduction of Isa Maayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case was assigned the number 34032. 24. On 9 April 2003 the first applicant was granted victim status in the proceedings in case no 34032. 25. On 11 June 2003 the head of the Urus-Martanovskiy District Department of the Interior (“the ROVD”) informed the first applicant that his service was carrying out various operational and search measures aimed at establishing the whereabouts of Isa Maayev and identifying those responsible for his abduction. 26. By a letter of 21 July 2003 the Department for the Supervision of the Investigation of Crimes in the Chechen Republic (“the supervision department”) notified the second applicant that on 20 May 2003 the investigation of case no 34032 had been suspended owing to a failure to identify the perpetrators. 27. On 4 August 2003 the second applicant complained of the abduction of his son to a number of State authorities. In his complaint he submitted, in particular, that Isa Maayev had been abducted by armed men in camouflage uniforms and masks who had arrived in several UAZ and VAZ-2109 vehicles. 28. On 27 August 2003 the Chechen Department of the FSB notified the second applicant that the department’s officials had not arrested Isa Maayev and that the department was carrying out various search measures aimed at establishing his whereabouts. 29. On 6 September 2003 the supervision department forwarded the second applicant’s complaint of the abduction of Isa Maayev to the district prosecutor’s office and ordered it to verify his submissions and to inform him accordingly. 30. On 8 September 2003 the district prosecutor’s office responded to the supervision department that it had already verified the information contained in the second applicant’s complaint and that those submissions did not contain new evidence which would prompt the resumption of the investigation. The letter also stated that the district prosecutor’s office had taken all investigative steps which could be carried out in the absence of information as to the persons implicated in the abduction. A copy of the letter was forwarded to the second applicant. 31. On 14 October 2003 a prosecutor from military unit no. 20102 informed the first applicant that the inquiry conducted by the prosecutor’s office of that military unit had not established that the federal military were implicated in the abduction of Isa Maayev. 32. On 20 October 2003 the military commander of the UrusMartanovskiy District notified the second applicant that the military commander’s office had not had any information on either the whereabouts of Isa Maayev or the eventual implication of officers from the Ministry of the Interior in his disappearance. 33. By a letter of 8 December 2003 the supervision department informed the second applicant that on 24 November 2003 the district prosecutor’s office had set aside the decision to suspend the investigation of case no. 34032 and that operational and search measures aimed at identifying the persons responsible for the abduction of Isa Maayev and establishing his whereabouts were under way. 34. On 10 March 2004 the supervision department forwarded the first applicant’s complaint about the abduction of Isa Maayev to the district prosecutor’s office and requested that it activate the investigation. 35. By a letter dated 23 August 2004 the Prosecutor’s Office of the Chechen Republic notified the first applicant that they had examined her complaint of the abduction of Isa Maayev, which had been forwarded to them by the State Duma. They informed her that the investigation of case no. 34032 had been suspended on an unspecified date and that various operational measures aimed at establishing the whereabouts of her son and identifying the perpetrators were under way. 36. By a letter of 30 November 2004 the district prosecutor’s office informed the first applicant that it had examined her complaint, which had been forwarded to it by the Prosecutor’s Office of the Chechen Republic. The letter further stated that the investigation of case no. 34032 had been suspended on 9 March 2004. 37. On 17 June 2005 the deputy prosecutor of the UrusMartanovskiy District notified the first applicant that operational and search measures in connection with the proceedings concerning case no. 34032 were under way. Letters along the same lines from the supervision department and the Urus-Martanovskiy ROVD were sent to the first applicant on 27 June and 13 July 2005. 38. On 20 September 2005 the first applicant complained to the prosecutor of the Urus-Martanovskiy District that the investigation into the abduction of Isa Maayev had not produced any results. She submitted that Isa Maayev had been abducted by armed men in camouflage uniforms who had arrived in UAZ and VAZ-2109 vehicles. She requested that the investigation be resumed and that she be granted access to the materials of case file no. 34032 and be given information on the progress of the investigation. It appears that her complaint was left without reply. 39. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 34032, referring to Article 161 of the Russian Code of Criminal Procedure. They only provided copies of: several decisions to open, suspend and resume the investigation; records of several witness interviews; a crime scene inspection report; and requests for information addressed to various State authorities and some of the replies to them. Some of the documents submitted by the Government were illegible and some were legible only in part. It appears that the latest document provided by the Government was dated 24 May 2007. In so far as the documents submitted by the Government were legible, the information contained therein may be summarised as follows. 40. On 10 March 2003 the applicants complained of the abduction of Isa Maayev to the ROVD. According to the stamp on their complaint, it was received by that authority on the same date. 41. On 20 March 2003 the town prosecutor’s office instituted an investigation into the abduction of Isa Maayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 42. On 1 April 2003 the first applicant was interviewed. She stated that at about 2 a.m. on 10 March 2003 a group of about ten to twelve armed men in camouflage uniforms and masks had burst into her house at 64 Titova Street, where she had been staying with her husband and Isa Maayev. They had ordered the first applicant and her husband to lie down, speaking unaccented Russian. The first applicant had inferred that the intruders were servicemen. They had tied her husband up and had taken away her son. Before leaving, they had punctured the tyres of the applicants’ car and had broken the lamp over the entry to the house. The intruders had left by foot. Shortly thereafter the second applicant had gone to the ROVD and alerted the police to the abduction. 43. On 1 April 2003 the investigators interviewed the second applicant as a witness. He stated that at about 2.30 a.m. on 10 March 2003 a group of armed people in camouflage uniforms and masks had burst into his house. The intruders had blinded the applicant with their flashlights, pushed him face down on the floor and tied his hands. They had turned everything in the house upside down and had taken away Isa Maayev. Once they had left, the second applicant had gone to the ROVD and alerted them to the abduction. An on-duty officer from the ROVD had called the military commander’s office in the second applicant’s presence and had informed them of the kidnapping. The second applicant thought that the intruders must have left by foot, as he had not seen any vehicles. 44. On 3 October 2003 the second applicant was again interviewed as a witness. He stated that at about 2.30 a.m. on 10 March 2003 a group of ten to fifteen armed people in camouflage uniforms and masks had burst into his house, blinded him with their flashlights, tied up his hands and pushed him and his wife to the floor. Meanwhile some of the intruders had entered an adjacent room where Isa Maayev was sleeping. The intruders had spoken unaccented Russian. Several minutes later they had taken Isa Maayev outside and left. The applicants had not been able to see anything because they had been lying face down on the floor. When the second applicant had managed to stand up, he had seen through the window that the armed men were leaving the second house. Shortly thereafter the second applicant had gone to the ROVD to complain of the abduction of his son. 45. On 9 April 2003 the first applicant was granted victim status in the proceedings concerning case no. 34032 and was interviewed. She submitted that on 10 March 2003 her family, including her husband, Isa Maayev and herself, had stayed at home at 64 Titova Street. At about 2 a.m. she had been woken up by some noise and had seen a group of armed men in camouflage uniforms and masks. They had pushed her family members to the floor and had taken away her son, without explaining the reasons for his detention. The first applicant had heard the noise of departing vehicles. 46. On 27 November 2003 the investigators re-interviewed the first applicant. She confirmed her previous accounts of the events of 10 March 2003 and submitted, in addition, that the intruders had broken a lamp above the entrance to the house. She also stated that the intruders had come and gone by foot and that she had discovered the absence of Isa Maayev after they had left. 47. On 27 November 2003 the investigators interviewed S.M. as a witness. He stated that he was the missing person’s brother and that on the night of 10 March 2003 he had been woken up by the crying and shouting of the first applicant. When S.M. had entered his parents’ room, the first applicant had told him that a group of about ten to fifteen armed men in camouflage uniforms and masks had taken away Isa Maayev. S.M. submitted that he had heard the intruders break the lamp which was outside. When he looked outside he had not been able to see anything. 48. On 28 November 2003 the investigators interviewed A.S. as a witness. She stated that she was Isa Maayev’s wife and that on the night of his abduction Isa Maayev had been sleeping in the house with his parents, while she had stayed with the children in another house. At about 2 a.m. on 10 March 2003 a group of ten to fifteen armed men in camouflage uniforms and masks had burst into A.S.’s room. They had spoken unaccented Russian. A.S. had started shouting but had been told to remain silent. The intruders had searched her room and had turned everything there upside down. When they had been leaving, A.S. had seen one of them break the lamp above the entrance to the house. After their departure the first applicant had told A.S. that the intruders had abducted Isa Maayev. 49. On 11 February 2004 the first applicant was interviewed again. She stated that on 10 March 2003 a group of twenty to thirty armed men in camouflage uniforms and masks had burst into her room and had abducted her son. She also stated that the abductors had come and gone by foot because she had not heard the noise of either military or other vehicles. 50. On 14 February 2004 A.M. was interviewed as a witness. She stated that she was the applicants’ neighbour, that she herself knew nothing of the circumstances of the abduction of Isa Maayev and that she had learnt about it from his relatives. On the night of 10 March 2003 A.M. had been sleeping in her house. At a certain point her neighbour M.K. had woken her up, saying that there was noise from vehicles outside. Together they had gone to the Maayevs’ home. Someone there had told A.M. that armed men in camouflage uniforms, who had arrived in two UAZ vehicles, had abducted Isa Maayev. When A.M. had gone to the applicants’ home, she had not herself seen either the abductors or their vehicles. According to A.M., the people who had seen the vehicles had been unable to identify them because they had not had licence plates. 51. On 17 February 2004 the investigators interviewed M.K. as a witness. She stated that she had been living in the vicinity of the applicants’ house and that at about 3 a.m. on 10 March 2003 she had been woken up by shouting coming from there. At the same time, she had heard the noise of vehicles travelling along Mayakovskogo Street and had then seen several vehicles that had looked like trucks, but she was unable to identify their make. When she had arrived at the applicants’ home, the first applicant had told her that a large group of armed men in camouflage uniforms and masks had abducted Isa Maayev and that the abductors had spoken unaccented Russian. The applicants had immediately gone to the ROVD to complain of his abduction. 52. On 2 March 2004 the investigators interviewed the second applicant for the third time. He confirmed his previous accounts of the events of 10 March 2003 and stated, in addition, that the abductors had come to his house by foot and that he did not know if they had come in military or other vehicles because he had not seen them. 53. On 26 April 2007 the investigators interviewed L. Ya. as a witness. He stated that he was the applicants’ neighbour and that he had learnt of the abduction of Isa Maayev from unspecified individuals. L. Ya. had not heard any noise of military or other vehicles on the night of the abduction. 54. On 11 May 2007 the first applicant was interviewed for the fourth time. She confirmed her previous accounts of the events given to the investigation. She stated, in addition, that she had heard the noise of vehicles outside shortly after the abduction of Isa Maayev and suggested that the noise had come from Mayakovskogo Street, which ran parallel to Titova Street. However, she could not provide more detailed information concerning the vehicles or their make. 55. Between 20 March and 10 October 2003 the district prosecutor’s office requested that a number of law-enforcement authorities, including the FSB, the Ministry of the Interior and the military commander’s office, inform it whether they had information on Isa Maayev’s whereabouts, whether they had conducted special operations in the area and whether they had arrested the applicants’ son. It appears that no relevant information was obtained in reply. 56. On 24 November 2003 the investigators inspected the crime scene. According to the crime scene inspection report of the same date, no objects of interest to the investigation were discovered during the inspection. 57. Between 24 and 26 March 2004 and 2 and 3 May 2007 the investigators sent out further requests to a number of State authorities, seeking information on Isa Maayev’s whereabouts. There is no indication that any relevant information was obtained in reply. 58. On 19 May 2007 the chief of police for the Urus-Martanovskiy district replied to the Urus-Martanovskiy district prosecutor, stating that it had been impossible to establish what power structures and military departments of the Urus-Martanovskiy district had been equipped with Ural and UAZ vehicles in 2003, to identify heads of departments equipped with such vehicles, or to verify whether the security forces in the UrusMartanovskiy district had kept logbooks concerning the use of such vehicles, in order to identify the vehicles which had left the premises of the State authorities in question at the time of the abduction of Isa Maayev. Information concerning the heads of the military commander’s office, the FSB department and the police was restricted. 59. On 20 May 2003 the investigation of case no. 34032 was suspended owing its failure to identify the perpetrators. A letter informing the first applicant of that decision was sent to her on 23 May 2003. 60. On 1 October 2003 the Urus-Martanovskiy District prosecutor quashed the decision of 20 May 2003 as premature and unfounded. 61. On 1 November 2003 the investigation was suspended because of its failure to identify those responsible for the abduction. 62. On 24 November 2003 the Urus-Martanovskiy District prosecutor set aside the decision of 1 November 2003 to suspend the investigation, finding that it had been issued despite a failure to take all relevant investigative steps and in breach of the applicable legislation. 63. On 24 December 2003 the investigation of case no. 34032 was suspended because of its failure to identify those responsible for the abduction. 64. On 5 February 2004 the deputy prosecutor of the Chechen Republic quashed the decision of 24 December 2003 and ordered the district prosecutor’s office to resume the investigation. 65. On 9 March 2004 the investigation was suspended due to its failure to establish the identities of those involved in the abduction of Isa Maayev. 66. On 21 November 2005 the investigation of case no. 34032 was resumed, owing to the need to examine the first applicant’s complaint in which she sought access to the case file and requested that the investigation be resumed. 67. On the same date the investigators dismissed the applicant’s complaint as unfounded. 68. On 22 November 2005 the investigation was suspended. 69. On 24 April 2007 the investigation of case no. 34032 was resumed, owing to a need to rectify unspecified shortcomings. 70. On 24 May 2007 the investigation of case no. 34032 was suspended. 71. According to the Government, the investigation into the abduction of Isa Maayev is pending. 72. On 11 January 2006 the first applicant complained to the UrusMartan Town Court (“the Town Court”) of the inaction of the investigating authorities, their failure to provide her access to case file no. 34032 and their refusal to allow her to make copies of the case file materials. 73. On 25 April 2006 the Town Court granted the first applicant’s claim in part. It declared unlawful the investigating authorities’ refusal to provide the first applicant access to the case file and ordered them to remedy that shortcoming in so far as documents concerning investigative measures carried out with her participation were concerned. At the same time it found that the district prosecutor’s office had carried out all relevant operational and search measures and dismissed the first applicant’s complaint of the ineffectiveness of the investigation, without providing any further details or specifying what measures had been taken. It also rejected the first applicant’s request for permission to copy documents from the case file. 74. The first applicant appealed. She referred to various specific omissions on the part of the district prosecutor’s office and alleged that the investigation into the abduction of Isa Maayev had been ineffective. She also sought permission to copy documents from the investigation case file. 75. On 16 August 2006 the Supreme Court of the Chechen Republic (“the Supreme Court”) dismissed the first applicant’s appeal. 76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 6769, 10 May 2007).
| 1
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train
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001-80035
|
ENG
|
MKD
|
CHAMBER
| 2,007
|
CASE OF STOIMENOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 3
|
Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award (applicant);Non-pecuniary damage - claim dismissed (members of the applicant's family);Costs and expenses partial award - domestic proceedings
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Peer Lorenzen
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5. The applicant, Mr Jordan Stoimenov who was born in 1963 and lives in Vinica, in the former Yugoslav Republic of Macedonia. 6. On 30 January 2000 the Ministry lodged with the public prosecutor a criminal complaint against the applicant and four other persons for the unauthorised production of, and trade in, drugs and narcotic substances, which was an offence under section 215 of the Criminal Code. 7. On 28 January 2000 the Forensic Science Bureau (Управа за криминалистичка техника) (“the Bureau”) at the Ministry drew up an expert report (no. X-121/2000) on the quality of poppy-tar that had been confiscated from Mr I.P. According to this opinion, all 23 cakes of poppy-tar contained substances which indicated that it was opium. 8. On 30 January 2000 another expert opinion (no. X-122/2000) was issued concerning the quality of 12 cakes of poppy-tar that had been confiscated from Mr M. 9. Both expert opinions were given by the same expert at the Bureau, were almost identically worded and provided succinct information about the technique used to determine the composition of the poppy-tar and the conclusion that it was opium. They read, inter alia, as follows: “... [S]everal tests were carried out on the samples of the substance. Positive results were received as to the existence of alkaloids... A chromatography analysis was made of the samples to determine the chemical composition of the substance. Samples of several alkaloids from our collection and a sample of opium were used for comparison... The analysis of the chromatogram revealed that it was identical to that of the opium, i.e. that the analysed substance contained several alkaloids... The analysis led to the conclusion that the unidentified substance was opium.” 10. According to depositions taken on 30 January 2000 in the pre-trial proceedings, the applicant stated, inter alia: “... When I was a child, I heard from my grandmother and grandfather that they used to have in their possession poppy-tar which they used for medicinal purposes. Mr D. [the third accused] asked me on several occasions whether they still had any... I went to see Mr M. [the first accused], my uncle, and told him about this. We both searched the cellar in my grandfather's house where my uncle used to live. We found about 12 kg of poppy-tar in a plastic bag... I gave the bag to Mr D... The agreement was to divide the money from the sale of the poppy-tar into three parts if Mr D. sold it. He said that he could sell it for 30,000 German marks (DEM)... Some time later Mr D. said that the poppy-tar was of poor quality, as it had been mixed with soil and had [therefore] been difficult to sell. I asked him to return it if he could not sell it so that I could put it back where it came from. However, Mr D. did not return the poppy-tar... Once I visited his house, but he was not there... Mr M. did not know that there was poppy-tar in the cellar. The idea to search for it was mine and I was incited to do so by Mr D...” 11. Mr D. stated, inter alia: “...Jordan [the applicant] told me that he had some 40-50 year old poppy-tar and asked me if I could find a buyer... He said that the price was DEM 40,000... After a while I met with Mr M.G. [the fourth accused] and asked him whether he could find a buyer for the poppy-tar... A week or two later, Mr M.G. came to my house and told me that he could find a buyer and asked me for a sample... Mr M.G. said the price was too high... I met Jordan and asked him to take the poppy-tar as there was no one interested in buying it at that price. However, Jordan did not come because of the bad weather: it was snowing. On 27 January 2000 Mr M.G. came to my house and told me that he had found a buyer. On 28 January 2000 Mr M.G. came accompanied by Mr I.P. [the fifth accused] ... and said that a buyer from Skopje had offered DEM 2,500 per kg of poppy-tar...” 12. On 18 February 2000 the public prosecutor lodged an indictment (обвинителен акт) with the Kočani Court of First Instance against Mr M., the applicant, Mr D., Mr M.G. and Mr I.P. They were charged with having been in possession in the spring of 1999 of about 14 kg of opium and on 28 January 2000 of offering for sale and selling about 8.7 kg of opium. The charges were based, inter alia, on the statements of the accused in the pre-trial proceedings and the expert opinion no.X-121/2000 dated 28 January 2000. 13. At the trial on 9 March 2000, Mr D.S., the applicant's grandfather stated, inter alia: “... the poppy-tar was collected by my parents and my wife. I cannot say where it was stored. Maybe it was buried; there was a war. It was the period between 1941 and 1955; people said that it was of poor quality. I have never seen the poppy-tar nor do I know where it was stored. I never told Jordan or Mr M. where it was, nor did they ask me about it... I offered the poppy-tar for sale to the Bilka company, but it turned it down as it was of poor quality. This happened after the Second World War, but I cannot say when exactly...” 14. The applicant's representative lodged a request for an alternative expert opinion to be obtained from a scientific institution concerning the quality of the poppy-tar for the following reasons: the Bureau operated within the Ministry, which had lodged the criminal complaint against him; the poppy-tar was old and had been buried for many years; and an authorised organisation had refused to buy it as it was of poor quality. The counsel representing the other persons accused made a like request. 15. At the hearing on 10 March 2000 the court refused the request for another expert opinion. In his concluding remarks the applicant's representative reiterated, inter alia, his arguments about the poor quality of the poppy-tar and about the report drawn up by the Ministry. 16. The same day the Kočani Court of First Instance gave judgment. It found the applicant and the other accused guilty and sentenced them to terms of imprisonment of three to four years. The applicant obtained the longest sentence (four years' imprisonment). All other four defendants received sentences below the statutory minimum for crimes of that kind (5 years) on the ground that they had no previous convictions and some of them were young and/or had not played a crucial role in the crime. 17. The trial court found that the applicant and his uncle Mr M. had found 14.4 kg poppy-tar in the latter's cellar, i.e. opium belonging to Mr M.'s father, who had kept it from the Second World War. They had agreed to keep the opium at Mr M.'s house and to prepare it for sale. Later, the applicant had offered about 8.7 kg of the poppy-tar for sale to the third accused, Mr D., whose task was to find a further buyer. Then Mr D. and the fourth accused, Mr M.G., had checked the quality of the opium and given it to the fifth accused, Mr I. P., whose task had been to sell the drugs to Mr N.N., an unidentified final buyer from Skopje. As Mr I.P. feared detection, he had tried to escape and had thrown the bag with the opium out of his car. He was later arrested by the police and the bag containing the opium was found. 18. The court found that the accused had acted in concert, namely that the applicant had firstly found the opium and then offered it to Mr D., who had offered it to Mr M.G. The opium was finally offered for sale to Mr I.P., the fifth accused. The court made reference in its decision to the statements of the applicant and the other accused in the pre-trial proceedings concerning their roles in the crime. It also referred to the applicant's statement at the hearing, but disregarded it as self-serving. The testimony of several witnesses and items of real evidence were also taken into account, along with the expert opinions nos. X-121/2000 and X-122/2000 provided by the Bureau. 19. The court held that the poppy-tar, a term used by the accused, was in fact opium, the production of and trade in which was classified as a criminal offence. It based its findings entirely on the written expert opinion provided by the Bureau, stating inter alia : “... the court established that it was a psychotropic substance on the basis of the written evidence, namely the expert opinions nos. X-121/2000 and X-122/2000 submitted by the Bureau, in which it was definitely indicated that it was opium containing several alkaloids...” 20. It noted that the Bureau was a state body authorised to perform such expert examinations and that section 234(2) of the Criminal Proceedings Act did not prohibit it from providing such an expert opinion. It further stated: “...The court disregards the defence's argument that the opium was of poor quality i.e. what its quality and [opium] percentage was, because the expert report undoubtedly established that it was opium containing all the necessary substances to be considered a psychotropic substance...” 21. In his appeal, the applicant complained, inter alia, of the trial court's refusal to order an alternative, independent analysis of the quality of the poppy-tar. He claimed that it was not a type of opium prohibited by law, but poppy-tar that had been buried for a long time and that moisture was known to destroy its morphine content. In support of his arguments about the quality of the poppy-tar, he noted that after the Second World War its owner, Mr M.'s father, had been unable to sell it to an authorised buyer because it was of such poor quality. As it had not been properly stored its quality had deteriorated over time. He considered that a chemical analysis was necessary to determine the quality of the poppy-tar and proposed an institution which in his opinion had the equipment necessary to make the required analysis. He also complained that the expert examination of the opium had been performed by the Ministry which had then brought the criminal charges against him. 22. The applicant also argued that the offence had been set up by a police agent provocateur and would never have been committed without his intervention (he claimed that the unidentified final buyer N. N. was that agent). He further argued that he had been wrongly convicted as he had voluntarily called off the sale of the opium at one point, when he had changed his mind and asked the third accused to give him the poppy-tar back. He also appealed against sentence. 23. At a public hearing held on 14 June 2000 the Štip Court of Appeal dismissed the applicant's appeal and upheld the lower court's decision. It found that the lower court had not erred in refusing the applicant's request for an alternative expert examination of the quality of the drug, as the expert opinion provided by the Bureau was unambiguous. It also noted that it was known that the older the poppy-tar, the better it was for opium use. It further stated that the expert examination by the Bureau had been carried out properly and that the lower court had relied entirely on the Bureau's report and had therefore dismissed the applicant's request for an alternative examination by another institution. 24. The Court of Appeal also found that although the identity of the final buyer of the opium had not been established, it was irrelevant to the applicant's conviction: he had been convicted for having the opium in his possession and offering it for sale. It did not accept the applicant's assertion that he had decided not to proceed with the offence, finding that the lower court had correctly based its findings on the applicant's statements in the pre-trial proceedings in which he had described the whole event and had made a confession. It also found that the applicant had failed throughout the proceedings to put forward any evidence in support of his allegations. 25. In a request to the Supreme Court for extraordinary review of a final decision (барање за вонредно преиспитување на правосилна пресуда), the applicant referred to the complaints he had already raised in his appeal. 26. On 12 April 2001 the Supreme Court dismissed the applicant's request for extraordinary review and upheld the lower courts' decisions. It found that the lower courts had not erred in establishing the facts and evaluating the evidence concerning the applicant's assertion that he had decided not to proceed with the offence. 27. As to the applicant's complaint that his defence rights had been violated as the trial court had refused to order an alternative expert examination of the quality of the poppy-tar, the Supreme Court stated: “... such complaint is ill-founded because the trial court could reasonably establish on the basis of the expert opinion provided by the Ministry of the Interior that it was opium of good quality. There were no doubts in the expert opinion that would have warranted ordering a fresh examination or an opinion by other experts. The expert opinion submitted by the Ministry of the Interior does not contain any shortcomings or deficiencies which would raise reasonable doubts as to its validity...” 28. On 12 April and 2 November 2001 the Supreme Court dismissed the applicant's request for extraordinary mitigation of the penalty imposed (барање за вонредно ублажување на казната). 29. The Government have also indicated that on 29 May 2002 the Supreme Court rejected a second request by the applicant for extraordinary review of the final decision. 30. In accordance with section 234(1) and (2) of the Criminal Proceedings Act (“the Act”), an expert examination is requested by a written order of the body which carries out the procedure. The order specifies the facts for which the examination is required and the person appointed to perform it. If a special institution exists or if the examination can be carried out by a State body, the examination, especially in more complex cases, is as a rule entrusted to that institution or body. The institution or body appoints one or more experts to carry out the expert examination. 31. Section 243 of the Act provides that the opinion of other experts must be ordered if the expert opinion already given contains inconsistencies or deficiencies or if there are reasonable doubts as to its accuracy and these cannot be eliminated by referring to the experts who gave the opinion.
| 1
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train
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001-67984
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ENG
|
TUR
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CHAMBER
| 2,005
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CASE OF MENTEŞE AND OTHERS v. TURKEY
| 3
|
Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 2 with regard to deaths;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 8 with regard to deaths;No violation of Art. 5;No violation of Art. 3 and 9 and P1-1 with regard to alleged destruction of homes;Not necessary to examine Art. 6-1;Violation of Art. 13 with regard to deaths;No violation of Art. 13 with regard to alleged destruction of homes;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
| null |
10. The applicants, who were born in Lice, currently reside in Diyarbakır. 11. The facts of the case are in dispute between the parties. 12. On the night of 12 May 1994 and in the early hours of 13 May 1994, the applicants heard gun fire coming from outside their village of Yolçatı, located in the administrative jurisdiction of the Lice District within the province of Diyarbakır. The firing continued until approximately 5 a.m. Subsequently, soldiers entered the village and told all the villagers to gather at the village mosque. 13. The applicants alleged that the following took place: 14. On 12 May 1994 the applicant was at home with his family. During the night he heard gun fire coming from outside the village. In the early hours of 13 May his son, Kamil Menteşe, left to take the livestock out of the village. The soldiers stopped his son, checked his identity card and released him. 15. When the soldiers entered the village, they ordered all the villagers to gather near the village mosque. They asked them whether there were any PKK members in the area and whether they had been giving them food. The villagers replied that PKK activities were frequent in the area. Thereafter, the soldiers started to burn the houses in the village. At that time, the applicant’s son returned to the village and was taken away by the soldiers together with three other villagers. The applicant, together with the remaining villagers, was sent away from the village. After two days, they were allowed to go back to the village. When they came back, they saw that the village had been burned down. The next day, the applicant went to the Lice public prosecutor and to the military authorities to inquire into his son’s whereabouts. However, he received no reply. On 17 May 1994, five days after the incident, the corpses of twenty-six persons, including Kamil Menteşe, Sabri Akdoğan, Abdulvahap Maço and Yusuf Bozkuş, were found near the village. The corpse of the applicant’s son was found five hundred metres away from the others. The body was taken to the Lice Health Clinic and was subsequently buried in the Lice cemetery. 16. The applicant and her family lived in the hamlet of Beğendik in the Yolçatı village. On the night of 12 May 1994 the applicant was at home with her family. At about 11 p.m. they heard gun fire near their house. It continued until 5 a.m. In the morning of 13 May, the applicant’s brother in-law, Yusuf Bozkuş, led the animals towards the Yolçatı village. Yusuf was about 60 years old and he was of unsound mind. At the same time, the applicant and her children tried to leave the hamlet. However, they were not able to go very far as the area was surrounded by soldiers. From a distance, the applicant saw her house catch fire. On the evening of 13 May the applicant and her children stayed in the forest and saw smoke rising from the surrounding hamlets and villages. Early in the morning of 14 May, they headed towards Lice. 17. On 15 May 1994 the applicant heard from her neighbours that her brother-in-law, Yusuf Bozkus, had been arrested by the security forces near the Yolçatı village together with six other villagers. Upon receiving this information, the applicant attempted to search for Yusuf. However, as the roads were blocked with panzer tanks, she could not go back there. When she returned to Lice, her children told her that Yusuf’s body had been found and identified by Yusuf’s brother, Hasan Bozkuş. According to Hasan Bozkuş, Yusuf’s skull was completely shattered and there were five bullet holes in his chest. 18. The applicant went back to the village one month later and saw that her house had been burned down. 19. The applicant and her children were in the village on the evening of 12 May 1994. They heard gun fire throughout the night. On 13 May, at 6 a.m., soldiers arrived in the village and told the villagers to gather around the mosque. The applicant and her children accordingly went to the mosque. The commander then ordered the soldiers to start burning the houses. The applicant’s house was burned down along with others. Subsequently, all men who were under 60 years old were ordered to leave the village together with a soldier. The applicant saw Sabri Akdoğan, Abdulvahap Maço, Reşit Demirhan and Kamil Menteşe being taken away by a soldier. After some time, the applicant heard gun fire from the direction where the men had been taken, and she subsequently saw a couple of soldiers coming back to the village from that direction. 20. The applicant was in the village of Yolçatı on the night of 12 May 1994. In the early hours of 13 May at about 6 a.m., the village was surrounded by soldiers, who arrived in the village by vehicles, panzers and a helicopter. The villagers were ordered to gather around the mosque and they were interrogated about PKK activities. The soldiers then began burning down the houses. The village men who were under 60 years old were asked to leave the village with the soldiers. Upon this order, the applicant’s son Reşit Demirhan, who was 48 years old, together with Sabri Akdoğan and Abdulvahap Maço, were taken away by the soldiers. The applicant was sent to Lice with the remaining villagers. He tried to get information as to the whereabouts of his son. However, the soldiers did not allow him to look for him. After two days, the applicant returned to the village. The following day, some villagers went to the Lice public prosecutor to obtain information about the missing villagers. The body of the applicant’s son was subsequently found near the village together with the bodies of Sabri Akdoğan, Hasan Bayram, Mehmet İlkkaya, Yusuf Bozkuş, Fahri Bayram, Ramazan Bayram, Ekram Bayram, Abdulvahap Maço and Kamil Menteşe. Kamil’s body was found five hundred metres away from the other bodies. The applicant heard that there were twenty-six bodies at the scene of incident. The body of the applicant’s son was buried on 16 May 1994 in Diyarbakır. 21. The applicant lived in the village of Yolçatı. When the firing stopped at around 5 a.m. on 13 May 1994, the applicant fled from the village. While running away, she saw a helicopter land in the village. She saw smoke rising from the village. Two weeks later when she returned to the village, she saw that her house had been burned down. 22. The applicant and his family lived in a hamlet of the Yolçatı village. On the night of 12 May 1994 they heard gun fire. It continued until 5 a.m. When the firing stopped, the applicant and his family tried to go to Lice. While they were passing near the Yolçatı village, they were stopped by soldiers and the applicant’s son, Abdulvahap Maço, was taken away by the soldiers. The applicant was able to witness smoke rising from the nearby villages and hamlets in the area. The applicant and the rest of the family members continued towards Lice and stayed there with relatives for two days. On 15 May 1994 the applicant was informed by some villagers that his son Abdulvahap Maço had been found dead together with four other villagers, Reşit, Hasan, Yusuf and Sabri. The applicant subsequently went to the Lice public prosecutor and the leader of the Council and told them about the incident. However, they both responded that there was nothing they could do to help him. When the applicant received permission to collect his son’s body, he went back to the village. He saw that the village had been burned. He subsequently found the corpse of his son behind some rocks. There were several bullet marks on the body. The applicant took his son’s body to the Lice Health Clinic and subsequently buried him in Lice. 23. The Government denied the allegations submitted by the applicants. They informed the Court that an armed clash had taken place on 13 and 14 May 1994 in the vicinity of the Dibek village, also attached to the Lice District. According to the Government, four soldiers had been killed during this incident. 24. In support of their submissions, the Government provided the full case file concerning the investigations into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço. 25. On 15 May 1994 the corpses of Reşit Demirhan, Sabri Akdoğan and Hasan Bayram were found in the vicinity of the Yolçatı village. These corpses were brought to the Lice Health Clinic by the villagers. After the bodies were officially identified, post-mortem examinations were carried out on the bodies by a doctor together with the Lice public prosecutor. The doctor perceived that rigor mortis had set in and bruising had appeared on the body of Reşit Demirhan. He noted the presence of a bullet entry hole under the right eye and a bullet exit hole measuring 5 x 6 cm. in the occipital area, which had cracked the skull and caused heavy damage to the brain; a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra, measuring 5 x 3 cm, which had caused damage to the spine; a bullet entry hole on the lower right side of the abdomen and a bullet exit hole, measuring 2 x 2 cm. on the right side of the thigh; a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm; a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand; and scars possibly caused by gunshot wounds on some parts of the body. No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body. 26. On 16 May 1994 the villagers found the body of Abdulvahap Maço near the village of Yolçatı. The body was brought to the Lice Health Clinic. Together with the Lice public prosecutor, the doctor conducted a post mortem examination. In the report, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring 6 x 10 cm., as a result of which the skull had been shattered and the brain heavily damaged; two adjacent bullet entry holes on the left side of the neck; two adjacent bullet exit holes on the right side of the neck, under the chin; a bullet entry hole on the left leg and a bullet exit hole in the calf measuring 2 x 8 cm; two wounds, one on the back of the right ankle measuring 4 x 2 cm. and another on the front part of the ankle measuring 3 x 4 cm, possibly caused by bullets; a fractured tibia; and a bullet entry hole on the right calf and a bullet exit hole above the right knee, causing a wound measuring 10 cm., which had damaged tissue and fractured the lower part of the femur. No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body of Abdulvahap Maço. 27. On 17 May 1994 the bodies of Yusuf Bozkuş and Kamil Menteşe were also found by the villagers near the mountains in the vicinity of the Yolçatı village, and were brought to the Lice Health Clinic. The body of Kamil Menteşe was identified by his father Abdullah Menteşe and the body of Yusuf Bozkuş was identified by his brother. The doctor conducted post-mortem examinations in the presence of the Lice Public Prosecutor. In the report on the body of Yusuf Bozkuş, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole in the chin, and a bullet exit hole, measuring 10 x 15 cm. which had caused heavy damage to the brain; and three bullet entry holes in the left collar bone area, the right collar bone area and the right side of the neck, and three bullet exit holes, two in the shoulder blade area and one under the left underarm. No other signs were observed on the body. In the report on the body of Kamil Menteşe, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade; a bullet entry hole in between the shoulder blades, and a bullet exit hole in the front part of the right underarm, measuring 2 x 3 cm; a lateral wound measuring 10 cm. in the femur area which had been caused by a sharp object; a wound which had been caused by a sharp object, measuring 8 x 3 cm on the right biceps; two further wounds on the right arm, caused by a sharp object; a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee, measuring 4 x 5 cm; scars due to gun shots on the left leg; and the right ear of the deceased was missing for unknown reasons given the one week delay in the autopsy. As the doctor had found that both Yusuf Bozkuş and Kamil Menteşe had died from gunshot wounds, he did not deem it necessary to perform a classical autopsy on the bodies. 28. The Government maintained that investigations were initiated to find the perpetrators of these killings. In this respect, they referred to the correspondence between the Lice public prosecutor and the Lice Gendarmerie Command. Copies of several letters, written by the prosecutor to the gendarme commander, asking the commander to conduct an investigation into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço were submitted to Court. The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators. 29. On 28 December 1998 the Lice public prosecutor took statements from two villagers, Mehmet Baltan and Ahmet Baltan, in connection with the killings of Kamil Menteşe and Yusuf Bozkus. In his statement, Mehmet Baltan explained that he did not know Yusuf Bozkuş or Kamil Menteşe but he had heard that someone from the Yolçatı village had been abducted and killed in May 1994. When interrogated about the killing of Yusuf Bozkuş and Kamil Menteşe, the second witness, Ahmet Baltan, explained that he had known Kamil and Yusuf. He also knew that these two villagers were found dead. However he had no knowledge as to who might have killed them. 30. On 31 January 2000 the Lice public prosecutor concluded that it had not been possible to establish the identities of the perpetrators of the killings of Kamil Menteşe, Yusuf Bozkus, Reşit Demirhan and Abdulvahap Maço. He accordingly decided to issue a continuous search warrant for the perpetrators of the killings, which would remain valid for twenty years, the statutory time limit under Article 102 of the Criminal Code. The prosecutor also instructed the authorities to continue pursuing a meticulous search for the perpetrators. 31. Subsequently on 16 September 2001, 23 March 2002, 4 September 2002, 10 September 2002, 20 December 2002 and 4 March 2003, gendarme officers attached to the Lice Gendarme Command went to the Yolçatı village for onsite inspections. In their respective reports, they stated that there was no new evidence concerning the incidents, and that the identities of the perpetrators could not have been established. 32. In respect of relevant domestic legislation, the Court refers to Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 46-52) and Menteş and Others v. Turkey (judgment of 28 November 1997, Reports 1997VIII, §§ 36-50).
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train
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001-61122
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ENG
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NOR
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CHAMBER
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CASE OF WALSTON (No. 1) v. NORWAY
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Violation of Art. 6-1 on account of non-communication of lawyer's observations;No violation of Art. 6-1 with regard to the non-communication of the whole case-file;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
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Nicolas Bratza
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8. The applicants were born in 1948 and 1945 respectively. They are a married couple. They live in Stryn, Norway. 9. The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows. 10. In 1986 the applicants bought at the price of NOK 1 a property at Stryn in Western Norway. On the land was a large wooden house built in 1886, which had previously served as a hotel and school. In the mid-1980s the municipal authorities wished to destroy the building, which by then had been unoccupied for two decades. The applicants' initial plan was to renovate the building and then to sell it, but later they used the building as a hotel in the summer and rented it out to schoolchildren during the winter. 11. The renovation costs were initially estimated at NOK 3.5 million, of which approximately NOK 2.8 million was to be financed by mortgages. At the time it was difficult to obtain loans, but in the end the applicants were able to borrow from the Sandane Branch of the Bergen Bank, NOK 2.3 million, secured on the applicants' property in Stryn (gnr 45, bnr 108), and NOK 0.5 million, secured on their property (gnr 113, bnr 91 and 92) in Vågsøy. The Bergen Bank subsequently merged with Den norske Creditbank and became Den norske Bank (DNB) (hereinafter referred to as “the Bank”). Eventually the renovation, which was completed in 1988, became more extensive and expensive than expected, in part because of difficulties related to the installation of a fire prevention system. At an unspecified time in 1989 or 1990, the applicants stopped paying the mortgages and the interest on them, resulting in an overdraft of NOK 4 million. In addition, they apparently owed NOK 1.6 million to the State Fund for Development of Districts (Distriktenes Utbyggingsfond – hereinafter “the DUF”). 12. As the Bank considered that the applicants had failed to honour their obligations, it sought to have the applicants' property in Stryn and Vågsøy sold at an auction in order to recover its loans. In 1991 the Bank instituted proceedings for this purpose. On 31 March 1992 the proceedings concerning the property in Stryn were discontinued. In the meantime, on 8 January 1992 the Bank had obtained a decision by the Nordfjord Court of Execution and Enforcement (namsrett), the local district court, confirming an auction bid but that decision was later quashed by Gulating High Court (lagmannsrett) on 17 November 1993. 13. On 5 June 1992 the Bank again brought proceedings to have the Stryn property sold at auction, and on 16 June 1992 the Nordfjord Court of Execution and Enforcement granted the request. 14. In a complaint filed with the District Court on 19 May 1992 the applicants requested inter alia that Mr Justice Steintveit should stand down on account of his past employment with the Bergen Bank. 15. On 25 May 1992 Mr Justice Steintveit confirmed that he had been, for a period from July 1984 to January 1987, an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. He had not deemed it necessary to inform the parties about this as he did not consider that it had any importance for his eligibility to sit in the case. 16. On 3 June 1992 the applicants submitted a complaint to the Nordfjord Court of Execution and Enforcement, asking Mr Justice Steintveit to stand down under Sections 108 and 109 of the Administration of Courts Act 1915 (Domstolloven) on the grounds that he had had close ties with the defendant Bank. On 12 June 1992 the complaint was returned to the applicants with an explanation that, at the time, no execution proceedings were pending before the court. On 2 September 1992 Mr Justice Steintveit informed the applicants that he could not see that his past employment relationship with the Bank was a reason for him to withdraw from the case. 17. On 3 November 1992 the Court of Execution and Enforcement granted a request by the applicants to have the auction proceedings suspended, pending a first instance decision in the proceedings mentioned under Section B below. 18. In April 1992 the applicants brought an action against the Bank, claiming compensation for breach of contract. According to the applicants, the Bank had undertaken to discharge their mortgage debts secured on the properties at Vågsøy which would have enabled them to earn money from their property during the years 1990 to 1992. The Bank brought a counter-action. At the opening of the oral hearing in January 1994, Mr Justice Steintveit asked the parties whether there were any objections to the District Court's composition. No objection was made. On 22 April 1994 the Nordfjord District Court (herredsrett), composed of Mr Justice Steintveit and two lay judges, unanimously found for the Bank, declaring that its mortgage securities were valid. The District Court noted that the Bank had agreed on 3 December 1990 to cancel the NOK 2.6 million mortgage security with respect to the property in Stryn. It further observed that on 28 November 1989 the DUF had requested the cancellation of the NOK 500,000 security with respect to the properties at Vågsøy but had withdrawn its request on 23 May 1991. In connection with the said request, the District Court referred to a letter of 22 April 1991 from the Bank manager to the DUF. The letter read: “The question of to what extent the Bank has an obligation to remove the lien [on the Vågsøy property] has been considered at several levels within the Bank, including our legal department. We have also obtained a statement from an external Supreme Court Advocate who has been engaged by [the applicants]. No one has found any reason why the Bank should be required to follow the demands of the DUF.” In its judgment the District Court criticised the Bank for having expressed itself in the way it did, affirming that there was insufficient basis in the contacts between the Bank and the applicants' lawyer at the time to draw such a conclusion. Despite this, the District Court found on the evidence before it that the mortgage securities remained valid. Before the European Court the applicants have submitted that the letter of 22 April 1991 was kept secret from them “for over one year until 12 May 1992” (see at p. 9 of the 'Summary' attached to their observations of 19 October 2000), and also that they “did not discover the proof until they subpoenaed and received the documents during May 1997” (observations of 31 May 2002). On appeal by the applicants, the judgment of the District Court was unanimously upheld by the High Court on 4 October 1995. On 7 May 1996 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicants leave to appeal. It does not appear that the applicants challenged the proceedings before the District Court on account of Mr Justice Steintveit's participation. 19. On 25 January 1995 the Court of Execution and Enforcement decided to resume the auction proceedings relating to the applicants' property in Stryn which, as mentioned under Section A above, had been suspended on 3 November 1992. This decision was upheld by the High Court on 16 May 1995 and, on 7 July 1995, the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal. 20. On 15 November 1995 the property in Stryn was sold at an auction. The applicants made the highest bid, between NOK 1.6 and 1.7 million, but since they were not able to offer security in time, the property went to the next highest bidder, the Bank, for approximately NOK 1.5 million, which was later confirmed on 8 March 1996 as stated below. The auction was followed by two sets of proceedings, one concerning Mr Justice Steintveit's refusal to withdraw, the other concerning the Bank's auction bid. 21. On 20 December 1995, in connection with proceedings relating to the confirmation of the Bank's auction bid, Mr Justice Steintveit of the Nordfjord Court of Execution and Enforcement decided to reject a further request made by the applicants that he withdraw from the proceedings. In his decision the judge stated that, from July 1984 to December 1986, he had been an employee of the Bergen Bank assigned to the Bank's legal department in Oslo. During this period he had not been involved with the applicants' loan agreement and both the agreement and the persons concerned had been unknown to him. Nor had he had any dealings with the former director of the local branch in Nordfjordeid who had pursued the case against the applicants. After ceasing to work with the Bank, the judge had maintained an ordinary customer relationship with it but had, beyond that, entertained no special links. On entering office as a judge in January 1987 he had, as a matter of caution, imposed on himself a rule not to deal with cases to which the Bank was a party for the next three years. The applicants' case was brought before the Court of Execution and Enforcement after the expiry of the three-year period. It had never been his opinion that his previous employment relationship with the Bank was a circumstance capable of calling into doubt his impartiality. Until the applicants' complaint of 12 December 1995, he had thought that they were of the same view. He saw no grounds for arriving at a different conclusion as regards his ability to sit. 22. The applicants appealed against this decision to the High Court, which upheld it on 29 March 1996. 23. The applicants subsequently sought to appeal against the High Court's decision but, on 3 June 1996, the Supreme Court's Appeals Selection Committee quashed the decision and gave a new decision to the effect that the appeal from the first instance court was to be dismissed by the High Court. It observed that, following the 8 March 1996 decision mentioned below, the procedure and the merits of that decision ought to have been challenged in the same appeal. 24. On 8 March 1996, the Nordfjord Court of Execution and Enforcement, sitting with a single assistant judge, confirmed the sale to the Bank of the property in Stryn. 25. The applicants appealed to the High Court, which, after holding a hearing on 11 August 1997, upheld the decision by a judgment dated 2 September 1997. The High Court further rejected the applicants' contention that the first instance judge had been disqualified. 26. On 20 March 1998 the Supreme Court's Appeals Selection Committee refused the applicants leave to appeal. 27. In November 1995 the Bank made a fresh application to the Court of Execution and Enforcement for the compulsory sale of the applicants' property in Vågsøy. The applicants objected and again challenged the first instance judge's eligibility to adjudicate their case and requested him to withdraw. By decision of 25 June 1996, the judge rejected their request and granted the Bank's application. The judgment included the following reasons: “The plaintiff has sent notice that a claim for enforcement will be made if the claim is not complied with. The said notice is in accordance with the requirements laid down in section 4-18 of the Enforcement Act (tvangsfullbyrdelsesloven). The application has been lawfully served on the defendants. As explained above, the defendants have had objections to the application for forced sale. The court finds it appropriate to deal firstly with the objection concerning ability to sit. The said objection is linked to the circumstance that the undersigned judge has been employed by [the Bank]. The employment relationship that has been invoked concerns the fact that the undersigned was employed as a lawyer in the Legal Department of [the Bank], Oslo, for a period from July 1984 to December 1986. During this period I had nothing to do with the loan commitment to Møyfrid and Michael Walston. I had no knowledge of either the matter or the persons until the case was submitted to me in my capacity as judge. Nor did I, as an employee of the Oslo office, have anything to do with the persons in the Bank who processed the loan commitment to Walston. Since my resignation I have maintained my relationship as a client of [the Bank], ...but have otherwise had no special connection with the Bank or its employees. Several disputes between the parties deriving from the loan commitment have been brought before the courts. The underlying dispute was heard by the undersigned judge on 22 April 1994, and a final and enforceable decision for the Bank was taken by the High Court in its judgment of 4 October 1995. The Walstons omitted to call the undersigned's impartiality into question during the district court's hearing of the main case, even though they had been explicitly informed of the employment relationship as early as during the preparatory proceedings in 1992. However, their objection was put forward in a written plea dated 12 December 1995 by their counsel, Mr Fjeld, during the hearing of other enforcement proceedings between the same parties, cf. case no. 95-00301 C. On that occasion, the objection was not upheld by the district court, and after a further interlocutory appeal, the Appeals Selection Committee of the Supreme Court decided on 3 June 1996 that the question of disqualification could not be the subject of an interlocutory appeal because it could serve as a ground of appeal in the event of an appeal proper against the affirmation order. Since, on the previous occasion, the defendants raised the point that the undersigned withdrew from other cases involving [the Bank], I wish to mention briefly that on entering office as a judge in January 1987 I chose to impose a precautionary rule upon myself. This consisted in my refraining, for a period of three years, from hearing cases in which [the Bank] was a party. I chose to take the date on which the case came to court as the starting point for the three-year period, and the application of this rule led to my finding it appropriate to withdraw from a few cases. The case between Møyfrid and Michael Walston and the Bank came to court after the expiry of the self-imposed three-year limit. On the basis of the above, I the undersigned would conclude that my former employment relationship with [the Bank] cannot be regarded as a special circumstance which might serve to weaken confidence in my impartiality. Until their counsel's, Mr Fjeld's, written plea of 12 December 1995 in case no. 95-00301C, it was my understanding that Møyfrid and Michael Walston also took the same view. Accordingly, the request that the undersigned judge disqualify himself from the case is rejected. As regards the objection concerning the ground for enforcement, the court refers to the judgment of 22 April 1994 of the Nordfjord District Court. Point 2 of the conclusion of the judgment on the counter-claim reads as follows: '2. The mortgage bond from Møyfrid and Michael Walston, in the amount of NOK 500,000, judicially registered on 10 July 1986 and secured on the property gnr. 113, bnr. 91 and 92 in Vågsøy, is binding on Møyfrid and Michael Walston and may be used as a ground for enforcing recovery of the debt they owe to Den norske Bank AS.' The judgment is now a final and enforceable decision since the High Court has upheld it and the Appeals Selection Committee of the Supreme Court has refused leave to appeal on 7 May 1996 .... Accordingly, the court finds that the objections raised by Møyfrid and Michael Walston concerning the ground for enforcement have been the subject of a final and enforceable decision and that the ground for enforcement may thus serve as the basis of the application for forced sale. As regards the objections indicated by the defendants regarding the ground for enforcement independently of the outcome in the Supreme Court, the said objections have not been specified and consequently the court has no cause to deal with them. The court finds that the conditions for forced sale are fulfilled and grants the application. ... C o n c l u s i o n: 1. The request that District Judge Gunnar Steintveit disqualify himself ... is rejected. 2. The application for forced sale of [the property] ... in the Vågsøy municipality is granted. 3. Enforced payment is to be effected by a forced sale with the help of an assistant, cf. section 11-12 of the Enforcement Act. 4. The decision regarding forced sale is to be judicially registered in respect of the property ... in the Vågsøy municipality.” 28. On 21 July 1996 the applicants appealed against this decision to the High Court, stating inter alia: “The appeal is firstly limited to point 1 of the conclusion- the issue of the disqualification of the judge of the Court of Execution and Enforcement (District Court judge). However, were the appellants to succeed on this point, this will necessarily result in the last three items in the conclusion also being quashed, since the case will thus have been dealt with by a disqualified judge. The appeal is grounded on a misapplication of law. Since it is a holiday period and the office is almost completely closed, and because the undersigned counsel will be absent from the office in July for work-related reasons, the appeal submitted within the time-limit of 24 July will have to be brief. A supplementary written plea will be prepared, and I take the liberty of requesting that the time-limit for submitting such a plea be set for the end of the court vacation, 15 August 1996.” 29. In the proceedings the High Court received from the applicants' lawyer extensive observations dated 23 August and 5 September 1996, and from the Bank's lawyer observations dated 10 September 1996. The latter led the applicants' lawyer to submit further comments on 23 September 1996, developing further arguments on the issue of disqualification, including on the District Court judge's awareness of the applicants' objection to his participation. It further contained the following observations: “The legal system does not differentiate between more and less 'serious' cases. Neither on the basis of the amount or the type of case can one say that a judge who is on the 'borderline' as regards qualification should be 'passable' in certain minor cases, but not in major ones. In this litigation, too, there are various serious questions that may be brought up for consideration. And in any circumstance it is the judge of the Court of Execution and Enforcement who ultimately determines whether a given offer is to be confirmed or not. As regards the property in Vågsøy, it remains to be resolved whether the mortgage bond concerned is of a subsidiary nature, i.e. whether it is 'only' security for any uncovered debts from the hotel operations in Stryn. In that event, it is necessary to ascertain how much [the Bank] will recover in Stryn – in one way or another – before ascertaining whether there is any residual amount to be covered by selling the property in Måløy. And before that stage is reached, various preliminary assessments and decisions may have to be made in which the judge's qualification is not a question of secondary importance. In the second paragraph on page 1 of the reply [of 10 September 1996], it is stated that 'the appellants have a debt to [the Bank] of over NOK 6,000,000' – in other words, over six million kroner!! I admit that I am new to this litigation and may not have a full overview of absolutely every detail. But amounts of this nature almost knock me flat since they in no way whatsoever resemble the amounts that I have so far been able to note in this litigation. That is why the adversary party is now being pressed upon to give an account of and to substantiate the manner in which it has computed this claim. Then there is the question whether the adversary party contends that this entire amount has been secured by the mortgage bond, or merely parts of it. The significance of this question is enormous. When, at some point in the future, the Gulating High Court in all likelihood sets aside the confirmation of the give-away price for the hotel in Stryn (pursuant to the previous Enforcement Act), it will be relevant to realise assets in a business-like manner in order to settle accounts with [the Bank]. Whether or not a general settlement is possible will naturally depend on such questions as a. what is the debt to the [Bank] in Stryn that is secured by a mortgage bond? b. what is the amount of the total claim against the Walston family ? c. can a forced sale be effected at all in the Vågsøy municipality until a further financial settlement has been reached in Stryn ?; cf. evidence: 1. Letter of 14 July 1986 from [the Bank] to the Walstons, affirming that the bond in the present case is merely in the nature of 'formal collateral'; regardless of how many subsequent judgments have been pronounced to the effect that the Walstons are not entitled to have the said bond discharged under the prevailing circumstances. In considering these questions – and several others that may arise during the further hearing of the case – it is naturally not of secondary importance who the judge is.” 30. On 9 October 1996 the Bank's lawyer filed additional observations, which were not communicated to either the applicants or their lawyer, until they were notified of the High Court's decision of 3 December 1996 mentioned below. The 9 October 1996 document read: “I refer to the written plea of 23 September 1996 from the appellants. The plea gives rise to a need for some clarification, but most of the content has been commented on previously. On page 2 the appellants contend that the major grounds given for the decisions in this and another case contain direct errors that have allegedly been revealed. It is not correct, however, that Mr Justice Steintveit has given any inaccurate information in this case. The District Court Judge has been aware of the objections that have been raised since 1992, but he was not aware that specific objections relating to disqualification had been raised in those cases where it is so contended. Here I refer to page 4, penultimate paragraph, of the plea, from which it appears that their counsel, Mr Howlid, did not raise during the main hearing any objections relating to disqualification, despite the fact that the Walstons allegedly instructed him to do so. It is completely incomprehensible to me that the Walstons now claim that their counsel, Mr Howlid, acted contrary to his instructions in the District Court when they themselves were present when it happened and did not protest in any way. As regards consideration of the disqualification issue in the High Court, I abide by what I have said previously about the matter. The High Court was not requested, either in the written plea or in court, to deal with the disqualification issue, as it was contended both by Lise Kvinsland, counsel, in the written plea and by Møyfrid Walston that, since there would be a completely new trial in the High Court, it was not necessary to get a ruling on the merits of this issue. Thus there was no adjudication of any claim that the District Court had made a procedural error due to disqualification and that the District Court's judgment should therefore be quashed and the case referred back to it for fresh examination. It is however correct that Møyfrid Walston stated that she was still of the view that the judge was disqualified. As regards the question whether or not the mortgage bond is of a secondary nature, I refer to the security agreement according to which all the mortgaged properties are to secure any and all indebtedness between the parties. The amount of the debt was dealt with in the main case. In this context it is not necessary to document whether or not it exceeds NOK 6 million (the figure was the result of an oversight) as it is sufficient to point out that after depreciation and the grant from the Regional Development Fund, the outstanding debt was NOK 2.3 million, and that after depreciation no interest or instalment payments have been made with the exception of an insignificant instalment. Given that the bid established for the property in Stryn is for NOK 1 550 000, it goes without saying that the question whether the bond is of a secondary nature or not is of no importance. Evidence: 1. Ruling by the Nordfjord Court of Execution and Enforcement of 8 March 1996 in case no. 95-00301 C. The correct amount of the debt is: Principal and interest as per 1 October 1996 NOK 4,627,781.80 Costs awarded, etc., with interest NOK 322,796.45 Expenses NOK 11,630.00 Sum NOK 4,962,208.25 I apologise for any inconvenience that my oversight may have caused. The property in Stryn has been sold for an amount that is considerably less than the principal. Thus it is obvious that the question whether or not the mortgage bond is secondary is of no importance in this case. However, the fact is, as noted above in the security agreement, that all the properties are to secure any and all indebtedness between the parties, so it is permissible to realise any or all of the mortgaged property, cf. section 1-12, first paragraph, of the Mortgages and Pledges Act (panteloven). If it is probable that the amount realised by selling the properties would exceed the amount necessary to cover the mortgagee's claim, a specific calculation must be made and a proper sequence for such realisation must be drawn up, as provided in section 11-19 of the Enforcement Act. Section 84 of the former Enforcement Act made some provision for a similar procedure. At any rate it is only in cases where there is a danger of excessive coverage that it is necessary to draw up any sequence in connection with realisation. There is no such danger in the present case. Written plea in 4 – four – copies.” 31. On 25 October 1996 the applicants' lawyer ceased to represent them. By a letter of 5 November 1996, referring to the Vågsøy case, the applicants informed the High Court of this fact and requested it to provide them with “a copy of all documents in the interlocutory appeal case directly to [them]”. In another letter of the same date they requested “all the documents concerning” the Stryn case. In a letter of 22 November 1996 to the High Court, they renewed their request for the production of documents in both cases, invoking the approaching time-limit for making supplementary submissions in the Stryn case. They added that their former lawyer had refused to provide them with the documents. 32. On 3 December 1996 the High Court upheld the District Court's decision of 25 June 1996. It had particular regard to the fact that, while employed by the Bank, Mr Justice Steintveit had not been involved with the loan agreement concerned, and that a considerable time had elapsed between the date of his leaving the Bank (1986) and the date when the Bank requested the compulsory sale of the applicants' property (1995). Moreover, the Bank was a large company with branches all over the country, whose employees – one might expect – would have a less personal relationship to their employer than would normally be the case with smaller companies. While Mr Steintveit was assigned to the Oslo branch, the loan agreement had been arranged at the local branch in Sandane. Furthermore, the applicants had not disputed his ability to sit in 1994 when he dealt with the dispute regarding the underlying circumstances. 33. On 4 December 1996, the day after its above-mentioned decision, the High Court transmitted to the applicants a copy of the case-file. On 5 December they complained to the High Court about the procedural error, stating the following: “We refer to the letter dated 4 December 1996 in which we were finally sent the documents in the interlocutory appeal case. This in fact occurred one day after the ruling on the interlocutory appeal was given. This is a serious procedural error on the part of the Gulating High Court for which we hold the judges responsible. The reason why we asked to be sent the documents in the case was because Mr. Trygve Fjeld is no longer our lawyer. We did not have an overview of the documents that had been submitted to the court and, in order not to suffer legal prejudice, it was imperative for us to obtain the documents from the court. See letters of 5 November 1996 and 25 November 1996. As I now look through the documents that we received today, I see that several things are missing and we are seeing a written plea by Mr. Eriksen dated 9 October 1996 for the first time.” 34. Subsequent to further exchanges, on 10 December 1996 the High Court sent to the applicants copies of their lawyer's writ of appeal and supporting arguments dated 23 August 1996. As regards the Bank's lawyer's submissions of 9 October 1996, the High Court explained that, since the submissions did not contain any information of importance to the case, they had not been communicated until notification of the High Court's decision. As their lawyer at that time had ceased to represent them, it had not been sent to him. 35. On 22 December 1996 the applicants appealed to the Supreme Court's Appeals Selection Committee, requesting that the High Court's decision be quashed and that the case be referred back to it for a fresh examination. On this occasion the applicants requested to be given until 6 January 1997 to supplement their appeal, which they did on that date, setting out their arguments, notably on alleged procedural errors on account of Mr Justice Steintveit's participation and the High Court's omission to communicate case-documents, and attaching an analysis of procedural errors allegedly committed by the Nordfjord Court of Execution and Enforcement. 36. The applicants complained that, in the proceedings before the High Court, the latter had given a decision on 3 December 1996 without having communicated the case-documents to them, as requested on 5 November 1996 and again on 22 November 1996. The applicants were then not aware of the observations of 9 October 1996 submitted by the Bank's lawyer, on which they had comments of importance for the outcome of the case. The observations had contained an admission to the effect that the District Court judge had since 1992 been aware of the applicants' objections to his dealing with their case. Moreover, whilst the Bank's observations of 10 September 1996 had stated that the applicants' debts had exceeded NOK 6 million, those of 9 October had indicated that they amounted to barely NOK 5 million. 37. On 4 February 1997 the applicants submitted additional observations commenting on a writ filed by the Bank on 29 January 1997 and expressing their wish that the issue of the judge's ability to sit be given careful examination. Moreover, they informed the Supreme Court that because of the shortage of time they had not been able to finalise the attachments to their analysis of 6 January 1997, and that these would be sent by ordinary mail on 5 February 1997. 38. On 6 February 1997 the Supreme Court's Appeals Selection Committee rejected the applicants' appeal. 39. As regards the applicants' complaint about the High Court's omission to communicate the observations of 9 October 1996, the Committee reiterated that the Bank had in a previous case a legally enforceable judgment according to which the mortgage securities invoked were binding on the applicants and could be used as a ground for compulsory sale of the properties for recovery of debts that they had vis-à-vis the Bank. Moreover, the appeal before the High Court had been limited to the question of the first instance judge's impartiality. Thus, the Committee found, the observations of 9 October 1996 contained no information of any importance for the decision to be taken by the High Court. It concluded that the High Court's omission to communicate the observations did not constitute an error of procedure for the purposes of Article 401, second paragraph of the Code of Civil Procedure (tvistemålsloven). Nevertheless, the Committee added, a party's pleadings should as a rule be communicated to the other party or the latter's representative. 40. As regards the High Court's omission to respond to the applicants' request for a copy of all the appeal documents, the Committee recalled that, under Article 135 of the Code of Civil Procedure, the parties may request copies of those documents which concern the case. It observed that in the circumstances at hand, where the case had long since been ready for adjudication by the High Court, the latter was not wrong in deciding the case before transmitting a copy of the bulky case-file to the applicants. In any event, this could not constitute an error of procedure which affected the High Court's decision. 41. According to the applicants, subsequent to the above decision, the Supreme Court returned to them their observations of 4 February 1997, with the enclosures, stating that a decision had already been taken in the case. 42. Article 135 of the Code of Civil Procedure reads: “The parties are entitled to examine at the office of the court, court minutes and documents relating to the suit, and may demand copies of them.” 43. Article 401, second paragraph, provides: “In the event that new factual information, which is not obviously without significance, has been invoked, the court shall inform the adversary party thereof. Should it find reason to do so, the court may submit the matter for comment to the court which has taken the decision under challenge.”
| 1
|
train
|
001-112143
|
ENG
|
HRV
|
ADMISSIBILITY
| 2,012
|
VOJNOVIC v. CROATIA
| 3
|
Inadmissible
|
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
|
1. The applicants, Mr Dušan Vojnović and Ms Dragica Vojnović, are Croatian nationals who were born in 1935 and 1946 respectively and live in Belgrade. 3. The applicants are of Serbian origin. They had a specially protected tenancy on a flat in Zagreb in which the first applicant lived until 1991 and the second applicant until 1992, when they left Croatia and went to live in Serbia. 4. On 10 April 1995 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), on behalf of the Republic of Croatia, brought a civil action against the applicants in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking termination of their tenancy on the grounds that the applicants had been absent from the flat for a period exceeding six months without any justified reason, and that their address was unknown. 5. After an attempt to serve a summons on the applicants failed, the Zagreb Municipal Court appointed lawyer Z.B. to represent them before the court. 6. On 15 November 1995 the Zagreb Municipal Court terminated the applicants’ specially protected tenancy by a judgment which became final on 19 January 1996. 7. On 7 December 1998 the applicants lodged a request for the reopening of the proceedings with the Zagreb Municipal Court. On 13 November 2000 the Municipal Court granted the request and set aside its judgment of 15 November 1995. 8. On 12 April 2002 that court again terminated the applicants’ specially protected tenancy, finding that the applicants had failed to provide a convincing explanation for leaving the flat at issue and for remaining passive for three years before trying to seek information about the status of their tenancy. The applicants lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu), which upheld the first-instance judgment on 25 November 2003. 9. On 23 July 2004 the applicants lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) about the termination of their specially protected tenancy and claiming that they had been discriminated against. On 7 February 2007 the Constitutional Court dismissed their constitutional complaint as ill-founded. The decision of the Constitutional Court was served on the applicants on 27 November 2007. 10. On 19 November 2004 the applicants lodged a request for housing with the Ministry for Regional Development, Forestry and Water Management (Ministarstvo regionalnog razvoja, šumarstva i vodnog gospodarstva) and were granted a flat in Zagreb measuring 49.89 square metres. 11. The applicants complained about the size of the flat. On 30 October 2009 they were granted another flat in Sesvete, near Zagreb, measuring 74.78 square metres, but they again refused to accept it. 12. In the meantime, on 25 June 2007 the applicants lodged a civil action in the Zagreb Municipal Court against the Republic of Croatia, seeking damages and asking that their right to occupy and to acquire ownership of the flat on which they had had the specially protected tenancy be established. 13. On 25 November 2009 the applicants complained before the Constitutional Court about the length of the proceedings. On 28 December 2009 the Constitutional Court instructed the applicants that the complaints about the length of the proceedings fell within the competence of the lower courts and the Supreme Court (Vrhovni sud Republike Hrvatske). 14. On 19 March 2010 the applicants complained to the Zagreb County Court about the length of the proceedings before the Zagreb Municipal Court. On 13 May 2010 the Zagreb County Court declared their complaint inadmissible on the ground that they had failed to appoint a representative to receive mail on their behalf in Croatia, as required under the relevant domestic rules of procedure, since they lived abroad. 15. The civil proceedings before the Zagreb Municipal Court are still pending. 16. On 19 January 2004 the applicants lodged an application with the Court complaining about the termination of their specially protected tenancy and the fairness of the proceedings before the Zagreb Municipal Court. They relied on Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. They also relied on Article 6 § 1 of the Convention. 17. On 18 November 2005 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible with the provisions of the Convention ratione temporis. 18. On 8 January 2008 the applicants again lodged an application with the Court, complaining under Article 8 of the Convention about the termination of their tenancy. They also complained under Article 1 of Protocol No. 1 that by terminating their tenancy the domestic authorities had prevented them from purchasing the flat at issue on favourable terms. The applicants further complained under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1, that their tenancy had been terminated because of their Serbian origin. Lastly, the applicants complained under Articles 6 and 13 of the Convention about the outcome of the civil proceedings in respect of the termination of their specially protected tenancy before the Zagreb Municipal Court. 19. On 29 May 2009 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible ratione materiae in the part concerning the applicant’s property complaint, and substantively the same in the part concerning their other complaints. 20. On 23 January 2006 the first applicant, acting on his own behalf and on behalf of the second applicant and their son Milan Vojnović, submitted a communication to the Human Rights Committee in Geneva under the First Optional Protocol to the International Covenant on Civil and Political Rights. He complained that the termination of the specially protected tenancy had, inter alia, violated their rights under Articles 14 (the right to equality before the courts and to a fair hearing), 17 (the right to a home), and 26 (prohibition of discrimination) of the Covenant. He also invoked Article 2 of the Covenant (respect for human rights and effective domestic remedy). 21. On 30 March 2009 the Human Rights Committee in Geneva set out its views in communication no. 1510/2006. It found that the termination of the applicants’ specially protected tenancy amounted to a violation of Article 14 § 1 taken in conjunction with Article 2 § 1, and Article 17 taken in conjunction with Article 2 § 1 of the Covenant, and that there was no need to consider the question of a separate violation of Article 26 of the Covenant.
| 0
|
train
|
001-84308
|
ENG
|
BGR
|
CHAMBER
| 2,008
|
CASE OF KARAMITROV AND OTHERS v. BULGARIA
| 3
|
Violation of Art. 6;Violation of Art. 13+6;Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 13+P1-1
|
Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
|
7. On the night of 14 October 1991 a car was stolen from an unsecured car park. Early in 1992 a preliminary investigation in respect of the theft was opened against an unknown perpetrator. 8. On 28 May 1992 the first applicant was stopped by the police while driving the car of his parents – the second and third applicants. The police established a discrepancy between the numbers on the chassis of the vehicle and those in the registration documents of the vehicle which had been issued by the Pazardzhik Traffic Police on 17 July 1973. They seized and impounded the car in order to check its registration documents and ownership. The first applicant was questioned regarding the discrepancy in the car’s registration documents both on the above date and on 4 June 1992. 9. The investigating authorities commissioned a technical examination of the seized vehicle. In a report of 14 April 1993 the technical expert concluded that the number plate on the chassis of the car was not the original, but had been changed. 10. On 8 June 1993 the first applicant was charged with being an accessory to the theft of the car on 14 October 1991. He was questioned on the same day and then released. A restriction was imposed on the first applicant, not to leave his place of residence without the consent of the Prosecution Office. 11. No further investigative procedures were conducted in the course of the preliminary investigation. 12. On 3 April 1995 the first applicant complained to the Pazardzhik District Prosecution Office about the length of the criminal proceedings. He did not receive a response. 13. Subsequently, the first applicant lodged similar complaints with the Pazardzhik District Prosecution Office, the Pazardzhik Regional Prosecution Office, the Plovdiv Appellate Prosecution Office and the Chief Prosecutor about the length of the criminal proceedings. He did not receive a response to any of them. 14. Sometime in 1998 the investigator in charge of the preliminary investigation died, while the assistant investigator retired. The first applicant’s case was never reassigned to another investigator. 15. Sometime in September 1999 the first applicant lodged another complaint about the length of the criminal proceedings with the Supreme Cassation Prosecution Office. In response, the Plovdiv Appellate Prosecution Office was instructed to investigate the first applicant’s complaint. 16. In a decision of 20 October 1999 of the Pazardzhik District Prosecution Office the preliminary investigation was discontinued in respect of the first applicant as unproven. The restriction on the first applicant not to leave his place of residence without the consent of the Prosecution Office was removed. 17. The criminal proceedings continued, against an unknown perpetrator, until 27 September 2004 when the Pazardzhik District Prosecution Office terminated them due to the expiry of the statute of limitations for the offence. In its decision, the Prosecution Office expressly noted that no investigative procedures had been conducted in the proceedings after 8 June 1993, the date on which the first applicant was arrested and charged. 18. The car was seized and impounded by the police on 28 May 1992 in order to check its registration documents and ownership. No protocol of seizure was prepared and the second and third applicants were not given a receipt or any other document evidencing the impounding of the vehicle. 19. The car remained impounded by the police for the duration of the preliminary investigation against the first applicant as physical evidence of the offence. 20. On 9 November 1994 the person from whom the car had allegedly been stolen on 14 October 1991 requested possession of the vehicle. 21. The question of returning the vehicle to the second and third applicants was raised by the first applicant in his complaints regarding the length of the criminal proceedings lodged with the Pazardzhik District Prosecution Office on 3 April 1995, the Supreme Cassation Prosecution Office on 19 October 1999 and the Chief Prosecutor in September 1999. No action was taken in response to any of them. 22. In its decision of 20 October 1999 to terminate the criminal proceedings against the first applicant the Pazardzhik District Prosecution Office noted that no protocol or other document existed to show “who, when, why and how” the vehicle of the second and third applicants had been seized and impounded. Nevertheless, the Prosecution Office ordered that the car be handed over to the person from whom it had allegedly been stolen on 14 October 1991 because it considered that, inter alia, on the basis of the investigative procedures performed during the preliminary investigation she was the owner of the vehicle. The applicants appealed against the decision in respect of the order to hand over the car to another person. 23. On an unspecified date the police handed over the car of the second and third applicants to the person from whom it had allegedly been stolen. 24. In a decision of 10 November 1999 the Pazardzhik Regional Prosecution Office upheld the decision of the Pazardzhik District Prosecution Office on grounds similar to those contained in the latter’s decision. The applicants appealed further. 25. On 18 November 1999 the Plovdiv Appellate Prosecution Office quashed the above decisions of the lower-level Prosecution Offices. It found, inter alia, that it was not within their competencies to determine the ownership of the vehicle and, in view of the termination of the preliminary investigation against the first applicant, the car had to be returned to the persons from whom it had been seized. It further found that the seizure of the vehicle and the resulting impounding had been unlawful because at the time the seizure had been made no protocol to that effect had been executed. The person to whom the car had been handed over appealed against the decision. 26. In a decision of 10 March 2000 the Supreme Cassation Prosecution Office upheld the decision of the Plovdiv Appellate Prosecution Office on grounds similar to those contained in the latter’s decision. 27. The car was returned to the second and third applicants on 19 May 2000. As a result of the period of impounding it had been damaged – its paintwork had deteriorated and the radiator was cracked. Parts of the car were also missing, such as two spark plugs and cables, the left headlight, the spare tyre, the indicators, the cover of the right back brake light, the door handles and other things. They estimated the damage to be worth around 100 Bulgarian levs (approximately 51 euros). The first applicant, who signed the protocol of transfer, made a reservation that he would make a further assessment of the damage caused to the vehicle and that a subsequent claim might be filed against the District Prosecution Office in that respect. 28. The second and third applicants did not initiate any action to seek compensation for the alleged damage caused to the vehicle. 29. Paragraphs 1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974) provided as follows: “(1) Physical evidence must be carefully examined, described in detail in the respective record, and photographed, if possible. (2) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence. ... (4) Physical evidence which, because of its size or other reasons, cannot be attached to the case file, must be sealed, if possible, and deposited for safekeeping at the places indicated by the respective authority.” 30. Paragraphs 1 and 2 of Article 108 of the Code, as in force at the relevant time and until 1 January 2000, provided as follows: “(1) Physical evidence shall be held until the termination of the criminal proceedings. (2) Chattels which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case.” 31. Article 108 paragraph 2 of the Code was amended on 1 January 2000 to clarify that it was within the powers of the Prosecution Office to rule on requests for the return of chattels held as physical evidence. In addition, a right of appeal to a court was introduced against refusals by the Prosecution Office to return such chattels (Article 108 paragraph 4 of the Code of Criminal Procedure as in force after 1 January 2000). 32. If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence, the authorities were obliged to keep those items safe until the relevant judgment became final (Article 110). 33. The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name. 34. Section 1 (1) of the State and Municipalities’ Responsibility for Damage Act of 1988 (the “SMRDA”: title changed in 2006) provided, as in force at the relevant time, as follows: “The State shall be liable for damage caused to [private persons] from unlawful acts, actions or inactions of its apparatus and officials [in the exercise] of administrative duties.” 35. Section 2 of the SMRDA provides as follows: “The State shall be liable for damage caused to [private] persons by the [apparatus] of ... the investigation authorities, the prosecution authorities, the court ... for an unlawful: 1. detention ... ; 2. charge for an offence, if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [in question] or the act is not an offence ... ; 3. sentence ... ; 4. ... forced medical treatment ... ; 5. ... imposition of administrative sanctions ... ; 6. enforcement of an imposed sentence in excess of the determined period ... ” 36. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act of omission (section 4). The person aggrieved has to lodge an “action ... against the [entity] ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7). Compensation for damage arising from instances falling under section 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 § 1). 37. The practice of the Bulgarian courts in the application of the Act has been very restrictive. 38. In particular, the domestic courts have ruled that liability for damage stemming from instances within the scope of section 1 of the Act are to be examined only under the Act and not under the general rules of tort (решение № 55 от 14.III.1994 г. по гр.д. № 599/93 г., ВС, IV г.о.). 39. Similarly, liability of the investigation and the prosecution authorities may arise only in respect of the exhaustively listed instances under section 2 (1) and (2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section 2 of the Act. 40. Liability under section 2 of the Act may arise only for unlawful actions, but not for unlawful inactions by the investigation authorities, the prosecution authorities and the courts (решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.). 41. Up to 2005 there existed conflicting domestic case law as to whether liability of the State arose under section 2 (2) of the Act in instances, such as in the present case, when criminal proceedings were discontinued as “unproven” (решение от 04.02.2003 г. по въззивно гр. д. № 1538/2002 г. на ПАС and решение № 1085 от 26.07.2001 г. по гр. д. № 2263/2000 г., IV г.о.). The issue was clarified by the General Assembly of the Civil Chambers of the Supreme Court of Cassation in Interpretative decision no. 3/2004 of 22 April 2005 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС) which found that section 2 (2) of the Act was applicable in such instances. 42. The Government presented two hundred and one judgments under the SMRDA where the domestic courts had found the State liable to pay damages to claimants. Of these cases (a) thirty-seven judgments were based on section 2 (2) of the Act and related to being unlawfully charged with an offence; (b) forty-seven were based on section 1 of the Act relating to unlawful acts by the administration; (c) a further one hundred and one were also based on section 1 of the Act but stemmed from unlawful actions or inactions by the administration; and (d) sixteen cases related to more specific complaints falling under Article 3 and 5 of the Convention. 43. In their submissions, the Government stressed the existence of a judgment delivered by the Pazardzhik District Court on 14 December 2005. In that case the domestic court had ordered the Pazardzhik District Police Authority to pay compensation for the pecuniary damage suffered by a claimant as a result of the former’s inactivity in keeping safe a vehicle seized as physical evidence in a case. A related claim in respect of non-pecuniary damage had been dismissed and the Prosecution Office had also been ordered to pay the claimant compensation for the non-pecuniary damage suffered as a result of being unlawfully charged with an offence. 44. In their submissions in reply, the applicants informed the Court of the subsequent development of the above-mentioned case. The judgment relied on by the Government had been appealed against both by the Pazardzhik District Police Authority and the Prosecution Office. The Pazardzhik Regional Court examined the appeal and delivered a final judgment on 10 June 2006. It quashed the first-instance court’s judgment in respect of the liability of the Pazardzhik District Police Authority for the damage to the claimant’s vehicle as it found that the police’s actions, or inactions, as they related to the safekeeping of a vehicle as physical evidence, did not fall within the definition of “administrative duties” under section 1 nor under any of the instances under section 2 of the Act. Thus, the police could not be held liable for their actions or inactions in similar such instances. Separately, the Pazardzhik Regional Court upheld the first-instance court’s judgment against the Prosecution Office. 45. The Obligations and Contracts Act provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. Under section 110 the claim for damage is extinguished with the expiry of a five year prescription period.
| 1
|
train
|
001-23149
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,003
|
I.M. v. THE NETHERLANDS
| 4
|
Inadmissible
| null |
The applicant, I.M., has both Netherlands and Cape Verdean nationality. She was born in 1964 and is living in Rotterdam, the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 November 1986 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Netherlands national, Mr N.A.S. On the basis of that marriage she obtained a residence permit. The applicant’s daughter, S., who had been born into the relationship between the applicant and one Mr A.M.N. in the Cape Verde Islands on 4 March 1985, stayed behind in the care of her maternal grandparents. On 26 April 1989 a son, E., was born to the applicant and one Mr M.A. It had been the applicant’s intention to send for her daughter in 1989, which seemed to her an appropriate moment as she expected to have found a job and to have completed a professional training course by that time. However, her marriage breaking down in September 1989 thwarted these plans. As she was no longer residing with her husband, she applied for an independent residence permit which was granted in October 1989. The marriage was officially dissolved in 1990. The applicant acquired Netherlands nationality on 14 October 1991. She experienced difficulties obtaining proper accommodation, but this problem was solved in 1992. In the same year the applicant’s father fell seriously ill in the Cape Verde Islands due to which, the applicant submitted, the grandparents were no longer capable of taking care of S. In October 1992 the applicant addressed a letter to the Netherlands Ministry of Justice, stating that she wished for her daughter to grow up within her family, consisting of herself and her son E., in the Netherlands and that she would be able to take care of her daughter’s upbringing. She appended a declaration made by S.’s father in which he consented to his daughter going to the Netherlands to live with the applicant. The case-file does not contain a reply to this letter. On 20 April 1993 the applicant filed an official request for a provisional residence visa (machtiging tot voorlopig verblijf) for her daughter with the Visa Division of the Ministry of Foreign Affairs. This request was rejected on 9 June 1993 on the grounds that a stay of longer than three months was intended and that the application did not meet the relevant conditions laid down in Netherlands regulations. The applicant’s objection (bezwaar) against this refusal was rejected on 9 November 1993. Her subsequent appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was rejected on 21 June 1996 by the latter as unsubstantiated since the close family ties (gezinsband) between the applicant and her daughter were considered to have ceased to exist. On 2 November 1994 the applicant filed a new request for a provisional residence visa for S. This was rejected on 16 December 1994. The applicant did not apply any legal remedies against this decision On 12 June 1995 the applicant applied for a third time for a provisional residence visa, which was rejected on 6 November 1995. Again, the applicant did not have recourse to any legal remedies against this decision. On 4 July 1995 S. entered the Netherlands on a short stay visa (visum voor kort verblijf), granted for the purpose of visiting relatives. On 4 September 1995 the applicant filed a request for a residence permit (vergunning tot verblijf) for S. On 11 September 1996 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this request, by concluding that the applicant relied on the same facts as those submitted in respect of her earlier requests for a provisional residence visa and that the reasons to reject those requests remained pertinent. The decision underlined that the applicant’s daughter had entered the country on a short stay visa whereas the aim and the intended duration of her stay were not in compliance with the purposes of such a visa. The Deputy Minister held that this breached a rule of general interest. Referring to the need for a restrictive immigration policy, the decision further stated that, unless international law obliged the Netherlands to grant admission, aliens could be allowed residence only if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of compelling reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of S. On 21 October 1996 the applicant filed an objection (bezwaar) through counsel with the Deputy Minister of Justice, underlining that her child could not have a normal existence in the Cape Verde Islands and that there were solid reasons why the applicant had been unable to bring her child to the Netherlands before 1992. On 21 January 1997 the Deputy Minister rejected the applicant’s objection concluding that there were no grounds to justify a reversal of the initial decision since no new facts or other circumstances had been adduced and the grounds for rejection had been correct. On behalf of S. the applicant lodged an appeal against the decision of the Deputy Minister with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (arrondissementsrechtbank te ‘s-Gravenhage nevenzittingsplaats Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She requested an interim measure (voorlopige voorziening) to the effect that her daughter would not be expelled while the appeal was pending and invoked Article 8 of the Convention in support of her claim. eerste toelating) to the Netherlands, rather than a refusal to prolong an existing right of residence. The Regional Court rejected the request for a provisional measure. The Regional Court’s decision was final and not subject to appeal. As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa. Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is evaluated on the basis of the same criteria as a residence permit. In general, the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for residence in the Netherlands (Article 11 of the 1994 Aliens Act (Vreemdelingenwet 1994)). The Minister of Justice can refuse entry and residence on general interest grounds (gronden aan het algemeen belang ontleend). In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined at the time in the 1994 Aliens Circular (Vreemdelingencirculaire 1994) – is aimed at restricting the number of aliens admitted to the Netherlands. In general, an application for a residence permit in the Netherlands is granted only if the individual’s presence serves an essential national interest or if there are compelling humanitarian grounds to do so (Chapter A4/5.3 of the 1994 Aliens Circular). The policy for admission for family reunion purposes was laid down in Chapter B1 of the 1994 Aliens Circular. It provided that the following persons, where relevant, may qualify for family reunion if certain conditions (relating to matters such as public policy and means of subsistence) are met: – a person’s spouse, – a minor child born into the marriage who actually belongs to the family unit (gezin), and – a minor child born outside the marriage who actually belongs to the family unit (e.g. a child of one of the spouses from a previous marriage or a foster child). The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law overlaps only partly with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent’s involvement in the child’s care and upbringing, custody arrangements, the amount and frequency of the parent’s financial contributions to the child’s care and upbringing, the parent’s intention to send for the child from the Netherlands as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent. Living together in the Netherlands without a permanent residence permit is not seen as restoring severed family ties.
| 0
|
train
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001-60684
|
ENG
|
ESP
|
CHAMBER
| 2,002
|
CASE OF CAÑETE DE GOÑI v. SPAIN
| 1
|
No violation of Art. 6-1
|
Matti Pellonpää
|
8. The applicant was born in 1950 and lives at Jerez de la Frontera (in the province of Cadiz). She teaches history and geography at secondary-school level. From 1 July 1989 to 30 June 1994 she was the head teacher of a secondary school in Jerez de la Frontera where she taught. 9. The Autonomous Community of Andalusia gave notice through an advertisement in the Official Gazette of 31 December 1991 of an internal competition to fill 2,014 senior teaching posts at secondary-school level. On 16 February 1993 the Department of Education and Science of the Autonomous Community of Andalusia (“the Department”) published a provisional list of the candidates whose applications to take part in the competition had been accepted. The final list comprised 4,901 candidates, including the applicant, and was published on 27 March 1993. 10. On 9 December 1993 the Department published the candidates’ assessments and the number of marks awarded to each under the chosen selection criteria, in order to allow any complaints to be lodged. 11. By an order of 7 February 1994, it published a final list of the candidates, including the applicant, who had passed the examination. 12. In January 1994 more than 300 candidates issued proceedings in the Administrative Division of the Andalusia Higher Court of Justice complaining about the manner in which the competition had been organised and, in particular, of the use of, and weighting given to, teacher-training diplomas in the assessment process, which they maintained was discriminatory. Notice of each individual application was published in the Official Gazette of the province of Seville. The national and regional press carried reports that a large number of legal actions had been brought complaining about the organisation and results of the competition and that senior officials in the Andalusian government or members of their families had passed the examination as a result of the significant weighting given to one of the assessment criteria. The dispute was referred to the Ombudsman (defensor del pueblo) for Andalusia, who strongly criticised the weighting system and advised the Andalusian government to annul the competition. The teachers unions took a stand on the matter, which was also debated in the Andalusian parliament. 13. By a decision of the Department dated 15 March 1994 the applicant was appointed to the grade of senior history and geography secondary-school teacher. 14. In the judicial review proceedings that had been brought by a large number of candidates, the Andalusia Higher Court of Justice ordered the Department to furnish a list of the candidates in the competition, to produce the administrative file and to serve notice on interested third parties to attend the hearing. The Department lodged written pleadings, but without identifying the interested third parties who ought to be summoned. At the end of the proceedings, in a judgment of 31 March 1995, the Higher Court of Justice annulled the competition for history and geography teachers and directed the examiners to re-mark the examination papers without applying the disputed weighting. 15. In other judicial review proceedings that had been brought in the Andalusia Higher Court of Justice on the same grounds, interested third parties, who had not been personally served with summonses to appear, made an application under Article 24 of the Constitution for leave to intervene after learning about the proceedings from other sources. The Higher Court of Justice agreed to their participation in the proceedings. 16. On the reassessment of the candidates under the procedure laid down by the Higher Court of Justice, the applicant did not attain the requisite level and failed the examination. The Department issued an order on 31 August 1995, which was published on 9 September 1995 in the Official Gazette of the Autonomous Community of Andalusia, annulling her appointment to the senior teaching post. 17. The applicant lodged an amparo appeal with the Constitutional Court under Article 24 of the Constitution (right to a fair hearing) against the Higher Court of Justice’s judgment of 31 March 1995 and the Department’s order of 31 August 1995. She said in her appeal that she had learnt of the notice in the 9 September 1995 issue of the Official Gazette of the Autonomous Community of Andalusia by accident and complained in substance that the process whereby her appointment to the senior teaching post had been annulled was unfair, as she had not been summoned to appear before the Andalusia Higher Court of Justice as an interested party to the dispute. In that connection, she argued, inter alia, that the Higher Court of Justice had been under a duty under section 64 of the Administrative Courts Act to inform her of the court proceedings and to summon her to appear. She also sought a stay of execution of the Andalusia Higher Court of Justice’s judgment. 18. In a decision of 5 February 1996 the Constitutional Court declared her amparo appeal admissible. 19. On 26 February 1996 the Constitutional Court granted the applicant a stay of execution; it discharged that order on 27 May 1996. 20. State Counsel lodged written pleadings with the Constitutional Court on 30 May 1996 concerning the amparo appeal. He argued that the appeal should be allowed in part, as there had been a violation of Article 24 of the Constitution for the following reasons: “... In order to examine this appeal, it is necessary to recapitulate the criteria and conditions laid down in the case-law of the Constitutional Court establishing that a failure to serve a summons personally will violate the right to the effective protection of the courts. In that connection, the notion of ‘legitimate interest’ has a special meaning for the purposes of Article 24 § 1 (of the Constitution), as it determines who has a legitimate right to take part in court proceedings, that is to say standing as an interested party to bring an appeal. The Constitutional Court has frequently stated that the notion of ‘legitimate interest ... is defined as an advantage or any legal benefit arising out of the remedy sought’ (judgment no. 60/1982). In the present case, it will be seen that the appellant had a legitimate interest in the application before the Andalusia Higher Court of Justice, as she was liable to be affected by the judgment, which resulted in a new list of selected candidates being drawn up and, consequently, the loss of her newly obtained status as a senior secondary-school teacher. From that standpoint, therefore, it was vital for the summons to be served on her personally and directly in the proceedings. 3. Secondly, ... since the appellant was identifiable, it is necessary to determine whether she could have been served personally. In that connection, it will be observed from the pleadings lodged with the Higher Court of Justice in support of the application for judicial review that it was not only the ‘scale’ that was contested, but also the provisional list of candidates permitted to take part in the competition, which means that the persons concerned were readily identifiable. 4. Consequently, it was not only necessary, but also feasible, for the appellant to be summoned personally and directly. The last requirement is that the person concerned should have no knowledge of the proceedings. In the present case, there is no evidence to suggest that the appellant knew or could have found out about the proceedings, as the judgment was not even served on her. Accordingly, the rule established in the Constitutional Court’s judgment no. 117/1983 should be applied, namely: ‘this Court will only dismiss the appeal if there is evidence establishing that the appellant was aware of the proceedings ...’ 5. In the light of the foregoing, in the present case, the appellant should have been summoned to appear in the judicial review proceedings in the Andalusia Higher Court of Justice. The fact that she was not so summoned put her in a position that was prejudicial to her defence rights, in breach of the fundamental right guaranteed by Article 24 § 1 of the Spanish Constitution.” 21. In a decision of 8 March 1999, the Constitutional Court ordered the joinder of various amparo appeals against the Andalusia Higher Court of Justice’s judgment in which the appellants all relied on the same points of law. 22. In a judgment delivered on 14 September 1999 after an adversarial hearing, the Constitutional Court dismissed the amparo appeal. 23. With respect to the complaint that the annulment of the applicant’s appointment to the senior teaching post was tainted with procedural unfairness, owing to the failure to summon her to appear before the Andalusia Higher Court of Justice as an interested party to the dispute, the Constitutional Court held: “... 4. ... While it is true that the appellants allege, firstly, a violation of section 64 of the Administrative Courts Act on the ground that the Seville Administrative Proceedings Division effected service by advertisement and not personally, such a violation would only have a legal bearing on a constitutional amparo appeal if the breach of the Act also constituted a violation of the fundamental right relied on (see judgments nos. 15/1995 and 197/1997, legal reason no. 4). This Court addressed the issue of failure to summon third parties with an interest in judicial review proceedings in detail in its judgment no. 9/1981. The rules established in that case have been systematically recited, inter alia, in decisions delivered during the current decade, in judgments nos. 97/1991 (legal reason no. 2); 78/1993 (legal reason no. 2); 325/1993 (legal reason no. 3); 192/1997 (legal reason no. 2); 229/1997 (legal reason no. 2); 122/1998 (legal reason no. 3); and 26/1999 (legal reason no. 3). As a general rule, the following three conditions must be satisfied for amparo relief to be granted: (a) The appellant must have a personal legitimate right or interest capable of being affected by the judicial review proceedings concerned ... (b) It must be possible for the court or tribunal concerned to identify the appellant. Whether that requirement is satisfied will depend essentially on the information set out in the notice of application, the administrative file or the grounds of appeal ... (c) Lastly, the appellant must have been a victim of a material infringement of his or her defence rights [indefensión material]. There will be no material infringement of defence rights if the person concerned has constructive notice of the proceedings and has not appeared through want of diligence. A finding that the person concerned had constructive notice of the proceedings must be based on reliable evidence [fehaciente] (judgments nos. 117/1983 (legal reason no. 3); 74/1984 (legal reason no. 2); 97/1991 (legal reason no. 4); 264/1994 (legal reason no. 5); and 229/1997 (legal reason no. 3)). That does not prevent proof being established on the basis of presumptions (judgments nos. 151/1988 (legal reason no. 4); 197/1997 (legal reason no. 6); 26/1999 (legal reason no. 5); and 72/1999 (legal reason no. 3). The presumption that the person concerned had notice will be particularly strong in cases concerning civil servants employed by an authority that is a defendant in the proceedings (judgments nos. 45/1985 (legal reason no. 3); and 197/1997 (legal reason no. 6)). 5. The application of the aforementioned constitutional parameters to the present case gives the following results: (a) Firstly, the appellants indisputably had a legitimate interest ... (b) Secondly, ... in the present case, the Administrative Division had precise details of the co-defendants or other parties, as the application for judicial review referred to the provisional list of the selected and unselected candidates ... and even the final list of candidates ... (c) However, thirdly, as to whether there has been a material infringement of the rights of the defence, this Court held in its judgment no. 113/1998 (legal reason no. 4) that it was reasonable to presume that teachers had constructive notice of judicial review proceedings when, as in the present case, they had been appointed to their senior teaching posts following a competition that had been challenged in the administrative courts, had attracted extensive media coverage and had had an important impact in trade-union circles ... We reach the same conclusion in the present case. A number of articles on the proceedings challenging the scale used in the competition (and the list of candidates selected to take part) have appeared in large circulation newspapers in Andalusia (the case has received extensive coverage in Diario 16 (Andalusia), ABC (Seville edition), Jaén, El País, Huelva Información and Diario de Córdoba)). The underlying issues were also examined by the Andalusian parliament at a briefing session (held on 24 November 1994). In June 1994 the Department of Education and Science sent a memorandum to the teachers via the ‘Sector Education Office’ expressly informing them of the proceedings pending in the Andalusia Higher Court of Justice. To these considerations must be added the subjective characteristics common to all the applicants: they are all civil servants employed by the defendant authority; as teachers, they are in a category of the population that has frequent access to the media, particularly the press. Lastly, the number of people affected by the appeals is very high (4,091 teachers entered the competition and 2,014 were selected in a very specific functional environment (teaching)). In the light of the foregoing, we reach the clear conclusion that the appellants had constructive notice of the judicial review proceedings that were heard by the Administrative Division in Seville. Consequently, their failure to take part in those proceedings was not attributable to any lack of diligence by that Division. Accordingly, there has been no violation of the right to the protection of the courts (Article 24 § 1 of the Spanish Constitution).” “1. Everyone shall have the right to the effective protection of the judges and courts in the exercise of his rights and legitimate interests and shall never be left defenceless. 2. Likewise, everyone shall have the right of access to a judge of ordinary jurisdiction, as predetermined by law, to defend himself and to be assisted by a lawyer, to be informed of the charges against him, to have a public trial without undue delay and attended by all safeguards, to use the evidence relevant to his defence, not to incriminate himself, not to admit guilt and to be presumed innocent. ...” “Everyone appearing to have an interest in the dispute shall be immediately informed of any decision by the authority that issued the relevant instrument or provision to forward the administrative file to the court and summoned within nine days to attend the hearing ...” 24. In a series of judgments published in the Official Gazette of the State, the Constitutional Court has established the legal principles applicable to cases in which interested third parties have not been personally served with summonses requiring their appearance in judicial review proceedings to which they were not parties (see section 64 of the Administrative Courts Act). A detailed summary of the rules is to be found in the Constitutional Court’s judgment of 14 September 1999 in the present case (see paragraph 23 above). It is the settled case-law of the Constitutional Court that anyone with constructive notice of and a legitimate personal interest in judicial review proceedings who has not been personally served with a summons to take part in those proceedings may apply to the court for leave to do so by virtue of Article 24 § 1 of the Constitution. A number of interested parties were given leave to intervene in some of the applications for judicial review heard by the Andalusia Higher Court of Justice challenging the assessment criteria used by the authority (see paragraph 15 above).
| 0
|
train
|
001-58274
|
ENG
|
TUR
|
GRANDCHAMBER
| 1,999
|
CASE OF KARATAS v. TURKEY
| 1
|
Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
|
John Freeland;Luzius Wildhaber;Paul Mahoney
|
8. Mr Hüseyin Karataş is a Turk of Kurdish origin and was born in 1963. He lives in Istanbul and works as a psychologist. 9. In November 1991 he published an anthology of poems in Istanbul entitled “The song of a rebellion – Dersim” (“Dersim – Bir İsyanın Türküsü”). 10. On 8 January 1992, the public prosecutor at the Istanbul National Security Court no. 1 (“the public prosecutor”, “the National Security Court”) accused the applicant and his publisher of disseminating propaganda against the “indivisible unity of the State”. He requested, inter alia, application of section 8 of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 18 below) and the confiscation of the copies of the work concerned (see paragraph 16 below). He relied on the following passages from that anthology in support of his request. “… [Freedom is the law of the clan] … a great passion is taking shape in our holy hands – the light of ancient Kurdistan for as long as by the light of day the Munzursuyu[] is not reddened by our blood we shall not let the whelps of the Ottoman whore trample upon it after all for thousands of years we have obeyed the law freedom is the law of the clan. [In solitude, they looked at the tombstones] The heart of Dersim is torn to pieces its serpentine streets explosions of dynamite the noise of excavators the soldiers’ boots … a phial of medicine in one hand of poison in the other the towers of Babel in others the Turks are coming with their schools their language in which we know only too well the word for cruelty … in the corridors of Parliament in the galleries in the garrisons they are preparing genocide like those who know no bounds … On the head of Hızır[], my brave one we have never seen nor heard anything like this I ask you, brother, what Scripture would accept such cruelty? … [Silently, they looked towards the village of Deşt] … and now cruelty is spreading apace our blood will mix with the blood shed. resistance and betrayal freedom and surrender side by side … have we not accepted as law for thousands of years that blood shall be washed in blood? … [In their solitude their tears fell to the ground] … thousands of years of disasters have not altered our lives for our Kurdistan for our Dersim we will sacrifice our heads, drunk on the fire of rebellion … [In solitude, they oiled the guns and rifles] … let us go children of the unyielding we have heard there is a rebellion in the mountains can we hear and do nothing? let the festivities and celebrations begin let flames as high as the rooftops reach for the sky so that before the day’s end the cannons fall silent venerable Kurdistan beautiful Kurdistan Kurdistan our friend … [They marched towards the laws to be brothers] … for thousands of years, companion, we have been the close acquaintance of the most barbaric cruelties I ask you out of love for the age in which you live how much longer will we put up with this cruelty? … to the majestic mountains that will lead us to freedom … [Snowy are the mountains] … the whelps of the Ottoman whore repeatedly pound our mountains the waters that run our springtime … they are preparing genocide like those who know no bounds. … for thousands of years, our clan has been under siege in our besieged land … [The mountains before us have voices of snow] … an unbounded anger in my heart a speechless hatred … the laws do not give way rebellion comes from the mountains the millennia of history some have died for her some march to their deaths. [They marched towards solitude] … those who were but a handful of brave men the hope and resistance of their blessed bodies they have, piece by piece, adorned freedom those who, before us, marched to their deaths … Young Kurds ‘I am seventy-five years old I die a martyr I join the martyrs of Kurdistan Dersim has been defeated but Kurdism and Kurdistan shall live on the young Kurd shall take vengeance’ when life leaves this body my heart shall not cry out What happiness to live this day to join the martyrs of Kurdistan. … [Alişer is dead too] … we have lived for centuries without a State, in exile, during massacres for centuries along the paths we have hauled behind us a sword but never have we been conquered by the sword … the venerable Sheikh Alişer of Hasanan[] was brave enough to know how to die for his honour, his homeland and his freedom … how can I narrate to those who will come after us all that is brave and heroic impregnating my whole body with courage. … I invite you to freedom, to death in these mountains, in this sacred spring with death we march, freedom is blessed with death, I invite you to die; – time is wounded like the beat of a heart. … [Exile] … Garrisons garrison schools kids women … valiant youths songs of revenge mothers of children hand-to-hand side by side surrender and resistance and the dignity and the honour and the pride of the Kurd become by the vows of the Mazlum Doğans[] of the Ali Haydar Yıldızes of the Hayri Durmuşes of the Delil Doğans little by little drop by drop a secret rebellion.” 11. The applicant denied the charges before the National Security Court, asserting, in particular, that the passage in inverted commas (see paragraph 10 above) was a quotation which in no way reflected his own opinions. 12. On 22 February 1993 the National Security Court, composed of three judges, including a military judge, found the applicant guilty of the offences charged and sentenced him under section 8(1) of Law no. 3713 to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL), to be paid in ten monthly instalments. It also ordered confiscation of the publications concerned. The National Security Court entirely accepted the submissions of the public prosecutor and found, inter alia, that the poems in issue referred to a particular region of Turkey as “Kurdistan” and had glorified the insurrectionary movements in that region by identifying them with the Kurds’ fight for national independence. In the National Security Court’s view, the expression of praise apparent throughout the work amounted to separatist propaganda that was detrimental to the unity of the Turkish nation and the territorial integrity of the Turkish State and justified Mr Karataş’s conviction. 13. In a judgment of 1 July 1993, the Court of Cassation dismissed an appeal by the applicant. The applicant’s subsequent application to the same court for rectification of the judgment was also unsuccessful. 14. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. Inter alia, it reduced the length of prison sentences that could be imposed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 18 below). In a transitional provision relating to section 2, Law no. 4126 provided that sentences imposed pursuant to section 8 of Law no. 3713 would be automatically reviewed (see paragraph 19 below). 15. Consequently, the National Security Court reviewed the applicant’s case on the merits. In a judgment of 19 April 1996, it reduced Mr Karataş’s prison sentence to one year, one month and ten days but increased the fine to TRL 111,111,110. On an appeal by the applicant, the Court of Cassation upheld that decision on 1 December 1997. Mr Karataş was at that time still serving his sentence in Ümraniye Prison (Istanbul). 16. The relevant provisions of the Criminal Code read as follows: “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …” 17. Section 3 of the Press Act (Law no. 5680) provides: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” 18. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) has been amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995 (see paragraph 19 below). Sections 8 and 13 read as follows: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.” “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. ... Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras … …” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” 19. The Law of 27 October 1995 contains a “transitional provision relating to section 2” that applies to the amendments which that law makes to the sentencing provisions (see paragraph 18 above) of section 8 of Law no. 3713. That transitional provision provides: “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment to … section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.” 20. The relevant parts of section 5 of the Execution of Sentences Act (Law no. 647) read as follows: “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. ... If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. ... The sentence of imprisonment thus substituted for the fine may not exceed three years …” 21. The relevant provisions of the Code of Criminal Procedure concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows: “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness.” “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; ...” 22. The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 18 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty, namely: 1991/23 – 75 – 132 – 177 – 100; 1992/33 – 62 – 73 – 89 – 143; 1993/29 – 30 – 38 – 39 – 82 – 94 – 114; 1994/3 – 6 – 12 – 14 – 68 – 108 – 131 – 141 – 155 – 171 – 172; 1995/1 – 25 – 29 – 37 – 48 – 64 – 67 – 84 – 88 – 92 – 96 – 101 – 120 – 124 – 134 – 135; 1996/2 – 8 – 18 – 21 – 34 – 38 – 42 – 43 – 49 – 54 – 73 – 86 – 91 – 103 – 119 – 353; 1997/11 – 19 – 32 – 33 – 82 – 89 – 113 – 118 – 130 – 140 – 148 – 152 – 153 – 154 – 187 – 191 – 200 – 606; 1998/6 – 8 – 50 – 51 – 56 – 85 – 162. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used. 23. The applicant supplied a list of works that had led to prosecutions in the National Security Courts together with general information on sentences that had been handed down and proceedings then pending against a number of writers and publishers. He produced, as examples, copies of several judgments against İ.B., a writer, and A.N.Z., an editor, who had been convicted notably of inciting the commission of offences and of disseminating pro-Kurdish propaganda. These were judgments nos. 1991/149; 1993/109 – 148 – 169 – 229 – 233; 1994/28 – 143 – 249 – 257; 1995/10 – 32 – 84 – 225 – 283 – 319 – 327 – 436; 1996/87 – 136 – 175 – 213 – 214 – 252; 1997/49 – 50 – 53 – 63 – 120 – 167 – 274 – 571; 1998/22 – 23. 24. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage: “There may be acts affecting the existence and stability of a State such that when they are committed, special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence.” The composition and functioning of the National Security Courts are subject to the following rules. 25. The constitutional provisions governing judicial organisation are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” “Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution ” “National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security. National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors. The president, one of the regular members, one of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges. Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years. Appeals against decisions of National Security Courts shall lie to the Court of Cassation. ...” “Military legal proceedings The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law ...” 26. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide: “In the capitals of the provinces of … National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.” “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” “The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank …” “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years … … If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.” “National Security Courts shall have jurisdiction to try persons charged with … (d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution, (e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free democratic system of government, and offences which directly affect the State’s internal or external security. …” “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession … The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.” “A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court ” 27. The relevant provisions of the Military Legal Service Act are worded as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence …” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces … … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors …” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file …” “When military judges … sit in court they shall wear the special dress of their civilian counterparts …” 28. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.” 29. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.
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train
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001-78866
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ENG
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TUR
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CHAMBER
| 2,007
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CASE OF FENER RUM ERKEK LİSESİ VAKFI v. TURKEY
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Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - payment of compensation or re-registration of the applicant's title to the disputed property at the Land Registry;Costs and expenses partial award - Convention proceedings
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András Baka;Ireneu Cabral Barreto;Jean-Paul Costa;Volodymyr Butkevych
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11. The applicant is a foundation existing under the laws of Turkey whose purpose is to provide educational facilities at the Greek Orthodox High School in Fener, Istanbul. It operates in accordance with the provisions of the Lausanne Treaty, which afforded protection to old foundations providing public services for religious minorities. It is one of a number of foundations dating from the Ottoman era. After the proclamation of the Republic it fell under Law no. 2762 of 13 June 1935, by virtue of which it obtained legal personality. In 1936, in accordance with section 44 of that Act, the applicant foundation filed a declaration indicating its aims and its immovable property. 12. On 10 October 1952 the applicant foundation acquired, by way of donation, title to part of a building situated in Istanbul. That acquisition was based on a certificate issued on 3 October 1952 by the Governor of Istanbul. The relevant part of that certificate read as follows: “Fener Rum Erkek Lisesi Vakfı is a legal entity authorised to acquire immovable property by virtue of the Foundations Act. It is run by an administrative board consisting of ... Further to a request of 3 October 1952 by the Beyoğlu Land Registry, the present document is issued for the purposes of the transaction concerning immovable property located at ... by virtue of section 2 of the Land Registry Act [Law no. 2644 of 29 December 1934 on the Land Registry – see paragraph 27 below].” 13. The immovable property in question was subsequently registered at the Land Registry. The applicant foundation duly paid property taxes in respect of its property. 14. Similarly, on 16 December 1958, the applicant foundation acquired, by purchase, co-ownership of another part of the same building. On 15 November 1958 the Governor of Istanbul had issued the certificate required by section 2 of the Land Registry Act, again indicating that “Fener Rum Erkek Lisesi Vakfı [was] a legal entity authorised to acquire immovable property by virtue of the Foundations Act”. The applicant’s title to that property was accordingly registered at the Land Registry and the relevant property taxes were duly paid. 15. On 15 July 1992 the Treasury lodged an application with the District Court of Beyoğlu (Istanbul) seeking the annulment of the applicant foundation’s title to the above-mentioned immovable property and the registration thereof in the name of the former owners, by virtue of the established case-law of the Court of Cassation. In support of its application, it argued in particular that the applicant did not have the capacity to acquire immovable property. In addition, given that the property in question was not mentioned in its declaration of 1936, an instrument regarded as the legal foundation constitution (vakıfname) of those establishments in accordance with the case-law of the Court of Cassation, the applicant was not entitled to obtain the relevant title. The Treasury therefore requested that the property be re-registered in the name of its former owner. 16. On 19 December 1994, further to a request from the District Court, an expert in cartography and land surveys filed a report on the case. Referring to the case-law of the combined civil divisions of the Court of Cassation, as established on 8 May 1974 (see paragraph 28 below), he observed that foundations belonging to religious minorities as defined by the Lausanne Treaty which had not indicated in their constitution a capacity to acquire immovable property were precluded from purchasing or accepting gifts of such property. Consequently, the real estate of such foundations was limited to the property indicated in their constitutions, which had become final with the declarations of 1936. In conclusion, the expert considered that the applicant foundation’s title should be annulled, as it lacked the capacity to acquire immovable property, and that the property in question should be re-registered in the name of its former owners. 17. Before the District Court, the applicant foundation objected to the characterisation given to the 1936 declarations by the Treasury. It contended in particular that these declarations had been required by the State for the registration of the assets and income of foundations and that they could not be regarded as constitutive instruments. It further argued that such foundations did have the capacity to acquire property, by virtue of the Land Registry Act. 18. In a judgment of 7 March 1996 granting the request of the Treasury, the District Court ordered both the annulment of the applicant’s title and the re-registration of the property in the name of the former owners. It found in particular as follows: “As the Treasury stated, the defendant foundation did not indicate in [its] declaration of 1936 ... its [disputed] acquisitions by way of donation and purchase. Thus, as observed in the expert’s report, those acquisitions are devoid of legal basis and must accordingly be struck out of the land register and re-registered in the name of the former owners.” 19. On 17 April 1996 the applicant foundation appealed to the Court of Cassation. It relied in particular on its right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1. Its appeal was dismissed on 11 June 1996. 20. On 9 December 1996 the Court of Cassation dismissed an application by the applicant foundation for rectification of the judgment of 11 June 1996. 21. On 16 October 2000 the applicant foundation submitted a request to the Directorate-General of Foundations (the “Directorate”) for the amendment of its constitution. It sought a new constitutive instrument that would grant it the capacity to acquire immovable property. The request was rejected on 20 October 2000. In the grounds for its decision, relying on the judgment of the combined civil divisions of the Court of Cassation of 8 May 1974, the Directorate observed that the 1936 declarations by foundations of religious communities were to be regarded as the “constitutive instruments” of those establishments and that amendment of those constitutions was impossible for reasons of public policy. 22. The Government argued that the striking-out of the applicant’s title from the land register did not take place until 2002. In this connection they referred to a decision taken by the Beyoğlu Municipal Council on 13 March 2001 whereby the applicant foundation, as owner, together with its tenant, had been fined for adding an additional storey onto the building without authorisation. 23. Prior to 1912, foundations (vakıf) were not recognised as legal entities in the legal system of the Ottoman Empire. Not having legal personality, they used to have their property registered at the Land Registry in the name of a holy person who had died or of a living person in whom they trusted. A Law of 16 February 1328 anno Hegirae (1912), granting foundations the right of ownership, thus recognised their legal personality. Under that Law, foundations were entitled to have their property registered at the Land Registry. 24. After the Republic was proclaimed in 1923, the Civil Code and Law no. 864 on the implementation and application of the Civil Code came into force on 4 October 1926. Section 8 of Law no. 864 provided as follows: “A special Law will be enacted to govern the operation of foundations established before the entry into force of the Civil Code. Establishments founded after the entry into force of the Civil Code shall be governed by the provisions of the said Code.” 25. Law no. 2762 was thus enacted on 13 June 1935 and it recognised the legal personality of foundations set up under the Ottoman Empire. The legal status of foundations established after the entry into force of the Civil Code of 4 October 1926 was, however, governed by the Code itself. 26. Law no. 2762 imposed an obligation for foundations that had been created under the Ottoman Empire to submit a declaration indicating, among other things, the nature and amount of their income. For that purpose it contained the following transitional provision: “A. Representatives ... of foundations which have not registered with the Directorate-General of Foundations ... shall file with it a declaration [beyanname] indicating the nature and amount of their income ... for the previous year ..., within three months from the entry into force of the present Act ...” 27. The Land Registry Act (Law no. 2644 of 22 December 1934) provided in section 2 as follows: “Legal entities, in order to register transactions at the Land Registry, shall request the higher authority of the district in which their registered offices, or those of their branches, are located, to issue them with a certificate indicating their capacity to acquire immovable property and the power of the legal entity’s representative to enter into such transactions. ...” 28. In the case-law established by its judgment of 8 May 1974, the Court of Cassation decided that the declarations of 1936 were to be regarded as the constitutive instruments of the vakıf, finalising their constitutions. Unless the declaration included an express provision to such effect, foundations were not entitled to acquire immovable property other than that declared in the said document. The Court of Cassation appeared to consider that the acquisition by foundations of this type of property, in addition to that which was indicated in their constitution, could constitute a threat to national security. The court stated in particular as follows: “The acquisition of immovable property by legal entities set up by persons who are not Turkish is prohibited. It is evident that the State would be exposed to various risks if it granted such foundations the capacity to acquire immovable property ... The last paragraph of section 1 of the Foundations Act provides that the management of foundations belonging to religious communities and artisans is to be entrusted to the persons and organs appointed by them. A legal status is thus created for them, without prejudice to their legal personality. Under section 44 of the Foundations Act, the places [yerler] indicated in the registers and other similar documents filed with the Land Registry following the enactment of the Law of 16 February 1328 are transmitted, by this means, to the register of foundations. Consequently, it is appropriate to regard the declarations filed under section 44 of the above-mentioned Act by such organisations – now foundations – belonging to communities and engaged in charitable, scientific or aesthetical activities, as being their legal foundation constitutions [vakıfname]. A foundation is not entitled to acquire property unless it expressly indicated its capacity to do so in its constitution and the same applies to charities. They are not entitled to acquire immovable property, whether directly or by inheritance, if it is not clearly stipulated in their declaration that they can accept gifts ...” 29. Lastly, the legislation governing foundations was changed in 2002. Section 4 of Law no. 4771 of 9 August 2002 provides as follows: “A. The following paragraphs shall be added at the end of section 1 of the Foundations Act of 5 June 1935. Religious community foundations, whether or not they have a constitution, shall be entitled to acquire or possess immovable property, with the authorisation of the Council of Ministers, in order to meet their needs for religious, charitable, social, educational, sanitary or cultural purposes. If a request is made within six months from the entry into force of the present Act, immovable property of which any form of possession is recorded in tax registers, leases or other documents shall be registered at the Land Registry in the name of the foundation in order to meet the needs of such foundations for religious, charitable, social, educational, sanitary or cultural purposes. Property that has been donated or bequeathed to the foundation shall be governed by the provisions of the present section.” 30. Moreover, section 3 of Law no. 4778 of 2 January 2003 provides that “religious community foundations” are now entitled to acquire and alienate immovable property, whether or not they have a constitutive instrument.
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